US Attorney Self-Report Plan for Companies Ups Uniformity, Amid Doubt

Bracewell’s Seth DuCharme spoke with Law360 about the nationwide rollout of a new voluntary corporate criminal self-disclosure policy for United States attorney’s offices.

DuCharme said that in implementing the new policy, the Department of Justice is saying on the one hand that a corporation’s experience in encountering the government should have greater transparency and predictability, but at the same time, different offices are going to have their own considerations to take into account.

“They always need to have some room for discretion and recognition of the needs of a particular community, of the institutional history of a particular office, the expectations of the bench, the expectations of the defense bar in that community,” said DuCharme. “It really can’t be cookie-cutter.”

In order to reap the rewards, corporations need to make a timely voluntary self-disclosure before the beginning of an investigation by the feds or before there’s an imminent threat of the alleged misconduct being revealed. Absent aggravating factors, a US attorney’s office will not seek guilty pleas from companies that meet this standard, fully cooperate and implement appropriate remediation. Prosecutors will also recommend a steep discount on fines and won’t require a monitorship if the company can show it has implemented and tested an effective compliance program.

DuCharme said that it’s one thing if a company is sure a crime has been committed and self-reports in order to get the benefits of the new policy, but it’s a different story if defense attorneys are dealing with ambiguous facts and circumstances.

“I’m incentivized to [self-report] early, to get some credit, but on the other hand, what if there’s ultimately no ‘there’ there?” added DuCharme. “Now I’ve drawn all this scrutiny on my corporation, my employees, agents and counterparties, perhaps, because I’ve been warned if I don’t do this soon enough, I’m going to get in big trouble.”

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