9 - Charles Mercieca

Charles Mercieca Prosecuting and Defending White-Collar Crime

Charles Mercieca was GħSL’s Marketing Officer and Vice-President during his fourth and fifth years at the University of Malta respectively.

He graduated from the University of Malta with a Bachelor of Laws and a Master of Advocacy. He then pursued an LL.M in Criminal Law and Criminal Justice with a special focus on white collar crime and money laundering at the University of Leeds.

He has now been working as a criminal prosecutor at the Officer of the Attorney General for the past two years.

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1. Introduction

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n this paper, the author examines the challenges created by the ambiguities of white-collar crime during the criminal process,1 specifically, during the defence and prosecution of white-collar crime. The author focuses on critically analysing these challenges with the purpose of suggesting the best practices developed by professional prosecutors, defence lawyers and judges in light of the ambiguity exhibited in a white-collar case.2 The first substantive part of the essay (section 1.2) centres around a critical analysis of the challenges faced by prosecutors in white-collar investigations and cases. The author examines the elements considered by a prosecutor in making the decision to investigate and subsequently the decision to indict.3 As opposed to conventional crime, the investigatory process of white-collar crime, plays a crucial role in such cases as the process determines the outcome of white-collar cases.4 In the second substantive section (section 1.3), the author examines the effects of the legal ambiguity of white-collar crime on the process of defending a white-collar defendant. As opposed to conventional crime attorneys, where the essential part of litigation takes place during the trial, the bulk of white-collar defence takes place during the investigatory pre-trial period.5 This shall also help to underscore the challenges and differences between white-collar crime defence and street crime defence.

1 The criminal process shall refer to the stages during which the prosecuting authority decides to investigate an individual or a corporation and runs through the indictment and trial.

2 For a general introduction on the challenges of prosecuting, defending and adjudicating white-collar crime, see David Friedrichs, Trusted Criminals: White Collar Crime in Contemporary Society (4th edn, Wadsworth, Cengage Learning 2010) ch. 11.

3 Due to possible variations of the definition of an indictment and how it is issued in different jurisdictions, the term for the purposes of this essay shall refer to the formal process of charging a corporate entity or individual. Indictments in the United States are sometimes issued by a Grand Jury; however, in the continent an indictment is more commonly issued by the public prosecutor. For more see David Friedrichs, Trusted Criminals: White Collar Crime in Contemporary Society (4th edn, Wadsworth, Cengage Learning 2010) 319.

4 David Friedrichs, Trusted Criminals: White Collar Crime in Contemporary Society (4th edn, Wadsworth, Cengage Learning 2010) 309.

5 See Kenneth Mann, Defending White Collar Crime: A Portrait of Attorneys at Work (New Haven: Yale University Press, 1985).

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2. Prosecuting White-Collar Crime 2.1 General prosecutorial challenges in investigating white-collar crime White-collar prosecutors face two primary challenges to a successful investigation of a white-collar offence. Namely, these challenges concern the resources available to the prosecutor and the standard of proof required of the prosecutor in criminal trials.

First and foremost, prosecutorial agencies often experience a significant lack of resources. Primarily owing to the defendant’s deep pockets, prosecutors often face highly experienced defence lawyers who are devoted to their client’s exculpation as opposed to more modestly paid public defendants in conventional crime cases.6 However, the imbalance of resources is not only exclusive to the defendant’s finances. More specifically, resources include manpower and expertise to handle the common, highly complex and drawn out white-collar case.7 Prosecutorial agencies may lack specialist units and highly trained investigators who lack the tenacity for protracted litigation.8 On the other hand, the defence counsel is known to take advantage of the prosecution’s limited resources by relentlessly seeking conferences with prosecutors and litigating subpoenas in a bid to delay investigations as much as possible.9 These delay tactics are not unique to white-collar cases; however, they may be deadly for a white-collar prosecution.10 Passage of long periods of time may see a change in public prosecutors11, a cooling down of public impetus for “justice” and earn the defaulting corporation enough time to either remedy the wrong or, more significantly, cover it up12. However, delays and drawn out investigations are not always related to counsel’s strategies. White-collar investigations usually involve mammoth amounts of 6 Walter Pavlo, ‘The High Cost Of Mounting A White-Collar Criminal Defense’ (Forbes, 30 May 2013) <https://www.forbes.com/sites/walterpavlo/2013/05/30/the-high-cost-ofmounting-a-white-collar-criminal-defense/#1667ed4910bd> accessed 2 June 2018.

7 Lucian E. Dervan and Ellen S. Podgor, ‘Investigating and Prosecuting White-Collar Criminals’ in Shanna R. Van Slyke, Michael L. Benson, and Francis T. Cullen, The Oxford Handbook of White-Collar Crime (Oxford University Press 2016) 561.

8 John L. Masters, ‘Fraud and Money Laundering: The Evolving Criminalization of Corporate Non-Compliance’ (2008) 11(2) Journal of Money Laundering Control 103, 111.

9 Herbert Edelhertz, The Nature, Impact and Prosecution of White-Collar Crime (National Institute of Law Enforcement and Criminal Justice 1970) 45.

10 ibid 49.

11 ibid 46.

12 Dervan and Podgor (n 7) 565.

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evidence as opposed to the usually manageable quantities for conventional crimes.13 It is worth noting, that despite of (or due to) the length of whitecollar investigations, defence attorneys have increasingly started to adopt a strategy of cooperation in white-collar investigations.14 Cooperation may assist to expedite investigations by explaining the corporation’s behaviour, thus avoiding prosecution.15 The second challenge is for the prosecutor to obtain the standard of proof which is ‘beyond reasonable doubt’.16 In white-collar crime cases, the standard of proof requires the prosecutor to go beyond simply proving the subsistence of harm but also presenting evidence which can easily be understood by the jurors.17 The problem is accentuated because the essence of white-collar cases is usually the mens rea of the defendant, and in the often ambiguous white-collar crime the mens rea is the hardest component to prove.18 To this effect, Herbert Edelhertz sustains that: ‘If five manufacturers equally raise their prices within a one week period, there will be no antitrust violation if they did so independently and without collusive communications or agreements, but there will be a criminal violation if their actions did involve such communications and agreements. The basic issue of criminal intent thus would depend on inferences or actual proof of collusive agreements, even though there would be no problem of proof with respect to the simultaneous price rise.’19 On the other hand, a lower standard of proof is required in civil proceedings which makes civil litigation a compelling alternative for prosecuting white-collar offences.20 The lower burden of proof in civil proceedings affords the prosecutor a better chance at successfully resolving a white-collar case while ensuring that financial 13 Randall Eliason, ‘Why White Collar Investigates take so Long’ (Sidebars, 21 December 2017) <https://sidebarsblog.com/why-white-collar-investigations-take-so-long/> accessed 2 June 2018.

14 Pamela H. Bucy, Elizabeth P. Formby, Marc S. Raspanti, Kathryn E. Rooney, ‘Why Do They Do It?: The Motives, Mores, and Character of White Collar Criminals’ (2012) 82(2) St John’s Law Review 401, 433.

15 Mann (n 5) 85.

16 Dervan and Podgor (n 7) 575.

17 Kurt Eichenwald, ‘White collar Defence Stance: The Criminal-less Crime’ (The New York Times 3 March 2002) <https://www.nytimes.com/2002/03/03/weekinreview/the-nationwhite-collar-defense-stance-the-criminal-less-crime.html> accessed 2 June 2018.

18 Francis T. Cullen, Gray Cavendar, William J. Maakestad, and Michael L. Benson, Corporate Crime under Attack: The Fight to Criminalize Business Violence (2nd edn, Anderson Press 2006).

19 Edelhertz (n 9) 47.

20 Dick Thornburgh, ‘The Dangers of Over-Criminalisation and the Need for Real Reform: The Dilemma of Artificial Entities and Crimes’ (2007) 44 American Criminal Law Review 1279.

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penalties (equivalent, if not more, to criminal monetary penalties) are still imposed on the defaulting party.21

2.2 Challenges in the Detection, Investigation and Indictment of WhiteCollar Crime The success of a white-collar crime prosecution primarily depends on the quality of evidence gathered during the investigatory period and a welldefined bill of indictment.22 As is in the case for conventional crime, the impetus for the authorities to investigate and prosecute white-collar crime fundamentally depends on the prosecutor’s ability to detect the offence.23 The detection of conventional crime is traditionally based on the victim’s complaint. However, since the victim of a white-collar offence often remains unidentified, the detection of white-collar crime is significantly hampered.24 The principal channels through which white-collar crimes are discovered are: whistleblowing,25 a corporation’s internal reporting structures26, and compliance agencies which actively search for violations27. The obscure identity of the victim of white-collar crime has further implications for the detection of white-collar crime. Through their ability to tender witness evidence, victims play a key role in the prosecution of an offence.28 However, because the victims of white-collar crime often remain unidentified, the prosecuting authority suffers a significant setback to the collection of evidence and, by extension, overcoming the burden of proof. The prosecution compensates for these lacunae by adopting intrusive legal tools such as 21 Kenneth Mann, ‘Punitive Civil Sanctions: The Middle Ground Between Criminal and Civil law’ (1992) 101 Yale Law Review 1795.

22 Edelhertz (n 9) 43 - 44.

23 It shall be assumed that the public prosecutor is the principal agent in the investigation and collection of evidence for trial. Some jurisdictions may have governmental Financial Investigatory Units who work in conjunction with the public prosecutor to investigate and prosecute white collar offences.

24 Dervan and Podgor (n 7) 561.

25 Lucian E. Dervan, ‘Responding to Potential Employee Misconduct in the Age of the Whistleblower: Foreseeing and Avoiding Hidden Dangers’ (2008) 3 Bloomberg Corporate Law Journal 670.

26 Philip A. Wellner, ‘Effective Compliance Programs and Corporate Criminal Prosecutions’ (2005) 27 Cardozo Law Review 497.

27 Edelhertz (n 9) 23.

28 Stuart L. Hills, Crime Power and Morality The Criminal Law Process in the United States (Chandler Publications 1971) 10; see also Edelhertz (n 9) 24.

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search warrants and subpoenas29 in an effort to learn the defence’s strategic position and control what information the defence has access to.30 Mann, in his study of white-collar investigations,31 recorded a defence attorney admitting that: ‘A lot of white-collar investigations are not all that specific…a lot of them are really in the area of hunting for the needle in the haystack until they [the prosecuting agent] really hit on something’32 This observation is critical because government fishing expeditions, especially if unfounded, may wreak unrepairable harm on a corporation’s reputation. Thus, it is advisable that both individuals and corporations retain legal counsel well versed in white-collar crime compliance.33 What motivates a prosecutor to investigate white-collar crime is less obvious than that for conventional crime. Some motivators consist of victim outrage, political influence and resources.34 A study which interviewed over twenty-eight defence attorneys concluded that prosecutors seem to be mostly motivated from the publicity and media attention of a white-collar offence case rather than other factors.35 The same study investigated what motivates public prosecutors to make the decision to prosecute white-collar crime. Nearly forty-one percent of former prosecutors interviewed agreed that when deciding whether to prosecute what matters is the pervasiveness of the illegal conduct, the type of the harm and the extent of the harm.36 Prosecutors also considered the possibility of conviction, involvement of upper management, and the effect of the harm on innocent affiliates.37 These findings are consistent with the Principles of Federal Prosecution of Business Organisations38 which sustain nine factors39 for prosecutors to consider in deciding whether to prosecute a corporation with a criminal offence. The principles focus on inter alia: the seriousness 29 Peter J. Henning, ‘What a Search Warrant Means’ (The New York Times, 23 November 2010) <https://dealbook.nytimes.com/2010/11/23/what-a-search-warrant-means/> accessed 2 June 2018.

30 Mann (n 5) 79.

31 Ibid part II. 32 ibid 80.

33 Robert Creamer, ‘Criminal Law Concerns for Civil Lawyers’ (2005) 52 Federal Lawyer

34.

34 Edelhertz (n 9 42.

35 ibid 418.

36 ibid.

37 ibid.

38 United States Department of Justice, ‘U.S. Attorney’s Manual’ (1997) s.928.00.

39 For the nine factors see United States Department of Justice, ‘U.S. Attorney’s Manual’ (1997) s.9-28.300.

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and risk of harm of the offence, the pervasiveness of the wrongdoing, the company’s cooperation and previous track record, and the effectives of the company’s compliance program.40 It can be immediately noticed that prosecutors and the Principles afford significant importance to the harm generated by an alleged offence. This can potentially present a stumbling block for the success of prosecutions due to the ambiguity of harm in whitecollar offences.

Due to these difficulties, and the aforementioned prosecutorial challenges, only a small amount of white-collar criminal cases ultimately make it to the criminal court to stand trial.41 A large majority of white-collar cases are settled during the investigatory stage.42 In the US cooperation is usually achieved through mechanisms such as deferred prosecution agreements (DPA), or agreements for cooperation reflecting the guidelines established in inter alia the Holder and Thompson memos.43

3. Defending White-Collar Crime The nuances which have been seen to distinguish white-collar crime from street crime have resulted in significant developments in the way in which a white-collar case is defended. In this section, the author examines the role of the defence lawyer during two distinct stages of the criminal defence process: the pre-trial stage; and the trial stage. In the first place, the defensive strategies during the investigatory and pre-trial stage shall be examined;44 namely, the strategy of information control and plea bargaining during the investigatory stage. Secondly, the author puts forward substantive defences which are commonly advanced during a white-collar crime trial. It is important to note that this part of the paper shall only focus on the pre-trial and trial defence.45 40 See s. 9-28.400, s. 9-28.500, s. 9-28.600, s. 9-28.700 and s. 9-28.800 respectively.

41 Dervan and Podgor (n 7) 562.

42 Friedrichs (n 4) 309 and see Rodney Huff, Christian Desilets, and John Kane, The 2010 National Public Survey on White-Collar Crime (National White-Collar Crime Center 2010).

43 Friedrichs (n 4) 315.

44 The pre-trial stage shall be taken to encompass the series of events which take place from the moment where the investigating authority starts investigating an alleged white-collar crime till the moment that an indictment is levied against the corporate offender.

45 The author notes that ‘Defending White Collar Crime’ by Kenneth Mann is one of the, if not the, foremost works which pioneered the defence of white-collar crime. It is for this reason that the works of Mann shall be the foundation

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3.1 Investigation and Pre-Trial 3.1.1 Information control

Information control and its importance to the success of a whitecollar defence cannot be overstated.46 The objectives of the white-collar defence lawyer during the investigation and pre-trial stage are twofold: to control potentially inculpatory information47 and to understand when to negotiate in order to avoid indictment.48 In sum, the overarching objective for the white-collar defence lawyer is to control what information the prosecution gains access to. Thereby ‘minimise[ing] damage at every single stage of the criminal justice process’49.

Generally, the effectiveness of a white-collar attorney as opposed to a conventional blue-collar attorney is thought of in terms of the former’s ability to get hostile judges off cases, block hostile witnesses50 and engage in vigorous public relations campaigns in order to bolster their client’s reputation51. However, the role of a white-collar attorney has come to represent a more substantive portion of white-collar defence. Upon discovery of a governmental investigation into a person’s52 potential criminal conduct, it is imperative for the person to immediately consult with a white-collar criminal defence attorney.53 During the investigation and after identifying the relevant information sources the attorney has two principal methods to control information. 54 Mann dubs these two strategies as managerial for the paper’s critical examination of the defence of white-collar crime. Other critical academic works and studies shall be consulted in order to enhance and offer the most robust representation of the narrative involved in defending a white-collar case; see Mann (n 5).

46 See Mann (n 5) 7.

47 The ethical nuances surrounding this conduct is not in the scope of this paper and thus shall not be discussed in detail. For a critical analysis on the ethical significance of such see generally Mann (n 5) 240-250.

48 See Francis Lee Baily and Henry Rothblatt, Defending Business and White Collar Crimes: Federal and State (2nd edn, Lawyers Cooperative Publishing Co 1984); and Mann (n 5).

49 Friedrichs (n 4) 320.

50 Ralph Nader and Wesley Smith, No contest; corporate lawyers and the perversion of justice in America (New York: Random House1996).

51 Roger Magnuson, The White Collar Crime Explosion: How to Protect Yourself and Your Company from Prosecution (McGraw-Hill 1992).

52 “Person” shall be taken to refer to both legal and natural persons.

53 Dervan (n 25) 670.

54 Gottschalk identifies seventeen possible sources of information relevant to the white-collar attorney: interview, network, location, documents, observation, action, surveillance, communication control, physical material, internet, accusations, exchange, media, po-

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information control and adversarial information control.55 The former stratagem for information control focuses on instructing or persuading the holder of the inculpatory information to refrain from disclosing it to the investigating authority, while the latter focuses on controlling information through adversarial litigation in a court setting. Here the attorney challenges improperly obtained evidence or the admissibility of the same. Critically, however, the author posits that the strategies would have been more robust if they also included the attorney’s role in controlling information already obtained by the investigating authority and the process whereby the attorney attempts to persuade the investigating authority not to indict a client. Mann only considers these two modalities under a separate heading entitled ‘substantive legal argument’56 or ‘pre-charge litigation’57. For this reason, the author shall refer to the control of information which is within the client’s sphere of influence as ‘direct information control’. On the other hand, information which is not in the client’s sphere of influence and thus can be believed to be in the adversary’s sphere of influence shall be referred to as ‘indirect information control’. The rationale behind the words ‘direct’ and ‘indirect’ shall become evident in the following explanations.

Direct information control techniques focus on the sources of information within the client’s spheres of control and how the white-collar attorney gains access to and control over that information.58 The importance of such was highlighted by defence attorneys in a study on white-collar cases.59 The interviewed attorneys stressed that direct information control techniques allow for the wrongdoing to be efficiently identified and addressed.60 Moreover, over half of the study participants agreed that a corporation should follow an internal compliance strategy consisting of internal investigations and international punishments which greatly expedite direct information control techniques.61 Importantly, a robust direct information control process can help the attorney to stay one step ahead of licing systems, employees, control authorities, and external data storage; see Peter Gottschalk, ‘White-Collar Crime Defense Strategies’ (2013) 4 Problems of Russian and International Law, 28.

55 Mann (n 5) 7.

56 Mann (n 5) 9.

57 ibid 193.

58 Such information often resides within the client’s internal infrastructural set up; see Dervan and Podgor (n 7) 567.

59 Pamela H. Bucy, Elizabeth P. Formby, Marc S. Raspanti, Kathryn E. Rooney, ‘Why Do They Do It?: The Motives, Mores, and Character of White Collar Criminals’ (2012) 82(2) St John’s Law Review 401.

60 ibid 420.

61 ibid 421.

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the investigatory authority and to identify potentially inculpatory evidence.62 The most immediate and usually accessible sources within the clientâ&#x20AC;&#x2122;s sphere of influence are employees and documentary evidence.63 Both of these sources must be properly identified in order to gather information about the possible focus of the governmental investigation.

First, employees will be interviewed to learn and gather information about the government inquiry. Generally, if a stance of non-cooperation is taken, employees or other potential witnesses may be instructed to refrain from disclosing information to the government.64 It is then important that for the sake of avoiding potential conflicts of interest, these interviews are carried out under attorney-client privilege. This practice was developed from the landmark case of Upjohn Co. v. United States65. The case established that prior to any interview, the employees are given an Upjohn warning.

An Upjohn warning requires the attorney to clarify with the interviewed employee that the attorney-client privilege and the control of such belongs to the corporation not the individual employee.66 This masks the interview in a shroud of attorney-client privilege thus permitting the corporation the sole discretion to decide whether to protect the information or disclose it in the eventuality of cooperation with the authorities.67 Second, direct information control requires that documentary evidence is collected and interpreted.68 One of the most time-efficient methods used to achieve this often mammoth task is to circulate a documentsearch memorandum asking employees to provide the attorney with documents pertinent to the investigation.69 It is very important that during this process the attorney must ensure that not a single document is destroyed or tampered with. The objective and skill of the white-collar defence attorney is to suppress and control incriminating evidence and not destroy it. An additional challenge often faced by white-collar attorneys engaged in the process of direct information control is the interpretation of highly technical documentary evidence. For this reason, white-collar attorneys often retain an accountant in their retinue in order to assist them during the process 62 63 64 65 66 67 68 69

Friedrichs (n 4) 320.

Dervan and Podgor (n 7) 567 - 568.

Friedrichs (n 4) 320.

449 U.S. 383 (1981).

Dervan (n 25) 677. ibid. ibid.

Dervan and Podgor (n 7) 568.

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of direct information control.70 These accountants came to be known as Kovel accountants after the landmark case of Kovel v. the United States71.

Importantly, the judgment established the Kovel doctrine which stipulates that the attorney-client privilege also extends to the communications and work of accountants assisting the attorney.72 The implications of the Kovel doctrine are several but the most important one is that through the Kovel accountant the attorney gains control over a client’s potentially sensitive documents and is able to protect them from the government’s investigation in ways which the client’s regular accountant would not be able to.73

Indirect information control techniques focus on the sources of information within the adversary’s sphere of control or those which neither party has control over.74 The attorney has three principal methods of gaining access to information held by the investigating agent. Information can be gathered by holding a meeting with the prosecuting agent, tracking the investigator and accessing public domain government documents.75 Firstly, a meeting with a government agent will present the attorney with an opportunity to inter alia gather facts about the investigation, to learn the prosecutor’s strategy, learn the identity of witnesses and evidence already collected, and prevent the disclosure of potentially incriminating evidence.76 According to Mann, the attorney can adopt one of three distinct styles during a meeting with the prosecuting authority.77 An attorney may either engage in passive listening, adversarial argument, or claim the intention to assist the prosecutor. Depending on the stage of the investigation and the attorney’s familiarity with the investigating prosecutor, each style ensures the attorney achieves access to information. Passive listening can achieve access to information especially when the attorney has no information at all about the case. However, when the client manages to supply the attorney with an adequate explanation of the events being investigated, the attorney may want to spark an adversarial argument with the prosecutor in order to provoke 70 Mann (n 5) 62.

71 296 F. 2d 918 (2d Cir. 1961).

72 For more about attorney-client privilege and third-party consultants see generally Michele DeStefano Beardeslee, ‘The Corporate Attorney-Client Privilege: Third-Rate Doctrine for Third-Party Consultants’ (2009) 62 Southern Methodist University Law Review 727.

73 Mann (n 5) 63.

74 These sources of information include information which may have already fallen into the investigator’s hands or information which is embedded; see Mann (n 5) 232-234.

75 Mann (n5) 79, 85, 94 respectively.

76 ibid 79.

77 ibid.

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more information.78 The second method of gaining access to information held by the government is by tracking the investigator’s movements thereby interviewing the same people and acquiring the same documents as the investigator. This method allows the attorney to remain appraised of places from which the investigator is drawing information, thus allowing the attorney to gain an invaluable insight into the prosecution’s investigation. Thirdly, the attorney can obtain information from government documents in the public domain. Albeit inconspicuous, this source of information can be a very good indication of the extent of the government’s knowledge and practices about the industry being investigated.79

Rigorous direct and indirect information control strategies will ensure the positive resolution of the investigation in favour of the whitecollar attorney’s client. The control of information affords the attorney insight into uncertainties in the prosecution’s case which if discovered may be used in exculpating a client. This is important as uncertainty in a criminal case is ‘enough to resolve the doubts in favour of the defendants’80.

4. Conclusion In conclusion, the author set out to critically examine the challenges presented by the ambiguity of white-collar crime within the context of the prosecution and defence of white-collar crime. The paper first presented the two general challenges faced by white-collar crime prosecutors: a limited resource pool and a high burden of proof. The implications of these two challenges resulted in a reduced amount of investigations being prosecuted and taken through the criminal process. Instead, cooperation and negotiation were seen to be given preference over all out litigation. In response to the challenge of the high burden of proof and in light of the other challenges, the author suggested that in some cases of business crime and tax evasion, civil remedies may be a better alternative to criminal prosecution. Further research on the adaptability of civil remedies to white-collar crime is strongly suggested.

78 White-collar attorneys interviewed by Mann claimed that refusing to cooperate and asking challenging questions such as: ‘I ask you how can you justify this to yourself without giving us a chance to examine the situation which you suspect constitutes crime?’ was an effective way of acquiring information form a prosecutor; see Mann (n 5) 81,83.

79 See Mann (n 5) 94.

80 United States v. Mersky 361 U.S. 431 (1960).

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The specific prosecutorial challenges of detection, investigation and indictment of white-collar crime were analysed in the succeeding section.

The significantly low rates of detection of white-collar offences force prosecutorial agencies to diversify their investigatory techniques. This has implications on what motivates the prosecutor to initiate investigations into a defaulting entity. From an examination of a study interviewing prosecutors on what motivates white-collar crime prosecution and the Principles of Federal Prosecution of Business Organisations it was concluded that both the prosecutors and the Principles attribute a lot of weight to the harmfulness of the alleged white-collar offence. Critically, the author suggests that due to the ambiguity of harm in white-collar offences, prosecutions may be more effective if the emphasis is placed on a form of strict liability vis-Ă -vis a corporationâ&#x20AC;&#x2122;s compliance practices.

The second section critically treated the white-collar attorneyâ&#x20AC;&#x2122;s modus operandi during the investigatory stage, which was developed in response to the complexities of white-collar crime. The author posited two information control strategies which compliment those suggested by Mann. The strategy of direct information control and the strategy of indirect information control were critically analysed as two of the most important strategies available to a white-collar attorney. It was established that their most important function was to avoid indictment and minimise the harms of a criminal investigation for the client. It may be concluded that traditional criminal law procedures are not in harmony with white-collar criminal practice.

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