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Criminal
Maintaining Credibility in FCPA Investigations, by
Lee Stein.
How disclosure is handled will often decide whether the
government will devote some of its scarce resources to the matter, or will count instead on the company to provide
the government with information. This article provides some tips.
Non-Specific.
2 pages. Written:
2008. Added:
9-04-2008.
perkinscoie.com
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Criminal
White Collar Crime: Aggressive Enforcement of the Foreign Corrupt Practices Act, by
Kathryn Keneally.
Enforcement of white collar crime tends to follow trends. Criminal statutes will remain in place, but fall into a degree of disuse for a number of years. The world economy is increasingly global. There are opportunities abroad. There is also a drawn-out, expensive foreign war. So now there is a resurgence of enforcement under the Foreign Corrupt Practices Act (FCPA).
Non-Specific.
3 pages. Written:
2008. Added:
7-04-2008.
The Champion
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Criminal
White Collar Crime: Bells Tolling for Selective Waiver, by
Kathryn Keneally.
The attorney-client privilege and work product immunity are vital to our criminal justice system. Those under investigation or facing criminal prosecution need to know that they can speak freely with counsel. Defense attorneys must be able to advise their clients with the most complete information possible, including those facts and concerns that their clients would not want to share publicly and have the right not to disclose to the government. Counsel also require the ability to investigate, research, and develop the evidence and strategy to defend a criminal matter free of intrusion by potentially adverse parties.
Non-Specific.
3 pages. Written:
2008. Added:
7-04-2008.
www.fulbright.com
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Criminal
Corporate Crime - Work Product Privilege And the Grand Jury, by
Howard W. Goldstein.
Much has been written over the last few years on the subject of the attorney-client and work product
privileges and, in particular, whether the government can, in effect, “penalize” a party for not waiving privilege in the context of an ongoing criminal investigation. The court in Grand Jury Subpoena may have reached the right result, but its opinion fails to grapple with some of the difficult issues inherent in the case.
Non-Specific.
2 pages. Written:
2008. Added:
7-04-2008.
www.nylj.com
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Criminal
Debate Over Lawyers' Role in Anti-Money Laundering Enforcement, by
Howard W. Goldstein.
Duty of lawyers representing financial institutions in the United States is almost solely toward their clients, in the European Union, lawyers have affirmative obligations to report suspected money-laundering activity to government authorities. Apart from the reasons advanced by the ABA against imposing gatekeeping obligations on lawyers, the Kuehne case graphically illustrates the new risks associated with gatekeeping.
Non-Specific.
1 pages. Written:
2008. Added:
7-02-2008.
Business Crimes Bulletin
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Practice Management
How To Conduct a Background Check, by
Genie Tyburski.
Lawyers and clients use the phrase, background check, as a catchall for many types of investigative research involving people or companies. To some, it encompasses a criminal background check. To others, it means finding general information about a business' products and services, reputation, legal status and competitors. For this reason, it helps to understand the context of the request or the specific problem that needs to be solved. More importantly, if the research involves a person, there are legal and ethical reasons for knowing why someone wants a background check.
Non-Specific.
1 pages. Written:
2008. Added:
6-29-2008.
Law Office Computing
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e-Discovery
Authenticating Digital Evidence – Identify and Avoid the Weak Links in Your Chain of Custody, by
Merrill Legal.
Chain of custody is a familiar concept in criminal law, but until recent years it was foreign to civil litigators. The advent of the digital age has made it a major issue because the actual nature of evidence in civil litigation has undergone a radical transformation from tangible paper to electronic data. The purpose of testimony concerning chain of custody is to prove that evidence has not been altered or changed from the time it was collected through production in court. Chain of custody testimony would include documentation on how the data was gathered, transported, analyzed and preserved for production.
Non-Specific.
10 pages. Written:
2008. Added:
5-16-2008.
Website
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Criminal
Sentencing Post-‘Gall’: Reasonableness v. Proportionality, by
Claude M. Tusk.
The reason for the significance of this case lies in the
controversial history of federal sentencing mandates and the judicial scrutiny recently devoted to that history. Practice and jurisprudence under the guidelines are discussed in more detail throughout this article.
Non-Specific.
3 pages. Written:
2007. Added:
5-10-2008.
Outside Counsel
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Criminal
Foreign bribery Risky business, by
Robert Goldspink, Emma O'Kane.
Recent high profile foreign bribery cases in Europe and the US have illustrated the need for companies and their legal advisers to be aware of, and manage, the legal
risks in this area. The risks are real and substantial. US anti-corruption law catches a wider group of offenders than most other countries. The law has been enforced with greater vigour than elsewhere.
Non-Specific.
6 pages. Written:
2007. Added:
5-09-2008.
PLC Cross-border
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Criminal Procedure
Different Rules for Different Suspects, by
Leslie R. Caldwell.
Lawyers practicing whitecollar criminal law may not be aware that the U.S. Department of Justice's policy on publicly identifying individuals suspected but not accused of criminal wrongdoing depends entirely on which part of the department is handling a particular criminal case. There is a serious question whether the department's main justifications for naming uncharged individuals on antitrust carveout lists to motivate corporate cooperation in complex conspiracy cases and to ensure contractual clarity in plea agreements warrant the potentially serious damage to the named individuals' due process rights and reputations.
Non-Specific.
4 pages. Written:
2007. Added:
5-07-2008.
New York Law Journal
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Ethics
Avoiding Individual Liability: Be Right on the Law, Right on the Ethics, and Avoid Even the Appearance of Impropriety, by
Myra A. McDaniel, Denise Pierce, and Charles R. Kimbrough.
This paper focuses on issues relating to a civil suit brought against a public servant regarding official & individual liability; basic criminal misconduct issues that can arise in context of your public service; & civil reporting requirements regarding conflict of interest scenarios & criminal misconduct issues that can arise from those scenarios.
Non-Specific.
20 pages. Written:
2007. Added:
4-03-2008.
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Antitrust
The Criminalization of Consumer Protection— A Brave New World for Defense Counsel, by
Barry J. Cutler.
Legal & ethical questions about advising clients regarding potential criminal exposure & use of Fifth Amendment privilege arise more frequently. This article describes some of these challenging questions and provides some practice tips for dealing with the criminal aspects of consumer protection law practice.
Federal.
6 pages. Written:
2007. Added:
4-02-2008.
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e-Discovery
Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence, by
Sharon Nelson and John Simek.
The digital age has provided criminals with countless ways to manipulate others using computers. In this article originally presented at the ABA Techshow, Sharon Nelson and John Simek explain some of these types of crimes. The good news is that we have gotten better and better at detecting the alteration of electronic evidence.
Federal.
1 pages. Written:
2008. Added:
4-02-2008.
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Government
New Lobbying and Ethics Law Taking Effect, by
Powell Goldstein.
Recently, the President signed into law the Honest Leadership and Open Government Act, which imposes new lobbying disclosure and ethics requirements. Moreover, the
law establishes new civil and criminal liability for failure to comply.
Federal.
5 pages. Written:
2007. Added:
3-19-2008.
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Criminal Procedure
Should Disclosure of Information Always Destroy Privacy?, by
Dr. Ronald B. Standler.
I have posted a detailed essay explaining why the rule in U.S. v Miller, 425 U.S. 435 (1976) and Smith v. Maryland, 442 U.S. 735 (1979) is wrong, and how this rule degrades privacy on the Internet, degrades privacy of library and bookshop records, degrades privacy of personal letters, and degrades privacy of medical records in criminal trials.
Federal.
51 pages. Written:
2007. Added:
11-01-2007.
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Computer Forensics
Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence, by
Sharon D. Nelson, Esq. & John W. Simek.
Digital alteration is appearing more and more often in the courts. The good news is that we have gotten better and better at detecting the alteration of electronic evidence. The bad news is that there is a cadre of unprincipled criminals who are doggone good at evidence alteration.
Non-Specific.
6 pages. Written:
2007. Added:
9-02-2007.
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Criminal
Foreign Intelligence Surveillance Act, by
Dr. Ronald B. Standler.
Probable cause, purpose of FISA, constitutionality, and automatic approval of surveillance orders. Cites cases and law review articles.
Federal.
60 pages. Written:
2007. Added:
8-30-2007.
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Criminal
Devolution Of Authority: The Department Of Justice’s Corporate Charging Policies, by
Lawrence D. Finder.
Agreements in
antitrust cases entered into under the DOJ Antitrust policy are not addressed in this article. The Organizational Guidelines did, however, lay a foundation for the
compliance monitors that would later become a staple of virtually every pretrial
agreement reviewed for this article.
Non-Specific.
52 pages. Written:
2006. Added:
8-27-2007.
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Criminal
The Crime Of Doing Nothing: Strict Liability For Corporate Officers Under The Fdca, by
Brent J. Gurney, Howard M. Shapiro, Robert A. Mays.
In this Article, we discuss the history of the misdemeanor provision and an alarming
contrary use of the provision in a recent case in which the government decided misdemeanor charges were justified in the absence of these factors.
Non-Specific.
21 pages. Written:
2006. Added:
8-02-2007.
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Criminal Procedure
Appeal Waivers And The Future Of Sentencing Policy, by
Nancy J. King, Michael E. O’neill.
This paper is first empirical analysis of appeal waivers clauses in plea agreements by which defendants waive their rights to
appellate and postconviction review. The uneven practice of trading sentencing concessions for waivers among cases & courts also suggests that waivers are
undercutting efforts to advance consistency in federal sentencing.
Non-Specific.
53 pages. Written:
2005. Added:
8-02-2007.
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Criminal
Judge Alito and the Death Penalty, by
Goodwin Liu and Lynsay Skiba.
Surveys Justice Alito's record in death penalty cases.
Federal.
15 pages. Written:
2005. Added:
6-14-2007.
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Criminal Procedure
Search and Seizure In Environmental Cases: Tips and Traps, by
Robert S. Anderson.
In our practice, the prosecutor is as involved as
the agent in the preparation, execution and
return of the search warrant, and analysis of
evidence seized therefrom;
Non-Specific.
5 pages. Written:
2006. Added:
5-10-2007.
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Criminal
Foreign Corrupt Practices Act Developments, by
Foley & Lardner.
Securities and Exchange Commission (SEC), while its recordkeeping and accounting provisions are enforced by the SEC. Both the DOJ and SEC are increasing their enforcement of FCPA, with the SEC becoming particularly active with respect to
foreign subsidiary misconduct.
Non-Specific.
7 pages. Written:
2007. Added:
5-10-2007.
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Criminal Procedure
Fourth Amendment: Search and Seizure, by
-.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.
Non-Specific.
74 pages. Written:
2005. Added:
5-10-2007.
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Criminal Procedure
In defense of evidence and against the exclusionary rule: a libertarian approach, by
Patrick Tinsley, N. Stephan Kinsella and Walter Block.
A prime example is so-called exclusionary rule, according to which evidence uncovered by police in violation of Fourth Amendment's" prohibition against "unreasonable searches & seizures" is excluded from a defendant's criminal trial. Our thesis is that not all legal innovations are improvements, & that this applies, in spades, to exclusionary rule.
Non-Specific.
18 pages. Written:
2005. Added:
5-10-2007.
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Criminal
Admissibility of scientific evidence, by
Paul C. Giannelli.
This article covers The initial outcry over DNA typing standards concerned laboratory problems, The acts of misconduct on the part of Zain, An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases and Validity of theory and technique are distinct issues.
Non-Specific.
23 pages. Written:
2005. Added:
5-10-2007.
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Criminal
White Collar Crime: Defining and Defending Obstruction Charges in the Wake of Arthur Anderson and Quattrone, by
Kathryn Keneally.
The prosecution of the accounting firm Arthur Andersen for its destruction of documents as the Enron scandal unfolded marked a watershed moment in the prosecution of white collar crime. Still, the borderline between valid document retention practices and criminal liability for document destruction has been an area of uncertainty.
Non-Specific.
4 pages. Written:
2006. Added:
5-01-2007.
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Criminal
White Collar Crime: Tax Crimes: More Aggressive Government Policies and Practices, by
Kathryn Keneally.
Thus to convict a defendant under these statutes, the government must prove that the defendant acted "willfully" which the Supreme Court has consistently held to require "the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty."
Non-Specific.
3 pages. Written:
2006. Added:
4-29-2007.
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Criminal Procedure
The KPMG Deferred Prosecution: Warning Flags for Defense Rights, by
Kathryn Keneally.
The policies and practices of the Department of Justice, evolving from the Holder and Thompson Memoranda and most recently culminating a remarkably broad deferred prosecution agreement with KPMG, are effectively taking any such checks out of the system.
Non-Specific.
5 pages. Written:
2005. Added:
4-29-2007.
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Criminal
White Collar Crime: Some of the Distortions to Justice Caused by the Sentencing Guidelines, by
Kathryn Keneally.
There is one point as to which nearly all agree: nobody feel good about what happened to Jamie Olis. For much of the criminal defense bar, the sentence was a bitter I-told-you-so moment. It is only one example of the distortions to the federal criminal justice system caused by the sentencing guidelines.
Non-Specific.
4 pages. Written:
2005. Added:
4-29-2007.
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Criminal
Conducting Employee Interviews After Stein and the McNulty Memorandum, by
Robert R. Stauffer & Thomas P. Monroe.
Much has been written about the McNulty Memorandum’s provisions and on the bill introduced by Sen. Arlen Specter (R-Pa.) on the same subject. This article highlights several areas in which the ‘‘common wisdom’’ regarding the conduct of internal investigations may warrant re-examination.
Non-Specific.
7 pages. Written:
2007. Added:
4-18-2007.
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Criminal
Obstruction for Data Destruction After ‘Andersen’, by
Beryl A. Howell & Andrew Weissmann.
This article discusses the limited scope of the
Andersen decision and the continued vitality of obstruction risks. Ironically, it was the Andersen firm’s conduct that spawned congressional enactment of three new data destruction crimes. Those new statutes differ significantly from the statute that formed the basis of the charge in Andersen.
Non-Specific.
2 pages. Written:
2006. Added:
4-18-2007.
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Criminal Procedure
Discovery Rights & Obligations in Criminal Cases, by
Attorney Simon R. Brown.
Discusses discovery practice in New Hampshire.
New Hampshire.
13 pages. Written:
2005. Added:
4-09-2007.
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Expert Witnesses
Daubert: A Practical Guide to Challenging Your Opponent's Expert - And Protecting Your Own, by
J. Hampton Skelton.
The presentation will address practical issues in making & defending challenges to admissibility of expert testimony with an emphasis on Daubert/Robinson standards & practical tips for achieving your goals. Civil trial procedure and criminal procedure may always invove an expert who will testify to the veracity of almost anything.
Non-Specific.
25 pages. Written:
2005. Added:
4-09-2007.
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Criminal Procedure
A Quarter Century after Upjohn, in our Current Culture of Waver, do Privileges Still Exist?, by
George A. Stamboulidis and James E. Pfeffer.
In this article, we discuss the attorney-client privilege in the corporate context in general, and the Supreme Court’s Upjohn decision in particular. Second, we analyze how the predecessors—the Holder, Thompson, and McCallum Memoranda—treated privilege and waiver. Then we examine the McNulty Memorandum in depth.
Non-Specific.
15 pages. Written:
2007. Added:
3-26-2007.
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Criminal
White-Collar Crime: The Crash Course, by
Solomon L. Wisenberg.
Article focuses on the real-world defense of individuals, as opposed to corporations, during the pre-indictment criminal procedure stage of a federal white-collar crime investigation. Most large companies can avoid indictment by cooperating with the federal government and waiving the attorney-client privilege.
Non-Specific.
10 pages. Written:
2005. Added:
3-23-2007.
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Criminal Procedure
Criminal Procedure in the United States and Canada, by
Miller, Canfield, Paddock & Stone, P.L.C..
The following materials provide an overview and comparison of the criminal court systems and criminal procedures of the United States and Canada. This booklet will be of primary interest to American attorneys with clients facing criminal charges in Canada, as well as Canadian lawyers with clients facing criminal charges in the United States.
Non-Specific.
18 pages. Written:
2006. Added:
3-23-2007.
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Criminal Procedure
An Introduction to Federal Guideline Sentencing, by
Lucien B. Campbell and Henry J. Bemporad.
For lawyers accustomed to discretionary sentencing practice, the federal sentencing guidelines present an alien and dangerous terrain. Because of their complexity, the sentencing guidelines can be a minefield for the defense, increasing exponentially the effort required
to provide effective representation.
Federal.
30 pages. Written:
2005. Added:
3-23-2007.
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Criminal Procedure
Due Diligence: The Sentencing Guidelines and the Lawyer’s Role in Corporate Compliance, by
Steven Carr.
A recent amendment to Federal Sentencing Guidelines imposes new, tougher
requirements and mandates a cultural imperative for ethical behavior and compliance with law by all corporations and business organizations, large and small -- even nonprofit organizations.
Federal.
9 pages. Written:
2005. Added:
3-23-2007.
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Marital and Family
Punishing attorney misconduct in family law matters, by
Lorri Kobe.
Scores of attorneys have been professionally disciplined or sued by their clients or third parties even when no criminal or contempt charges were filed against the attorney. This article explores the world of attorney misconduct that has resulted in discipline, criminal charges, contempt citations and civil suits involving family law matters.
Non-Specific.
18 pages. Written:
2005. Added:
3-21-2007.
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Bankruptcy
Criminal liability for the bankruptcy practitioner, by
Ronald R. Peterson.
This chapter will first explore what constitutes a bankruptcy crime. Next, it
will show how these statutes were applied in a precedent-breaking way to Mr.Gellene. The chapter will then review the areas where the professional may be skating on thin ice; finally, it will explore emerging areas of criminal exposure.
Non-Specific.
26 pages. Written:
2005. Added:
3-20-2007.
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Criminal
The McNulty Memorandum, by
Andrew Weissmann and Ana R. Bugan.
The “Thompson Memorandum” as the now
superseded guidelines were informally
known had come under fire from several sectors, including the business & legal communities, a federal judge & Congress. The Thompson memo required prosecutors to consider several factors in determining whether to indict a company.
Non-Specific.
2 pages. Written:
2007. Added:
3-20-2007.
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Criminal Procedure
Killer Seatbelts and Criminal Procedure, by
David Alan Sklansky.
Killer seatbelts refer to the observation that seatbelts and other mandated safety devices in cars had done little good. But drivers responded by taking less care. The result was only a modest drop in driver and passenger fatalities, fully offset by a rise in pedestrian deaths.
Non-Specific.
9 pages. Written:
2006. Added:
3-18-2007.
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Criminal
Ethics and the problem of white collar crime, by
John Hasnas.
The purpose of this Article is to explore
how federal efforts to combat “white collar” crime bear on the answers to these & similar questions. “Ethics & Problem of White Collar Crime” may suggest an article arguing that the increasing frequency of white collar crime requires renewed efforts to ensure that business people behave more ethiccally.
Non-Specific.
82 pages. Written:
2005. Added:
3-18-2007.
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Criminal
The Concept of White Collar Crime in Law and Legal Theory, by
Stuart P. Green.
Use of the term “white collar crime” to refer to some category of illegal, or at least deviant, conduct is now a common feature of our linguistic landscape. Law inforcement agencies, prosecutors, and defense
attorneys all claim expertise in the area. And term is iincreasingly being used outside the United States, both in English & in translation.
Non-Specific.
34 pages. Written:
2005. Added:
3-18-2007.
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Criminal
Criminal Liability for the Bankruptcy Practitioner, by
Ronald R. Peterson.
On December 2, 1994, the 37-year-old Gellene had persuaded the United
States Bankruptcy Court for the Eastern District of Wisconsin to confirm his
embattled plan of reorganization for Bucyrus-Erie in less than one year. This chapter will first explore what constitutes bankruptcy crime.
Non-Specific.
26 pages. Written:
2005. Added:
3-17-2007.
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Jurisdiction and Venue
Venue: A Brief Look at Federal Law Governing Where a Federal Crime May Be Tried, by
Charles Doyle.
Federal law promises criminal defendants a proper venue, i.e., trial in the district in which the federal crime was committed. A crime is committed in any district in which any of its “conduct” elements are committed.
Federal.
6 pages. Written:
2006. Added:
3-16-2007.
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Civil Pre-Trial
Civil Discovery And Spoliation In Texas, by
A. Michael Warnecke, Brian Collins - Haynes And Boone, LLP.
Describes the consequences of improper document destruction in civil cases. While beyond the scope of this article, in extreme cases, it may also lead to criminal sanctions.
Non-Specific.
43 pages. Written:
2005. Added:
3-16-2007.
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Ethics
Playing Well With Others: Simple Professional Courtesies, by
Justice Ann Crawford McClure.
The Standards for Appellate Conduct were jointly approved by both the Texas Supreme Court & the Court of Criminal Appeals on February 1, 1999. The Standards address not only the responsibilities of the attorney, but the attorney’s expectations of the client.
Non-Specific.
30 pages. Written:
2005. Added:
3-15-2007.
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Commercial
New Enforcement Actions Include Largest FCPA Criminal Fine to Date, by
Roger Witten, Kimberly Parker, Jay Holtmeier.
Recent developments in the Foreign Corrupt Practices Act demonstrate the ongoing commitment of the US government to vigorous anti-corruption enforcement, particularly in the acquisition and joint venture context, and that it is necessary for US companies and their affiliates to have strong compliance programs, books and records, and internal controls.
Federal.
6 pages. Written:
2007. Added:
3-12-2007.
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