A rundown of the updated White Collar Crime treatise

Today, we’re cracking open a really significant resource in the world of high-stakes litigation. It's the updated White Collar Crime, Third Edition, 2025 Edition 9 volume legal treatise, edited by WBD’s Michael Clark and Luke Cass, published by Thomson Reuters.

About the authors:

• Luke Cass
• Michael Clark

Transcript

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Host 1 

Welcome to Womble Perspectives. Today, we’re cracking open a really significant resource in the world of high-stakes litigation. It's the updated White Collar Crime, Third Edition, 2025 Edition 9 volume legal treatise, edited by WBD’s Michael Clark and Luke Cass, published by Thomson Reuters.

Host 2

And this isn't just academic. It's grounded in serious real-world defense strategy by two very experienced trial lawyers and veterans of DOJ. Michael Clark served as the Chief of the Criminal Division for the U.S. Attorney’s Office in Houston and has been lead counsel in over 100 jury trials, some lasting months. Clark has long taught trial skills to lawyers and law students.  Luke Cass was a federal prosecutor specializing in financial fraud and public corruption matters as an Assistant U.S. Attorney and in the DOJ’s Public Integrity Section. Last year, Luke secured a complete acquittal of a defendant of a five-count indictment in a conspiracy and false statements case involving allegations of public corruption in federal court in Baltimore. They carry on the legacy of the original author, Joel Androphy, a celebrated trial lawyer in his own right.[LC1]  Clark also is the editor of a legal treatise on Corporate Criminal Liability (3d Ed.) published by Thomson Reuters. Both Cass and Clark have served as Adjunct Professors of Law and have national reputations.

Host 1:

So that sets the stage for today’s episode. Now, we’ll dive into this dense legal text to pull out some key strategic ideas you absolutely need to grasp about federal white-collar enforcement. Think of it as your shortcut through the legalese.

Host 2
We're zeroing in on three really massive areas. First, how corporations themselves become criminally vulnerable. Second, the broad scope of the grand jury's power. And third, the battle over legal privileges, a shield that has lately been the subject of attack.

Host 1 

Many DOJ policies are now pushing for whistleblowers to come forward with information, even paying for tips and for companies to self-disclose and cooperate. Unfortunately, that sometimes means an individual employee can get thrown under the bus.

So, let's start with corporate liability. It seems almost too easy sometimes for the government to charge an entire company based on what just a few people did. How does that work? It goes back to respondeat superior, right?

Host 2

That's the one, and it is shockingly easy in some ways. The company is liable for criminal acts of its employees or agents if basically two things are met.

One, the actions happened within the scope of their job duties, and two, the actions were intended, even just partially, to benefit the corporation.

Host 1
So, let's say a mid-level manager cooks the books a bit to hit a quarterly target, maybe boost their own bonus, but also make the division look good. That action could potentially bring down criminal charges on the whole multi-billion dollar company?

Host 2
Precisely. If they were trying, even in a small way, to help the company, even if they failed or it was mainly self-serving, the company itself is legally on the hook. Even if an employee violated compliance policies, the company can still be on the hook. It's why it's such a powerful tool for prosecutors.

Host 1
Makes sense.

Host 2

But, you know, the real game-changer when we talk about individual risk is the Responsible Corporate Officer doctrine, the RCO doctrine?

Host 1
That’s the one where you can be guilty almost just by having the job title, isn't it?

Host 2

That's the really chilling part of it. RCO allows for holding an individual accountable even if they had no mens rea, no guilty mind, no direct knowledge of a specific crime. That’s why some refer to this doctrine as “The Crime of Doing Nothing” since a person is punished based on their position, not their actions. 

Host 1
How is that possible?

Host 2

Well, historically, these cases focused on strict liability offenses, things like under the Food, Drug, and Cosmetics Act or certain environmental crimes. The core idea was if you were in a responsible position within the company and you had the power to prevent or fix the violation, you could be held personally liable for that corporate crime.

Host 1 

That sounds like a huge due process issue. You're saying a senior exec could face criminal charges just because something bad happened on their watch, even if they didn't actively do anything wrong or intend it?

Host 2

That's the potential reach of the doctrine, yes. Now, we should be clear. The Supreme Court has generally limited its application, especially in recent decades, primarily to those strict liability misdemeanors. It hasn't been broadly applied to felonies requiring intent.

Host 1

Okay, that's an important caveat.

Host 2
But the threat of RCO liability, that's a massive pressure point in any investigation, and it ties directly into the DOJ's current strategy. It also can be used as a toehold for more serious charges, like conspiracy or false statements, which are felonies. 

Host 1
Right, which, since the Yates memo and later the Monaco memo and even current updates, has been laser-focused on going after individuals.

Host 2
Exactly. This is the policy shift that really codified the inherent conflict we talked about. The DOJ's stated belief is that the strongest deterrent isn't fining the company. It's prosecuting the actual people involved, especially those high up in the corporation.

Host 1
And this creates a dilemma for the company trying to cooperate, doesn't it?

Host 2
It absolutely does. It leads to the all-or-nothing standard for cooperation credit.

Host 1

Explain that.

Host 2

Basically, a company only gets credit, real, meaningful credit, for cooperating if they find and give the government full and timely information about the individuals involved in the misconduct. Even now where there is no longer a presumption, companies still need to cooperate to get the declination. 

And the policy explicitly says prosecutors shouldn't let individuals off the hook just because the company settles.

The message couldn't be clearer. If the corporation wants to save itself, potentially avoid indictment or get a better deal, it needs to serve up the facts, and often that means serving up the people responsible. It's the ultimate leverage.

Host 1
Which brings us nicely to the investigation stage itself.

So the DOJ has its liability theories. It's targeting individuals. Now it deploys its main weapon, the grand jury. Just how powerful is this body?

Host 2
Its power is immense. It operates with incredibly wide latitude and in secret. It's largely, as the courts say, unrestrained by the technical, procedural, and evidentiary rules that govern actual criminal trials.

It functions almost like an investigative arm of the prosecutor, an appendage of the court. For defense lawyers trying to influence or challenge things at the grand jury stage is, well, almost impossible. There is no right to counsel being present in the grand jury.

Host 1

Okay, let's talk about the individual who gets that subpoena for documents. The Fifth Amendment protects against self-incrimination, testifying against yourself.How can the government force someone to hand over documents that could bury them?

Well, that question brings us to the act of production doctrine. It comes from cases like Fisher and Doe. The key distinction is this: the contents of business records you created voluntarily, generally not privileged under the Fifth. You weren't forced to write them down.

Host 2:

Right. The government didn't compel you to create the incriminating memo. But the act of producing those documents in response to a subpoena, that can be testimonial.

Host 1:
How so? What are you testifying to?

Host 2:
By handing them over, you're implicitly saying, "Yes, they are the documents described in the subpoena. So they're authentic in that sense. And yes, I have them or I control them." That act itself could be incriminating. So that’s the danger. That implicit testimony could be a link in the chain of evidence.

But, and this is a huge but, there's a massive exception that basically rips the shield away from many people in the corporate context. It's the Braswell decision, the corporate custodian exception.

Host 1:
What does that do?

Host 2: 

It says that if you are producing documents as a representative, a custodian of a corporation, even a small one, you have no Fifth Amendment privilege against the act of producing those corporate documents, even if the act incriminates you personally.

So you're forced to hand over the smoking gun from the company files, even if it points directly at you, because you're acting for the company, not yourself. You're acting as an agent of the entity and the entity has no Fifth Amendment privilege.

Host 1:

That's a critical vulnerability. What if you leave the company? Are you still the custodian? Can they still force you then?

Host 2: 

Now, that's where it gets interesting and frankly complicated. There's actually a split among the federal circuit courts on whether a former employee still acts as a custodian and can be compelled under Braswell.

Host 1: 

So some courts say yes, some say no.

Host 2: 

Exactly, and the stakes are huge. Maybe a company fires someone right before a subpoena hits, hoping that person loses custodian status, making it harder for the government to get those specific records from that specific person. It shows the kind of strategic maneuvering involved.

Host 1: 

Okay, one last point on grand juries. We sometimes hear about defense lawyers trying to get indictments thrown out because of prosecutorial misconduct in the grand jury. Like relying too much on hearsay evidence maybe.

Host 2: 

Yeah, that's a common argument, but it's a hard one to win. While going overboard with hearsay might raise some Fifth Amendment due process concerns in extreme cases, the Supreme Court in US v. Williams made it clear, prosecutors generally have no obligation to present exculpatory evidence that might help the defendant to the grand jury.

Host 1: 

So they can pretty much just present their side.

Host 2: 

Largely, yes. To get an indictment dismissed for misconduct, you typically need to show truly flagrant or egregious misconduct by the prosecutor. That standard is, well, almost impossible to meet in practice.

Host 1: 

Okay, moving on. Perhaps the most critical battleground, especially during internal investigations, is protecting legal privilege. This investigation is meant to be the company's shield, but it often turns into a weapon against the individual employee, doesn't it? Let's start with a famous Upjohn warning.

Host 2:
Absolutely critical. This is the moment, usually right at the start of an interview between company lawyers and an employee during an internal probe. The lawyer must clearly tell the employee something like, "Look, I represent the company. I don't represent you personally."

Host 1:
And what makes that warning so crucial?

Host 2: 

Because it establishes unequivocally that the attorney-client privilege covering that conversation belongs to the corporation, not the individual employee.

Host 1: 

That must be a really jarring moment for an employee, realizing the company's lawyer isn't their lawyer and anything they say could potentially be handed over to the government later.

Host 2: 

It's absolutely horrifying for many. And because the company holds the privilege, the company can later decide to waive it. If they decide to cooperate fully, they might disclose the findings of that internal investigation, including summaries or notes from that employee interview to the DOJ or the SEC.

Host 1:
And that disclosure usually blows up the privilege, right?

Host 2: 

It generally waives both the attorney-client privilege and potentially the work product protection over those disclosed materials. The government then gets access to the internal playbook.

Host 1: 

And then there's the crime-fraud exception. Even if the company wanted to protect the communication, this can destroy the privilege entirely.

Host 2:
Correct. If a communication between a lawyer and client was made in furtherance of an ongoing or future crime or fraud, the privilege simply doesn't apply. It vanishes.

Host 1:
What does in furtherance mean practically?

Host 2:
It's an important nuance. The communication itself has to be part of advancing the illegal scheme. It's not enough that the communication merely relates to a past crime. The lawyer is being used knowingly or unknowingly to help the crime succeed.

Host 1:
Got it. Now what about the work product doctrine? That protects materials prepared by the lawyer anticipating litigation, like interview memos or legal analysis. Is that stronger than the attorney-client privilege?

Host 2: 

It's often considered a bit tougher, yes. Unlike attorney-client privilege, which can be waived by disclosure to almost any third party, work product protection generally isn't waived unless you disclose it to someone in a way that's inconsistent with keeping it secret from your adversary, the government in this case.

So sharing an internal memo with, say, the company's outside auditors might not waive work product, but sharing it with the DOJ certainly would.

Host 1:
 Okay, this brings us to joint defense agreements, or JDAs. These sound like a good idea. They let different parties, like the company and some employees who are all under investigation and have common interests, share privileged information among their lawyers without waiving the privilege as to the government.

Host 2:
Yes, they're designed to allow a coordinated defense, sharing legal strategies, witness interview information, that sort of thing, without giving the government a free peek. They can be critical.

Host 1: 

But I sense a but coming.

Host 2:
There's a huge potential trap here, especially for the individual employee. Even if you're part of a JDA, there could be a critical risk.

The corporation might still be able to disclose information it learned from you via your lawyer under the JDA if the corporation specifically stated before that information was shared, perhaps even in the JDA itself, that it reserved the right to cooperate fully with the government later.

Host 1:
So, the company uses the JDA to get the employee's side of the story, potentially privileged details, and then later decides to cooperate and can just hand that over.

Host 2:

It can essentially use the information gleaned from the employee, maybe indirectly, to build its cooperation case with the DOJ. The corporation positions itself to use the employee's information as a kind of bargaining chip to save itself.

It may seem cynical, but it's the strategic reality. The company is trying to fulfill that DOJ mandate we discussed, provide full information about individual misconduct, to get cooperation credit. The information shared under the JDA might help them do just that.

Host 1: 

And this ties back to the DOJ's own internal guidance, like the McNulty memo principle still in the US attorney's annual, right?

They say prosecutors shouldn't demand waivers of core attorney-client privilege or work product, what they call category two information, like legal advice.

Host 2: 

That's the policy, yes. They're not supposed to ask for the lawyer's opinion memo, but they absolutely can and do pressure companies for category I information, the underlying facts. And cooperation credit is explicitly judged on disclosing facts about individual wrongdoing. So, while they might not ask for the legal memo analyzing an interview, the practical pressure to disclose the factual content of that interview is immense if the company wants leniency.

Host 1:
It all comes back to the facts needed to charge the individual.

Host 2:
Always.

Host 1:
So when you boil it all down, this deep dive really exposes this constant high-stakes tension. The company has this incredibly strong incentive to cooperate with the government to get leniency, maybe avoid indictment altogether.

Host 2: 

Right.

Host 1: 

But that incentive almost always clashes directly with the individual employee's need to protect their own fundamental rights, the Fifth Amendment right against self-incrimination, their access to legal privilege.

Host 2: 

Absolutely. The strategic calls made right at the start of an investigation, how exactly is that Upjohn warning phrased? What are the precise terms of the JDA? Even the seemingly simple act of producing documents can fundamentally shape the outcome of massive white-collar cases, often long before anyone even thinks about a courtroom or a jury.

Host 1: 

It's fascinating. Now, before we close out, let's look beyond US borders for a second. We tend to think of constitutional rights, like the Fifth Amendment, as, well, pretty solid shields here. But what happens when investigations go global and testimony is compelled by a foreign government?

Host 2: 

Yeah, so this introduces some extraordinary challenges. The treatise mentions a really compelling case related to the Libor scandal, United States v. Allen. In that case, defendants had been legally compelled to give self-incriminating testimony to investigators in the UK.

Under UK law, they faced potential imprisonment if they refused to answer. It's a power our Fifth Amendment generally prevents here. But that compelled testimony was then provided to US investigators who were building their own case against the same individuals.

Host 1:
So the US prosecutors got testimony that they couldn't have obtained directly. What did the US court do?

Host 2: 

Well, ultimately, the US appellate court dismissed the indictments. It found that the foreign compelled testimony had irremediably tainted the American prosecution's evidence and witnesses. The court essentially said the Fifth Amendment was violated by the use of that compelled testimony even though it was compelled abroad legally.

It's a powerful reminder that in today's interconnected world of global enforcement, constitutional rights developed here can be seriously challenged or compromised by actions taken legally in other countries. It forces our courts into these complex balancing acts, trying to reconcile international cooperation with core constitutional protections like the Fifth Amendment.

Host 1:

It really shows that even in these complex, established areas of law, the ground is constantly shifting beneath our feet.

Host 2: 

It really does. Well, that’s it for today’s episode. If you found this information helpful, don’t forget to subscribe and share. And if you’re looking for more details, be sure to check out the links in the show notes.

 [LC1]Not sure why we are touting Joel rather than our records. 

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