When it comes to FCPA lawyers, there are those who talk the talk, and there are those who walk the walk. Or, as I like to put it, just because you worked on an FCPA document review three years ago doesn’t make you an FCPA lawyer. If you look at law firm web sites, every firm in existence now seems to have an FCPA practice.
As more companies realize they need professional FCPA advice, who can they turn to?
Here’s my advice to those seekers of advice. [A word of caution: I'm going to name names in this piece. But while I know a lot of people in this area, I certainly don't know everyone. I'm sure there are plenty of great attorneys out there who play in this space that I don't know. Also, there's a significant "relationship" aspect to choosing an attorney. It's not the smartest lawyer, necessarily. It's the lawyer who has what I need who I trust. Below are some who fit that bill for me. Your experiences are your own. Feel free to add your favorites in the comments. Also, names are listed in no particular order.]
My first piece of advice is that there’s no one-size-fits-all attorney. I would actually recommend using a variety of attorneys. The main division, in my mind, is between “something has happened” attorneys and “advice” attorneys.
If something has happened, some event, you need an attorney. If something really bad has happened, I’d call in one of the “deans” of the FCPA bar: Dan Newcomb (Shearman), Roger Witten (WilmerHale), Homer Moyer (Miller Chevalier), Marty Weinstein (Willkie), Joe Warin (Gibson Dunn), someone like that. They’re expensive, but you’re going to need them. In my opinion, if you’re in that situation, you need a global firm. There are lots of great local and regional firms, but having a huge firm gets you the reach you need: native Mandarin speakers who actually sit in China, for example.
If you’re in a situation and want to know what the DOJ’s reaction is going to be, there is really only one person to call. And if you have to ask me who, you’re in over your head. (It’s Mark Mendelsohn at Paul Weiss).
For every other event-type situation, including internal investigations that don’t reach more than, say, 4 markets, I wouldn’t personally use one of the “deans.” You don’t kill flies with a .45. I would actually suggest using one of the “new breed.” These are young lawyers who made partner in the last few years. Next generation’s “Deans of the FCPA Bar.” People like Claudius Sokenu (Arnold & Porter) and Cheryl Krause (Dechert). You get great work product at more reasonable prices, and you get an attorney you can grow with.
I would use a different set of attorneys for M&A review. If your company buys other companies, you need FCPA review in your M&A workflow. Personally, I like Gary DiBianco at Skadden. He knows this stuff backward and forward. Also, Lucinda Low (Steptoe) is fantastic (and probably falls into the “Deans of the FCPA bar” category). This is in addition to your overall M&A lawyer. You need a specialist for this stuff. And don’t overlook it. If there’s a hidden violation, your valuation can go down by tens (if not hundreds) of millions of dollars.
Those are the event-based attorneys I like. But there’s the other side of the house: advice-based attorneys.
Let’s further split that up: you need advice setting up a program, and you need advice during your day-to-day running of your program.
If I were a GC, and I wanted to set up a program, strangely enough, I wouldn’t hire an attorney. I would frankly try to hire away someone who does this stuff everyday. You don’t hear about these in-house people as often: they’re inward facing, not outward facing, and they don’t concern themselves with marketing, business development, PR, or anything like that. They just do the work.
The top of my list? Four come immediately to mind: Billy Jacobson (probably the most knowledgeable in-house guy around; good luck getting him away from Weatherford, though), Sarah DiLorenzo at McDonald’s, Noreen Fierro at Prudential, and Raja Chatterjee at Morgan Stanley. They each have significant experience, having done this for several years, and they have the business-savvy you need in a compliance officer. I find that lawyers sometimes take an outside counsel view of the world. They’re great at telling you what you need, but not as great telling you how to get it with the $14.86, paper clips, scotch tape, and six manilla folders that pretends to be your resources and budget. (And when you complain about resources, you’re then told you can work with two in-house attorneys overseas. When you reach out to those attorneys, they’ve never heard of you, and are already working until 2am every night redrafting client contracts which must, of course, take precedence.) I find that compliance officers do better than outside counsel in those kinds of circumstances.
Larger companies starting to develop FCPA compliance programs should also get Manny Alas from PWC on the phone. Worth his weight in gold, in my humble opinion. (One hint: before you call, ask your Finance person for the company’s chart of accounts. You’re going to need it). If Manny is out of your price range, there are literally hundreds of smaller shops. If you want good advice on a smaller budget, I’ve used Shealyn McGuire. Even though you’ve never heard of her, I can tell you that she’s excellent, and can do anything from the strategic stuff to project management. Speaking of project management; get a project manager on your FCPA staff. Outside counsel should not be used as project managers: lawyers aren’t taught project management in law school, which means they’re both bad at it and overpriced at the same time.
For everyday advice, I would go back to the “new breed” list. There’s a reason for that. What happens most often—and in my opinion is a mistake—is that a company hires a large firm for the “brand name” partner. But for everyday advice, good luck; if you can even get them on the phone, you’ll bust your budget asking them the small questions. What you end up with is an associate who they want to give experience to who was on an FCPA production once and now is listed under the FCPA practice.
The everyday stuff is important. Just as important, if not more so, than the strategic. This is where the rubber meets the road. Allow your FCPA Compliance person to pick someone they like for the everyday issues that come up. I’m talking about the what-do-other-companies-do-in-this-situation conversations, can-I-give-this-gift conversations. Stuff where your compliance person wants a reality check. Setting up your third-party diligence questionnaire. This lawyer really gets to know you, and gets to know your business. For this kind of stuff, Cheryl Krause is up there on my list. She’s practical, which is a rarity. The other reason I recommend the new breed is because the everyday questions turn into mini-investigations sometimes, and you want the same person who you deal with on a regular basis to be the first-pass investigations lawyer. You need the consistency. I would also recommend that if you know an associate in a firm who you trust and is good, I would specifically hire them. You’re going to get great service: you’ve just done them a huge solid by letting them bring in your business; they’re going to take your calls every time, and work their behinds off for you. And you still get to rely on the resources of their whole firm.
One note: I didn’t mention Tom Fox above. This is solely because I’ve never worked with him professionally. I just read his blog. But wow, it’s good. If I were looking for someone to be my go-to person for everyday advice, he’d be on my short list for sure. As I said at the start, a significant piece is the relationship. The lawyers I list above are ones I know personally, and would trust.
One additional note for companies just getting into FCPA: join TRACE. Get to know Alexandra. She really does know everyone. I’m a fan, obviously.