November 20, 2016

NexGen White Collar: Five Ways to Maximize a Fast-Changing Market

Jonny Frank

White-collar crime attorneys face extraordinary market pressures: increased competition among well-qualified lawyers, client demand for industry expertise, severe budgetary constraints, off-shore e-mail and document reviews, and a growing number of in-house white-collar crime practitioners and investigation departments, to name a few.

Although challenging, change often brings extraordinary opportunities; those who prepare accordingly not only will be in a better position to meet these challenges, but likely will stay steps ahead of the competition as well. Below are five practical ways white-collar crime defense attorneys can thrive in this highly competitive market.

1. Manage Shifting Client Expectations

It goes without saying that law firms must anticipate changes in clients’ expectations. In a recent study of legal service purchasers by Deloitte Legal, nearly half of the respondents indicated that they are reassessing their current legal advisers. Purchasers of legal services now cite industry, commercial, and nonlegal expertise, as well as firms that are well-versed in global data and cyber protection issues, as critical considerations in the decision-making process.

Organizations are also expected to meet more stringent legal and compliance risk assessments set out by the U.S. Department of Justice, which is placing the onus on organizations to “self-police.” White-collar crime defense attorneys should consider how this impacts clients’ needs. Internal compliance resources remain stretched. Consider ways to seize the opportunity and fill the void.

2. Transform the Business Model

The next generation of successful white-collar crime defense lawyers will morph from managers of legal crises to business misconduct advisers. Many white-collar crime attorneys solely focus on incidents—if there is an allegation, they conduct an investigation and then create a solution for the client. White-collar defense attorneys should look to develop long-term relationships as trusted business advisers instead of seeking a series of one-time engagements.

Be prepared to invest in clients to build these long-term relationships. Consider, for example, teaming with risks and controls experts to help clients assess whether their ethics and compliance programs are effective in preventing and detecting misconduct—before a problem occurs.

Assisting clients in demonstrating the effectiveness of remediation efforts to the government and other third parties can include teaming with risks and controls experts to deploy parallel remediation workstreams; implement “self-monitoring” to obviate a government-imposed monitor; and, if a monitor is required, help the client select, prepare for, and interface with any government-appointed monitor(s).

3. Embrace Technology

Forensic technology has kept pace and, to a certain extent, drives increasing compliance expectations. “Know Your Data” is just as important as “Know Your Customer.”

White-collar defense attorneys are, well, attorneys and likely not up-to-date on rapidly changing technology. If “structured and unstructured data,” “assimilation of disparate data,” “common data platforms,” “SQL,” and “ACL” are unfamiliar terms, consider embedding a forensic data analytics expert on your team to help you advise your client in understanding the latest practices.

Data is essential to assessing the effectiveness of ethics and compliance programs. When it comes to investigations, expert analytics play a crucial role in proving or disproving alleged misconduct. Ensure you have collected and assimilated data from disparate sources, identified anomalies and outliers that suggest potential misconduct, and quantified damages from any misconduct. Keep up with predictive analytics as a tool—and growing government expectations to use the tool—to prevent fraud and misconduct.

4. Embed Industry and Multidisciplinary Expertise

If they are to remain preeminent, top-tier white-collar criminal defense firms must become experts in data analytics, finance, forensic accounting, audit, compliance risks and controls, and the industries in which their clients engage in business. Whether opting for in-house or outsourced resources, be sure your practice is armed with deep enough expertise to conduct a full forensic audit. With the right multidisciplinary teams, not only will firms be able to assist clients with legal enforcements, but they will also have the opportunity to strengthen and expand the term of the relationships to potentially include pretransaction controls diligence and post-transaction compliance program implementation.

5. Seize First-Mover Advantage

There is no time to waste. Brainstorm internally about how your firm can adapt to the changing white-collar defense landscape, and invite other practice groups to the discussion. Consider external knowledge-sharing at industry events or closed roundtables on changes to white-collar criminal defense, such as improved technology around data analytics or updates to regulatory and compliance practices.

Conclusion

The next decade will bring significant opportunities and risks for white-collar crime attorneys. As clients operate under increasing regulatory and compliance pressures, attorneys must expand their offerings to help clients succeed. The next generation of white-collar attorneys must, in practice, accept the evolution of their profession from serving as legal experts to becoming business misconduct advisers who, with the help of a multidisciplinary team of experts, can handle clients’ compliance issues from pre-crisis through post-incident remediation.

Jonny Frank

Jonny Frank is a partner in the New York office of StoneTurn Group, where he currently serves as the DOJ-appointed Independent Compliance & Business Ethics Monitor of a top-five global bank and forensic adviser to the NHTSA-appointed compliance monitor of a tier-one automotive supplier.