In the past, when corporations committed regulatory
violations the penalties were often not severe. It used to be the case that the
company would pay a fine and then business could continue as usual. Over the last
decade, however, criminal statutes and sanctions against businesses have begun
to resurface from within the federal regulations. This allows these violations
to be criminalized and corporations to be prosecuted in an environment that was
formerly largely thought of as regulatory. White collar criminal defense
attorney Barry N. Covert spoke to the Buffalo Law Journal about the way these
regulations are now being applied and how they could affect businesses going
forward. The full story is available on the Buffalo
Law Journal website.
Complex white-collar defense
According to the Buffalo Law Journal, white-collar defense
has become more complex because attorneys must now consider the criminal
implications of their clients’ regulatory violations. Mr. Covert told the Law
Journal that attorneys must look at any potential charges and prioritize
minimizing criminal liability for both the president or manager of the company
and the company as a whole. “When they were just going to enforce regulations
on the civil side and potentially penalize with a civil penalty, that’s one
matter that’s easier to negotiate,” he said. “But when they are indicating that
there are potential criminal charges, now you have to concern yourself with
whether your client can speak anymore with them, whether you need lawyers for
other management and employees of the company, and what you do with document
production,” Mr. Covert continued. He went on to say that “once there is a
threat of criminal charges on any regulatory case, it changes the entire
Mr. Covert told the Law Journal that technological
advancements have made white-collar criminal defense more complex. The constant
electronic communication necessary for business operations has complicated the
way discovery is handled in the digital era. “You have to have greater
resources than you did 10 or 15 years ago,” Mr. Covert explained. He went on to
say that preserving all communication is crucial to criminal litigation. Part
of the challenge now lies in determining how all of this information should be
downloaded, saved, and searched.
As criminal charges coming from regulatory violations have
become more prevalent, some industries have felt the effects more than others.
Mr. Covert explained to the Buffalo Law Journal that areas such as stock fraud
and local zone ordinances are more heavily affected by the changes. He went on
to say that the Environmental Protection Agency and the State Liquor Authority,
among other agencies, have begun to enforce their regulations more aggressively.
In response to this, Mr. Covert advises that companies institute affirmative
compliance programs. These programs show that policies are being enforced so
that, on the occasion a violation does occur, it is easy to show that the
intent was not criminal. He also told the Law Journal that institutions should
focus on properly training employees and forming a position, such as a
compliance director, that can deal with the regulations specific to that
About Barry N. Covert
Mr. Covert is a senior partner in Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area. He is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; driving while intoxicated; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense. Mr. Covert frequently provides legal analysis for WGRZ and other media outlets.
This article does not purport to give legal advice and is for informational purposes only.