Deputizing Company Counsel as Agents of the Federal Government: How Our Adversary System of Justice Is Being Destroyed
By N. Richard Janis

Sophocles wrote, “There is a point beyond which even justice becomes unjust.” Our current system of justice, at least insofar as it applies to investigations of corporations and other organizations and their employees, has already reached such a point.

Although a few commentators have addressed the issue,1 this alarming development has drawn scant attention in discussions of legal and public policy; nor has it been properly addressed by our bar associations. Among experienced white-collar criminal practitioners, however, it is a source of increasing dismay and concern.

This development has been fueled in large part by the public reaction and political response to the most recent wave of corporate scandals. Our elected representatives have found that it is good politics to pander to the public hysteria, and politicians of both parties have been tripping over themselves to show that they are tough on corporate crime by increasing penalties, imposing mandatory minimums, and taking to task executive branch officials who are not sufficiently aggressive in the pursuit of corporate wrongdoers. Largely in response to these public and political pressures, government agencies such as the Securities and Exchange Commission (SEC) and the Department of Health and Human Services have been quick to get on the bandwagon and aggressively exploit the threat of administrative death penalties in the form of debarment or exclusion to up the ante for companies under investigation. The Sentencing Commission has played its part too, imposing higher and higher penalties on companies and individuals for white-collar offenses and placing a premium on “cooperation” as the only way to avoid otherwise draconian penalties.2

Unfortunately, the Department of Justice, which has traditionally served as a restraining force when the pendulum has swung too far, has itself exercised no restraint. Don’t get me wrong. I find nearly all prosecutors to be generally fair-minded, conscientious, and frankly easier to deal with than most civil litigators, who tend to believe that the more obnoxious you are, the better the job you are doing. Moreover, I certainly recognize that many companies and individuals who find themselves in the cross hairs of prosecutors deserve the attention they are getting, and prosecutions in many such instances are fully warranted. Nearly all federal prosecutors believe strongly in what they are doing and genuinely believe that they are serving the public good. But in a way this can itself be a problem, since such beliefs make it easier to become overzealous and to think that the ends justify the means, particularly in the absence of restraining influences.

My experience as a former federal prosecutor and a longtime defense attorney has taught me that if you give anyone, even a good person, unchecked power, he or she is going to abuse it. That is what has happened today. The pendulum has swung too far. The combination of draconian sentences, lack of meaningful judicial control over the imposition of sanctions, administrative death penalties available to agencies in the form of debarment and exclusion, and the almost impossible burdens and palpable fears of company officers and directors created by Sarbanes-Oxley and the current enforcement environment3 has produced an inordinate imbalance of power. Not surprisingly, prosecutors have exploited their virtually unchecked power to extract and coerce ever greater concessions, jeopardizing the very nature of our adversary system. It is destruction by accretion—a staged but seemingly inexorable concentration of power that has skewed the system.

The net result has been the emasculation of the defense bar and the enforcement of the criminal law in a way that is often wildly out of proportion to the perceived wrongdoing. It can be, and often is, a state-sponsored shakedown scheme in which corporations are extorted to pay penalties grossly out of proportion to any actual misconduct. Criminal sanctions, administrative sanctions, and director liability make the payment of tribute to the federal government essentially a cost of doing business. In the process, individual employees, many of whom have faithfully and loyally served their companies for years and may well not have engaged in wrongful activity, are jettisoned like detritus and left to their own devices, all in the name of fiduciary responsibility and corporate integrity.

Before you accuse me of overreacting or engaging in rhetorical flourishes, let’s examine in more detail how the current system operates and the implications for our adversary system of justice.

Requiring Cooperation
Generally, prosecutors couch their assault on the adversary system by insisting that they are merely taking into account an organization’s “cooperation” with investigators when making decisions about whether and what to prosecute. In January 2003 then–deputy attorney general Larry Thompson promulgated “a revised set of principles to guide Department [of Justice] prosecutors as they make the decision whether to seek charges against a business organization.”4 As Thompson made clear, “The main focus of the revisions is increased emphasis on and scrutiny of the authenticity of the corporation’s cooperation. Too often business organizations, while purporting to cooperate with the Department investigation, in fact take steps to impede the quick and effective exposure of the complete scope of wrongdoing under investigation.”5

Thus, companies that want to cooperate fully and not “impede” investigations must adhere to the “General Principle” articulated by Thompson: “In gauging the extent of the corporation’s cooperation, the prosecutor may consider the corporation’s willingness to identify the culprits within the corporation, including senior executives; to make witnesses available; to disclose the complete results of its internal investigation; and to waive attorney-client and work product protection.”6

Thompson further asserts, “Another factor to be weighed by the prosecutor is whether the corporation appears to be protecting its culpable employees and agents. Thus, while cases will differ depending on the circumstances, a corporation’s promise of support to culpable employees and agents, either through the advancing of attorneys fees, through retaining the employees without sanction for their misconduct, or through providing information to the employees about the Government’s investigation pursuant to a joint defense agreement, may be considered by the prosecutor in weighing the extent and value of a corporation’s cooperation.”7

Thompson’s successor, James Comey, has, if anything, espoused an even stronger approach. In an interview conducted in 2003 Comey said, “In my view, for a corporation to get credit for cooperation, it must help the Government catch the crooks. Sometimes, a corporation can provide cooperation without waiving any privileges. Sometimes in order to fully cooperate and disclose all the facts, a corporation will have to make some waiver because it gathered the facts through privileged interviews and the protected work product of counsel.”8

As for employees of organizations under investigation, Comey asserts his view that employees’ fears that results of interviews conducted by company counsel will be shared with the government will have “little impact” on their willingness to talk to the company’s attorneys. “In any event,” he adds, “that possibility does not change the fact that, in order to fully cooperate, a corporation has to help the Government solve the crime.”9 When asked if this might undermine a corporation’s relationship of trust with its employees, Comey said that “good corporate citizenship” requires nothing less than full cooperation by employees, concluding (rather simplistically, I believe), “Employees who have only made mistakes will understand; employees who have information about others will also understand, especially when the corporation protects them from retaliation; employees who have committed crimes, have no trust to undermine.”10

Comey also said, “It is hard for me to understand why a corporation would ever enter into a joint defense agreement because doing so may prevent it from making disclosures it either must make if it is a regulated industry, or may wish to make to a prosecutor.”11 Finally, he suggests that a corporation that does not have a policy of firing employees who won’t consent to be interviewed by its counsel is not “acting in its shareholders’ interests,” notwithstanding the fact that this may just be “an end run around the Fifth Amendment,” since “of course” the government should request the results of such “interviews conducted under pain of dismissal.” After all, the government “needs to find out what happened,” and “interviews with employees are usually the source of the corporation’s knowledge.”12

As if this were not enough, the November 1, 2004, amendments to the Federal Sentencing Guidelines effectively require an organization to waive the attorney–client privilege and attorney work product protection in order to receive leniency in sentencing by amending the commentary to section 8C2.5 to add: “Waiver of attorney-client privilege and of work product protections is not a prerequisite to a reduction in culpability score under subdivisions (1) and (2) of subsection (g) unless such waiver is necessary in order to provide timely and thorough disclosure of all pertinent information known to the organization.” (Emphasis added.)

The Meaning of “Full Cooperation”
Predictably, the government has continued to redefine what it means by “full cooperation,” with each successful demand acting as the new baseline for what is expected in future cases. As a result, its demands have become so extreme that the very existence of the attorney–client privilege and attorney work product protection have been almost irretrievably undermined. As Alice Martin, the United States attorney in Birmingham, Alabama, who is prosecuting the HealthSouth case, has observed, “Once one prosecutor has gotten cooperation of a certain level, that level becomes what we all now consider cooperation.”13

Some recent examples are illustrative of this phenomenon. As reported in the New York Law Journal on November 4, 2004, Royal Ahold avoided SEC sanctions by conducting a comprehensive internal investigation by outside consultants and law firms, disclosing its problems to the SEC and the U.S. attorney’s office for the Southern District of New York, waiving the attorney–client privilege and work product protection, making employees in the United States and abroad available for government interviews, and turning over to the government the results of its internal investigations.14 Thomas Newkirk, an associate enforcement director of the SEC, who was involved in the case, noted that Ahold provided “exemplary cooperation,” and whatever the SEC asked of the company “they gave and did it as fast as humanly possible.”15

As reported by the Wall Street Journal, under pressure from the government (and no doubt mindful of the government’s destruction of Arthur Andersen), KPMG has concluded that “full cooperation” has required it to waive the attorney–client privilege and work product protection; refuse to pay legal costs of its partners and employees unless they agree to talk to prosecutors; decline to enter into any joint defense agreements; agree to tell prosecutors which documents its partners and employees are requesting to use in their own defense and to provide prosecutors with copies of those documents at the same time it provides them to defense counsel; and refuse to allow defense attorneys access to the full set of documents it has provided to the government.16

By contrast, the SEC settlement with Lucent in May 2004 included a $25 million penalty for a supposed lack of cooperation.17 That lack of cooperation included a statement by Lucent’s outside counsel during the investigation denying that Lucent had acted fraudulently, and a reprimand from the SEC for indemnifying employees under investigation.18

Faced with these pressures, nearly all companies today are succumbing to the government’s escalating demands. Moreover, in dealing with the logistics of “cooperation,” companies must rely on their counsel, who have in essence become deputized by the federal government.19 This has in fact promoted disrespect for the law and for lawyers, who often find themselves with impossibly difficult and competing responsibilities and ethical obligations. Certainly they must make it clear to employees that they represent the company and not the individual employees to whom they are speaking. But in their role as a deputy for the Department of Justice, and in order to serve their client in the name of cooperation, they need to extract as much information as possible to curry favor with the government so that the company can be seen as cooperative.

Dealing With Employees
I do not in any way mean to cast aspersion on the honesty or integrity of the attorneys who are placed in this position. However, in order to serve their clients’ interests, corporate attorneys are under a great deal of pressure to walk a very fine line when dealing with employees. Thus, one way of getting employees to open up is to advise them of their rights, but to be “economical” with advice that might spook them. Company counsel are much more likely to emphasize they are “just trying to figure out what happened,” as opposed to telling employees “you may want to think about getting your own lawyer.”

Moreover, it is a regular practice for company counsel to ensure that they have interviewed as many witnesses as possible (and all important witnesses) before the employees get (or the company recommends that they get) their own attorneys. Often the company and its counsel will demand that an employee submit to an interview as a condition of employment (“talk or walk”), even though the company intends to turn over the results of the interview to the government. Essentially, they are demanding a waiver of the employee’s Fifth Amendment rights as a condition of continued employment. In an interesting contrast, the Supreme Court has found that the government itself cannot make such a demand on its own employees.20 Finally, the company and its counsel often demand continued cooperation and even submission by the employee to government interviews as a condition of continued employment and/or indemnification of legal fees.

Again, I am not casting aspersion on the integrity or professionalism of any attorneys who represent companies in these circumstances. To a large extent, company counsel are simply playing the hand that is dealt to them. Nonetheless, they are being placed in a tenuous position by the demands of their clients, on the one hand, and the demands of the rules of professional conduct, on the other. For instance, Rule 1.13(b) of the D.C. Rules of Professional Conduct provides: “In dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests may be adverse to those of the constituents with whom the lawyer is dealing.”

The D.C. Bar Legal Ethics Committee has opined that disclosure of a potential conflict of interest must be made whenever there “may be” adversity between the interests of the corporation and those of employees. Adversity may be present when “the corporation has not yet irretrievably committed itself to a position in the matter, but where one such position might be adverse to the employee. Such a possible adversity would almost always arise, then, when the corporation is able to take a position adverse to the employee.”21

Comment 8 to Rule 1.13 provides:

There are times when the organization’s interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization, of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.

Moreover, as noted in comment 1 to Rule 4.3, unrepresented persons inexperienced in legal matters “might assume that a lawyer will provide disinterested advice concerning the law even when the lawyer represents a client. In dealing personally with any unrepresented third party on behalf of a lawyer’s client, a lawyer must take great care not to exploit these assumptions.” Comment 2 also advises that “if it becomes apparent that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer must take whatever reasonable, affirmative steps are necessary to correct the misunderstanding.”

Finally, Rule 4.4 states that “[i]n representing a client, a lawyer shall not use means . . . or use methods of obtaining evidence that violate the legal rights of such a person.” The commentary to the rule provides in pertinent part that “[r]esponsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons.”

Slippery Slope
Just how slippery this slope can be is evident when the conduct of company counsel is viewed from the perspective of the company’s employees. Any attorney experienced in these matters knows that most employees feel they have served the company loyally and, perhaps increasingly naively, expect the company to reciprocate that loyalty. Often the facts regarding the conduct in question are less an issue than whether the conduct is criminal; indeed the conduct under investigation may even have been standard industry practice prior to the initiation of the investigation, or it may present complex accounting, technical, or legal questions, and the employee may often have been acting at the behest of his or her superiors.

Furthermore, in almost every case, the employees are depending upon the company they have served to indemnify them and pay for their legal fees—something that they understandably have come to expect as a benefit of their employment. This is a particularly difficult issue, because very few employees have the resources to afford competent counsel to represent them in an ongoing federal criminal investigation.

That the Department of Justice itself has lost touch with reality concerning these matters is clearly evidenced by statements attributed to former deputy attorney general Larry Thompson. Thompson was asked by the Wall Street Journal whether, “given that legal costs can run hundreds of thousands of dollars, isn’t the government being unfair to company employees if it pressures their employers not to pick up the tab.”22 According to the Journal, “Thompson’s response is that if employees really don’t believe they acted with criminal intent, ‘they don’t need fancy legal representation’ to defend themselves. There are lots of reasonably priced lawyers, he says.”23

To employees of a company, then, the company’s lawyers appear to be acting duplicitously. They are not trying to protect the employee, but only the company; they are extracting waivers of constitutional rights as a condition of employment and/or as a condition of payment of legal fees; and they are prejudicing the employees’ ability to defend themselves and to protect their families. Under these circumstances, the sense of abandonment felt by employees of organizations is palpable and, for attorneys who have witnessed it firsthand, deeply disturbing.

Given the low esteem in which the legal profession is already held, is it any wonder that the lesson learned is “don’t trust the lawyers,” and that lawyers representing companies are held in contempt by the company’s employees? Moreover, it is worth noting that this phenomenon makes it harder for the company to police itself and promotes disrespect for the legal profession.

Department of Justice representatives often argue against indemnifying employees by asserting that paying for counsel for employees is a “breach of fiduciary duty to the shareholders” and a “misuse of shareholders’ assets.” To begin with, the department’s sanctimonious expression of concern about preserving corporate assets for the shareholders is hard to swallow, given the severe financial settlements consistently coerced by the department and federal agencies out of companies by exploiting the double-barreled threats of prosecution and the imposition of administrative sanctions such as debarment or exclusion. These settlements, which are regularly for hundreds of millions of dollars of “shareholders’ assets,” are often wildly out of proportion to the conduct alleged, and are often seen by corporate boards of directors as an exorbitant cost of doing business, if not outright extortion. Thus, compared to these sums, the shareholders’ assets set aside for paying employees’ legal fees are truly paltry.

Furthermore, the department’s argument in this context—and indeed in every other respect concerning coercion of employees and waiver of their constitutional protections in the name of company cooperation—ignores the fundamental concept of the presumption of innocence. Although undoubtedly there are some wrongdoers whose misconduct is painfully evident, in the real world life is not so simple. This is particularly true in the context of white-collar enforcement, where often the conduct itself may be clear but its legality (or illegality) is not.

One is left with the clear impression that the Department of Justice’s protestations about a company funding counsel for its employees has much less to do with concern about misuse of shareholders’ assets than it does with the department’s concern that employees who have capable defense counsel will be more difficult to coerce into pleading guilty and “cooperating,” and may actually put the government to the test at trial of often dubious theories of criminal liability that the company itself cannot risk testing. (Indeed, in rare moments of candor, a number of federal prosecutors have conceded as much to me.)

For instance, in 2001 TAP Pharmaceuticals pleaded guilty to federal fraud charges for allegedly paying kickbacks and bribing doctors for prescribing Lupron, and paid $885 million to settle criminal and civil claims. Subsequently, 11 TAP employees went to trial, arguing that the practices in question were common industry practices and were not illegal. After a three-month trial, the district court directed the acquittal of two defendants, the case against a third defendant was dismissed by the government, and the other eight defendants were acquitted of all counts by the jury.24

In fact, the current system of rewarding cooperation, with its expected waivers of attorney–client privilege and attorney work product protection, coerced waivers of employees’ Fifth Amendment rights, forced terminations, limiting or refusing to advance legal fees for employees, and extraction of draconian penalties (particularly if the company does not “cooperate”), has created a whole generation of young prosecutors with no real conception of or respect for the importance of preserving client confidences and of the attorney–client privilege. It is not that these prosecutors are venal; on the contrary, they genuinely view themselves as serving the public good. But by embracing an ends-justify-means approach, they have been trained to view principles and practices with hundreds of years of acceptance as nothing but inconvenient nuisances and roadblocks to the facilitation of their jobs.

And that, in turn, has led to another now nearly universal change in our adversary system of justice: prosecutors have become lazy, since they have the means, which they are aggressively exploiting, to have someone else do their jobs for them. Apparently, it is not enough for prosecutors to have the full weight of the federal government and its investigative agencies, as well as the authority of the grand jury, with which to conduct their business. It is easier to compel companies and their own counsel to become deputized, under the rubric of cooperation, to do their jobs for them—conduct the investigation, coerce Fifth Amendment waivers of the company’s own employees, waive privilege and work product, jettison any employees even arguably involved in the allegedly offending behavior (and decline to pay their legal fees if they have the temerity to challenge the government), and then come back to the government, hat in hand, for the government to proclaim by fiat what price the company must pay to preserve its existence.

While Rome Is Burning
Given all the tools made available to the government to effect this total aberration of our adversary system, as well as today’s political climate, it is perhaps not surprising that our bar associations and our law firms have acceded so meekly. Shamefully, our bar associations have been fiddling while Rome is burning. And if the truth be told, many of our largest and most respected law firms have come to realize that this new regime can be, and often is, a new and very lucrative practice opportunity. The government now expects companies, in essence, to deputize law firms and accounting firms to do the government’s work for them, and companies now feel compelled to do so as another cost of doing business and as a prerequisite for a grant of government lenity.

Under these circumstances, there is actually very little of the pressure attorneys ordinarily feel when trying to defend a client. After all, their mandate is not to investigate to determine if a crime took place, or whether there is a defense. That would be viewed as impeding the government’s investigation and a lack of cooperation. Instead their job is to ferret out any potential misconduct by their own client (at considerable expense to the client) and ensure that it is documented and reported immediately to the government and that all materials (privileged or not) and all employees (Fifth Amendment or not) are provided to the government on a silver platter.

It is the neutron bombing of the client that the lawyers have been handsomely paid to orchestrate. If the government is satisfied, then the company will be left standing, although many of its longtime and loyal employees will be extinguished.

For hundreds of years, lawyers have been taught the sanctity and importance of the attorney–client privilege and the attorney work product protection as central to our adversary system of justice. Indeed I think it is fair to say that the existence of that privilege and that protection helps to define the role of lawyers in society and the public’s perception of the fairness with which the legal system operates. At least in the context of investigations of organizations and their employees, all this is being irreparably destroyed by the government’s successful assault on centuries of tradition.

As Justice Wiley B. Rutledge once warned, “[I]t is from petty tyrannies that large ones take root and grow. This fact can be no more plain than when they are imposed on the most basic rights of all. Seedlings implanted in that soil grow great and, growing, break down the foundations of liberty.”25

Notes

1. See, e.g., Richard P. Swanson, Corporate Investigations and Common Law, N.Y. L.J., Sept. 8, 2004, at 4; John Gibeaut, Junior G-Men, Corporate Lawyers Worry that They’re Doing the Government’s Bidding While Doing Internal Investigations, A.B.A. J., June 2003, at 46.
2. For example, Jamie Olis, a midlevel executive of Dynegy Inc., was charged along with two conspirators (his former boss and a company accountant) with illegally disguising company debt. The other two defendants pleaded guilty and cooperated with the government, but Olis declined to cut a deal and exercised his right to go to trial. After his conviction by a jury, he was sentenced pursuant to federal sentencing guidelines to a term of 24 years and four months. His coconspirators were each facing a maximum sentence of five years, but were expected to receive lesser sentences as a result of their cooperation. See Kristen Hays, Ex-Dynegy Official Gets 24 Years in Prison; Judge Follows New Rule for Harsher Penalties, Wash. Post, Mar. 26, 2004, at E3; Simon Romero, Ex-Executive of Dynegy Is Sentenced to 24 Years, N.Y. Times, Mar. 26, 2004, at C2.
        On January 12, 2005, the Supreme Court found the current federal sentencing guidelines to be unconstitutional, but held that the infirmity would be remedied by treating the guidelines as advisory rather than mandatory. United States v. Booker and United States v. Fanfan, 2005 WL 50108. It is unclear exactly how the Supreme Court’s decision will be implemented, but it seems likely that the premium placed on cooperation to avoid draconian penalties will continue to be just as great under the advisory system as it was under the mandatory system.
3. Recently, for example, outside directors of WorldCom Inc. agreed to pay $18 million of their own money, representing approximately 20 percent of their combined personal net worth, to settle a class action lawsuit. See Brooke A. Masters & Kathleen Day, 10 Ex-WorldCom Directors Agree to Settlement, Wash. Post, Jan. 6, 2005, at E1; Jonathan D. Glater, A Big New Worry for Corporate Directors, N.Y. Times, Jan. 6, 2005, at C1.
4. Memorandum from Larry D. Thompson, Deputy Attorney General, U.S. Department of Justice, to Heads of Department Components, United States Attorneys, Principles of Federal Prosecution of Business Organizations 1 (Jan. 20, 2003) [hereinafter Thompson Memorandum], available at http://www.usdoj.gov/dag/cftf/
   business_organizations.pdf.
5. Id. The Thompson Memorandum emphasized in a footnote that “[w]hile these guidelines refer to corporations, they apply to the consideration of the prosecution of all types of business organizations, including partnerships, sole proprietorships, government entities, and unincorporated associations.” Id. at n.1.
6. Id. at 6; see also id. at 7.
7. Id. at 7–8 (footnote omitted).
8. Interview with United States Attorney James B. Comey Regarding the Department of Justice’s Policy on Requesting Corporations under Criminal Investigation to Waive the Attorney Client Privilege and Work Product Protection, U.S. Attorneys’ Bull., Nov. 2003, at 1, available at http://www.usdoj.gov/usao/eousa/
   foia_reading_room/usab5106.pdf.
9. Id. at 3.
10. Id.
11. Id. at 4.
12. Id.
13. Lori P. Cohen, In the Crossfire: Prosecutors’ Tough New Tactics Turn Firms Against Employees; as Sentencing Rules Stiffen, KPMG Axes Tax Partners, Won’t Pay Their Legal Costs; What “Cooperation” Entails, Wall St. J., June 4, 2004, at A1.
14. Michael Bobelian, Dodging a Bullet—Royal Ahold Shows the Benefits of Cooperation with the SEC, N.Y. L.J., Nov. 4, 2004, at 5.
15. Id.
16. Cohen, supra note 13.
17. Bobelian, supra note 14.
18. Id.; see also Cohen, supra note 13.
19. For those who object to the characterization of company counsel as being “deputized” as agents of the government, the recent Computer Associates case is instructive. In that case three former executives of the company pleaded guilty to charges of federal obstruction of justice for lying to outside counsel retained by the company to investigate improprieties. The guilty pleas were based on the theory that by lying to the outside law firm they had misled federal officials, since the results of the investigation conducted by the company’s attorneys were provided to the government. See Alex Berenson, Case Expands Type of Lies Prosecutors Will Pursue, N.Y. Times, May 17, 2004, at C1.
20. See Garrity v. New Jersey, 385 U.S. 493 (1967).
21. D.C. Ethics Op. 269 (1997) (obligation of lawyer for corporation to clarify role in internal investigation); see also John F. Savarese & Carol Miller, Protecting Privilege and Dealing Fairly with Employees While Conducting an Internal Investigation, 1367 PLI/Corp. 1027, 1065 (2003).
22. Cohen, supra note 13.
23. Id.
24. See Shelley Murphy & Alice Dembner, All acquitted in drug kickbacks case, Boston Globe, July 15, 2004, at A1.
25. Thomas v. Collins, 323 U.S. 516, 543 (1944).