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LAW vs. LORE: The Lack of Judicial Precedent in FCPA Cases

By Robert J. Anello and Kostya Lantsman

When delivering legal advice, lawyers attempt to provide informed guidance based on the prevailing law. Yet, when it comes to significant chunks of the white-collar criminal and regulatory landscape, practitioners often are forced to provide advice based on professional lore derived from negotiated settlements rather than enacted laws or judicially established case law.

Statutes, regulations and court decisions make up the rules of law. But white-collar practitioners often encounter vast swaths of the landscape that have only the most basic or broad statutory language and lack any judicial precedent. In these areas, they may not be able comfortably to provide counsel based on law and, instead, often rely on lore ' the accepted traditions developed among prosecutors, government regulators, and defense attorneys. This lore develops from negotiated settlements often lacking the true dynamics of adversarial proceedings before a neutral magistrate.

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