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David Benowitz on White Collar Crimes

White Collar Lawyer

Question: What is included in the category of white collar crimes?
: People tend to think of white collar crimes as paper-driven. For example, securities fraud, a lot of fraud-based cases or cases that don’t involve violence against someone. It’s the difference between a theft where you go into a store and take something, versus a theft where you manipulate some paperwork to cheat, or to take money from a company with false payments to employees. White collar means that money is taken with a pen instead of a gun. I think that’s the easiest way to think about the distinction.

And it can in all different areas. White collar crime can range anywhere from mortgage fraud, to health and welfare benefits, or straight health care fraud. It can relate to securities or investor fraud. Inducing someone to invest money, for example, under false pretenses, and then not providing the services that you said you would.

Question: How are investigations for white collar crimes typically conducted, are they extended over a long period of time?

Answer: Most of them are long-term investigations. Part of the issue is that by the time a potential client or a target is contacted the investigation is usually far along. I’ve had clients who have been intercepted on flights, in the airport. Someplace where they’re not expecting it. This is opposed to a non-white collar criminal investigation where, for example, you have a bank robbery where police are chasing you.

Normally, with white collar cases, the way the investigation starts is the government will maybe get a tip from a whistleblower, or they get some piece of information that leads agents to start investigating. What they do is, they’ll start subpoenaing documents, they’ll subpoena bank records, they’ll subpoena e-mails or they’ll try and get access to someone’s e-mails. Then, the agents might proceed using what would traditionally be non-white collar methods, like a wiretap or through an informant or cooperating witness. That’s typically how the investigation proceeds. But again, it’s usually at a slower pace than in the non-white collar context.

Question: When you have a new client being investigated for a white collar crime, or maybe having been charged with one, what do you tell them? Is there any advice you give them about how to handle themselves? Or is there any information about how things might go, what they can expect?

Answer: It’s pretty much the same as what I tell all clients. First is that you need to be quiet. You need to not to talk to anybody. The attorney/client privilege does not extend beyond the attorney. You can’t talk to your kids, you can’t talk to your mother. Don’t send e-mails around. You just need to be quiet, that’s your best weapon.

The other thing, particularly in white collar cases, I try to make sure that people understand that it’s a very long process. Just because, for example, the government has searched your home or your office or both, it doesn’t mean that we’re going to be in court right away. That’s just the first of many steps on that path once the case has begun in that fashion.

In white collar cases, a lot of times what’s difficult for a client to deal with is the stress of being under investigation, the uncertainty of not knowing what’s going on. And I try and relieve that by outlining steps that I’ll take, concrete steps that help them understand the process — understand what we’re going to do every step of the way.

For example, let’s review all of your bank records today. Next, we will go through and we’ll review your e-mails that we think the government might have a problem with and e-mails that we can use to our advantage. What I want you to then do is to go to your company and I want you to make copies of these records. And then, let’s take a look at those.

So, again, just giving people a step-by-step plan of how we’re going to handle the case goes a long way towards giving people a feeling of some certainty. And letting them feel like they’re in control of the situation. Because when a white collar case starts, it usually starts with that search warrant or subpoena and people feel like they’re out of control, that they’re not in control of their world anymore.

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