On February 1, 2012 Davis Polk announced (here) that Greg Andres (the former DOJ Deputy Assistant Attorney General, Criminal Division) was leaving government service to join the law firm. The firm’s release noted that Andres, while at the DOJ, “was involved in policy and enforcement issues” relating to the Foreign Corrupt Practices Act. Likewise, on his Davis Polk bio page (here), Andres notes that while at the DOJ he “managed” many of the DOJ’s white collar prosecutions, including the DOJ’s FCPA program, and that he “represented” the DOJ on FCPA issues before Congress.
Indeed, at both the November 2010 Senate FCPA hearing and the June 2011 House FCPA Hearing, Andres was the voice and face of the Department of Justice.
This post highlights how Andres’s new position has resulted in new positions as to several FCPA issues and also highlights the significant public policy issue of former enforcement agency attorneys marketing, in private practice, the reality they helped to create while at the government.
During his Senate testimony (here), Andres encouraged companies to voluntarily disclose conduct that could implicate the FCPA.
Now that he is in private practice, Andres appears to have a different position on voluntary disclosure.
In an interview published by Corporate Crime Reporter on November 19th, Andres stated as follows. “Not every issue that a company uncovers should necessarily be disclosed. Some of it depends on size and scale – hundreds, or thousands or tens of thousands of dollars – it may not rise to the level where you would need to bring it to the Department’s attention.”
During his House testimony (here), Andres stated that an FCPA compliance defense “is a novel and somewhat risky approach, the time is not right to adopt such a compliance defense.”
Now that he is in private practice, Andres appears to have softened his position. The same Corporate Crime Reporter interview included the following Q&A.
Q: You were with the government when the government was saying no compliance defense is necessary. Is that your view now?
A: I don’t know that I would take a specific view on that. I’m certainly aware of what the government’s arguments were in favor [of rejecting such a defense]”
The Corporate Crime Reporter interview also highlights the significant public policy issue of former enforcement agency attorneys marketing, in private practice, the reality they helped to create while at the government.
For instance, in both his written and oral Senate testimony, Andres stated as follows. “The investigation and prosecution of transnational bribery is an important priority for the Department of Justice and we have been hard at work.”
Now in private practice, Andres’s practice appears to be benefitting from the priorities and policy he recently articulated while at the DOJ. The Corporate Crime Reporter interview included the following Q&A.
“Q: What part of your practice is FCPA?
A: At the moment a large part. That remains a large focus of the government’s white collar program. Our practice reflects in part the priorities of the Department of Justice. And clearly the FCPA is one.”
For another instance of a former high-ranking DOJ FCPA official marketing the reality he helped to create, see this prior post.
I have frequently written about the revolving door of FCPA enforcement attorneys into private practice. Some will say, that is just how Washington works. That is hardly a persuasive response.
Given the niched nature of both the DOJ and SEC FCPA units, I have long called for (see here and here) a five year prohibition on FCPA enforcement attorneys and those setting government FCPA policy from providing FCPA defense or compliance services in the private sector.
Related to this issue, a recent study focused on the SEC (here) and examined whether SEC lawyers’ future career prospects influence their enforcement efforts while at the SEC. The study found that lawyers that leave the SEC to join law firms that specialize in defending clients against the SEC are associated with stronger enforcement efforts.