For nearly a decade, these pages have called for restrictions when DOJ / SEC FCPA enforcement attorneys with supervisory and discretionary authority leave the government for private practice careers devoted to the FCPA. (See here, here, here and here among other posts).
I was thus happy to see that the Coalition for Integrity (“C4I” – a non-profited devoted to combating corruption and promoting integrity in the public and private sectors) recently called for post-employment restrictions on DOJ and SEC FCPA enforcement attorneys who leave for private practices in this policy paper submitted to the OECD in connection with its Phase 4 Evaluation of the U.S. Implementation of the OECD Anti-Bribery Convention.
It is a bit ironic though as C4I has several individuals on its Board of Directors who left the DOJ / SEC for lucrative positions in FCPA Inc. including an individual who still describes himself as “the architect and key enforcement official of DOJ’s modern Foreign Corrupt Practices Act (FCPA) enforcement program.”
In its policy paper, C4I states in pertinent part:
“Over the past several years – including under both the Obama and Trump Administrations – top attorneys in DOJ’s Fraud Section and FCPA Unit and SEC’s Enforcement Division and FCPA Unit have come from private sector backgrounds. In addition, several high-profile figures as well as staff attorneys within both of these enforcement agencies have departed for private sector firms.
C4I recognizes that a perception of a revolving door may give rise to concerns, for example, that prosecutors looking to make a name for themselves by bringing high-profile enforcement actions to facilitate an entry (or reentry) into private practice or a corporate position, which may be more lucrative than their government position, may be influenced in their prosecutorial decisions by that goal. Frequent personnel changes may also disrupt consistent enforcement policies and lead to the non-pursuit of cases that should be pursued.
C4I believes that it is imperative that guidance from the DoJ’s Professional Responsibility Advisory Office, which provides nationwide guidance about ethical responsibilities, is strictly adhered to. In addition, the Office of the Inspector General in the DoJ, which is a statutorily-created independent entity that investigates alleged violations of criminal and civil laws by DoJ employees and also audits and inspects DoJ programs, should be adequately supported.
C4I also supports exploring certain changes within the DoJ to ensure that the FCPA Unit is perceived to act with complete integrity. First, the DoJ’s FCPA Unit should consider imposing a one-year ban on former employees appearing before the agency as private sector counsel, akin to a similar rule in place for former employees of the SEC’s FCPA Unit. Such a restriction is common among financial regulatory bodies, and would go a long way toward diminishing the appearance of a revolving door between the DoJ and private sector interests. Second, salaries for attorneys in the DoJ’s FCPA Unit should be reconsidered and potentially raised to close the gap with private sector remuneration and decrease the potency of financial incentives to leave the agency.”
Elsewhere in its report, C4I also calls for greater transparency in FCPA enforcement.
“[W]e urge the DoJ and SEC to publish the following summary statistics on an annual basis:
• Number of complaints received regarding potential FCPA-related violations;
• Number of opened investigations;
• Number of cases closed after a preliminary investigation;
• Number of cases closed without enforcement action (whether in the form of a PA, DPA, NPA, or declination with disgorgement) after a full investigation;
• Pipeline at the beginning and at the end of the year;
• Number of cases for which informal or formal assistance of a foreign authority was sought, including the name of the foreign authority to which the case was referred;
• Number of cases in which prosecution was declined in favor of the interests of a foreign authority; and
• Number of investigations and declinations for recidivists.
Although the C4I policy paper is needlessly political in certain instances (including a rant about the recent sentencing of Roger Stone – a case that nothing to do with FCPA enforcement), it is nevertheless a good read.
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