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And The Best FCPA Lawyer Is …

The short answer is how the heck would I know and what criteria would even be used?

Is one a “best” FCPA lawyer if one assists a business organization with a compliance program that effectively manages and minimizes risk such that the company is never under FCPA scrutiny and resolves an enforcement action?

Is one a “best” FCPA lawyer if one conducts a multi-million dollar internal investigation or is this “boiling the ocean [1]” and deserving of a “worst” FCPA lawyer?

Is one a “best” FCPA lawyer if, after an internal investigation, one takes the government’s bait and voluntarily discloses or is this deserving of a “worst” FCPA lawyer recognizing that there is no legal obligation to disclose and disclosure results in a host of negative financial effects for a business organization? (See here [2] and here [3]).

Is one a “best” FCPA lawyer if one advises a client, largely for reasons of risk aversion, to accept a government NPA, DPA or administrative action or is this deserving of a “worst” FCPA lawyer recognizing that rolling over and playing dead is not the only option? (See here [4] and here [5]).

As to the above issues, and many more that might be relevant to FCPA lawyering, there is little transparency (and thus objective assessment by others) of the relevant criteria. Indeed, is there any legal practice as opaque as FCPA lawyering?

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It has been noted in other contexts such as this Forbes article [7]:

“Law is staging its own version of ‘every kid gets a trophy.’ Its award season is longer than baseball’s, and the list of award categories rivals the Oscars. Every week, all over the globe, the legal industry throws gala dinners to celebrate its ‘innovators,’ ‘visionaries,’ and ‘pioneers.’ These gatherings afford attendees a chance to dress up, schmooze with peers, feel important, and convince themselves that their industry is performing splendidly.”

This article [8] in the Wall Street Journal states:

“Stroking lawyers’ egos has become big business. A proliferation of attorney awards and rankings — more than 1,200 by one count — is inundating law-firm marketing departments, and an industry of consultants has popped up to guide firms through the submissions process.”

As noted in the article:

“The awards race has intensified, in part as legal-trade publications look to monetize honors to prop up revenue. Many of the rankings are bestowed by trusted brands that vet lawyers’ reputations by calling clients and reviewing court victories or major deals. Even these can ask winners to pay $500 for plaques, $5,000 for advertisements or $10,000 for tables at awards banquets. Newer contests are often pay-to-play, requiring several-hundred dollar submission fees or even withholding awards if certain products aren’t purchased. ‘A whole cottage industry has developed on playing off of lawyers’ egos and insecurities,’ said the head of one large New York-based law firm. ‘It’s accelerating dramatically because people see that there’s money to be had.’

The proliferation of law firm / lawyer rankings has infected the FCPA space and, consistent with the above article, most of the awards seem to be handed out by for-profit legal trade publications.

For instance Global Investigations Review (an online publication which describes itself as “the hub for global coverage of corporate investigations and their aftermath) recently introduced its “Top FCPA Practitioners [9].” According to GIR it identified “the top lawyers and forensic advisers in the Foreign Corrupt Practices Act space based on extensive market research, including interviews with 130 industry insiders.” Didn’t make the “top FCPA practitioners” list? No worries, there is a trophy for everyone with the “FCPA Practitioners to Watch” list. I’m not certain what I should be watching for or how I can do that, but I will be on the lookout nevertheless. Query how many of the lawyers and their law firms identified by GIR are paid subscribers to GIR?

Chambers and Partners (a company who describes itself as an independent research company operating across 200 jurisdictions delivering detailed rankings and insight into the world’s leading lawyers) ranks FCPA law firms [10] in “bands.” There is Band 1, Band 2, Band 3, Band 4, and Band 5. It’s exacting criteria and methodology begins with law firms and lawyer providing a submission to “present an opportunity to demonstrate why your firm should be ranked in Chambers.”

Many of these FCPA or related awards are a racket. What typically happens is that the law firm or lawyers winning the award issue a press release mentioning the publication issuing the award (free advertising for the publication) and then congratulates itself for winning the award as if it was some big accomplishment. Not to pick on these law firms (several others could also be highlighted) but some examples of recent press releases are here [11], here [12], and here [13].

Returning to the opening question … who is the best FCPA lawyer?

The short answer is how the heck would I know and what criteria would even be used?

Strategies For Minimizing Risk Under The FCPA

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