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The Perils of Immunity in the Era of Globalization

By Ronald H. Levine

Twenty years ago, a defense attorney might have sighed with relief to hear an Assistant U.S. Attorney (AUSA) say that a client was only a “witness,” or would not be prosecuted, or would be immunized in return for truthful cooperation in the government's investigation. These days, not so fast. In our digitized-globalized era, assurances from one jurisdiction may not insulate a client from prosecution across the country or even around the globe.

Examples abound of the ever-increasing collaboration between state, federal and foreign law enforcement authorities: parallel Foreign Corrupt Practices Act and bribery investigations here and abroad; U.S. prosecution of foreign nationals like Canadian media magnate Conrad Black for “honest services fraud” or of three British bankers in connection with the Enron meltdown; and the intensified investigations of U.S. businesses by European antitrust authorities, just to name a few. Protecting one's client has become a multi-dimensional chess game. Accordingly, if your client has leverage to bargain with prosecutors, take care to negotiate protection that matches the jurisdictional risk profile of the suspect conduct.

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