White Collar Crime in Practice
My goal is for my students to encounter and master situations in class as they will likely encounter in their law practice. Rather than simply cover or discuss a topic, my students internalize, by grappling with, the analyses and skills needed to resolve these situations in a manner befitting of a licensed attorney. In turn, our practical legal education equips our students with skills necessary for real-life lawyering, as well as the confidence to tackle in their future career as lawyers both familiar and unfamiliar situations.
At our law school, in response to the Carnegie Report, we sought to introduce 1L students to substantively engaging areas of practice while infusing practical “lawyering skills” and core values. We have embraced the curriculum change which brought about a collection of “1L electives." Based upon my professional experience in federal criminal prosecution in the field of white collar crime, my vision for a “White Collar Crime in Practice” course (WCC) fit well within our construct, Carnegie's recommendations and my own vision about how I can improve legal education. I have taught the course twice to 1Ls, and have an upper-division section next fall.
I use the exciting and current topic of white collar crime as a vehicle to: (i) explore fundamental legal concepts and analysis, (ii) integrate experiential learning, skills training and key values and (iii) engage students' different learning styles. For materials and discussion, I mine the headlines for current cases, topics and ethical issues. My students assume roles in two intricate white collar crime cases as the course's backdrop. I infuse lawyering skills and core values with the substantive and procedural topics unique to white collar crime.
I teach WCC this way to be a welcome contrast to traditional legal education, simultaneously melding substantive law with lawyering skills, creativity and professionalism.
First Year / Upper Level / Practicum / Carnegie Integrated Course / Non-Required / Legal Writing
Our goals for WCC are two-fold: provide an introduction to the exciting and current world of white collar crime and early exposure to “lawyering skills”– learning by doing - and the core values of our profession. Our learning objectives include that students will better understand: (i) fundamental criminal law concepts through our discussion of white collar crime; (ii) some “traditional” white collar crimes such as scheme to defraud offenses, bribery, money laundering, securities and FCPA, and obstruction of justice offenses; (iii) the federal criminal process - including investigation, grand jury, defense perspective, plea negotiations, discovery and motions, trial and sentencing issues; and (iv) investigation and litigation strategies related to fact gathering, witness interviews, negotiation, and persuasive presentations.
In my WCC in Practice course, I encourage my 1L students to develop an ethical compass and sense of professional identity in the context of criminal representation.
First, regarding ethics in criminal representation, we launch into a simulated WCC case in the first class. In that case, students are confronted with a person who comes into their office with a legal problem. I offer them no context other than their role as a prosecutor or criminal defense attorney. After the students interview the person, we discuss issues unique to a criminal case, including ethical considerations. For instance, we discuss the person's status as a potential client, defendant, cooperator, or witness, and the possible uses of the information elicited. Our analysis of the information's reliability, motives, and need for corroboration leads into a discussion about the importance of developing a high level of professional integrity in the legal community and before the courts.
I highlight infamous and current cases of government abuse, prosecutorial misconduct, and other examples of ethical and professionalism failures - and discuss how they could have been avoided. We explore how the prosecutor must take investigatory steps and build a criminal case based upon reliable evidence and be ever mindful of the larger mission of justice, fairness, and morality. We cover how the defense attorney must zealously represent her client, "shadow" the government's investigation, question and substantiate all information, and take great caution with all representations to the government and the court.
Second, I use several topics to infuse ethics and professionalism into the simulated WCC cases throughout the semester, including investigation techniques, witness preparation, criminal discovery, and plea negotiations. Under investigatory techniques, we ask whether the students serving as prosecutors can and, if so, should issue a subpoena, seek a search warrant or wiretap, use language that may influence a witness, arrest a defendant, and take other investigatory steps. During witness preparation, my students encounter witnesses who lie, obfuscate the truth, and seek advice about doing so. Under criminal discovery, we differentiate disclosure "requirements" from best practices to show students how to avoid reoccurring prosecutorial pitfalls. During plea negotiation exercises, we consider justice, fairness and equality in determining whether the attorney can and, if so, should refer to evidence unavailable at trial, threaten to bring additional charges, and argue unlikely sentencing outcomes.
Lastly, to further contextualize the criminal attorney's role, our WCC fact patterns involve clear transgressions of justice and fairness in society such as corruption, bid rigging, bribery, false billing, and schemes to defraud. Our cases have monetary loss, victims and culpable parties. I remind my students throughout the course that the law provides many remedies for wrongful or unsavory conduct, not all of which merit criminal investigation and prosecution. I even hold a class session with SEC attorneys devoted to parallel proceedings to emphasize the work of civil regulators and private civil plaintiffs in many WCC cases. My students learn to appreciate the import of a criminal investigation and prosecution. We consider the human element inherent in criminal cases, notably the experience of defendants and victims, and the collateral consequences of a criminal case.
Collaborative / Cooperative / Team Learning / Group Discussion / Simulation / Peer Teaching / Legal Writing
For assignments, I develop weekly on-line discussion topics and require written submissions.
The weekly discussion topics present an open forum for students to post within one of my prescribed topics and comment on the posts by others. We pick up on interesting posts for the most engaging discussion during class. Discussion topics include local and current WCC offenses, substantive white collar offenses and federal criminal procedure in WCC investigations and prosecutions.
For written assignments, students draft memoranda of witness interviews, client correspondence, subpoena attachments, investigative plans and court filings. The written submissions, small group exercises and final presentations derive from the students’ rotating advocacy roles within the simulated WCC cases. As their “supervising attorney” I meet with students regularly and advise on fact investigation, witness interviews, plea negotiations and the practical lawyering skill of handing off and inheriting a case. As their final, students present to their classmates a topic in WCC and demonstrate an aspect of it by role-playing a litigation scenario within the context of the simulated cases. Several assignments - including examples of the online discussion topic prompts and written assignments - are attached.
My evidence of student learning comes from the students themselves. Students stop me in the halls and email me current issues and cases applying what they have learned in class. Students appreciate practical legal education - telling me how it worked, why it worked and how the different approaches to their education and learning styles uniquely set them up for success in their other courses, experiential learning opportunities and beyond graduation.
A student sent me the following note: "Professor Porter, I want to thank you again for an awesome class this past semester. I really enjoyed your teaching style and feel as though I came out of the class with a better perspective and understanding on not just white collar crime, but also criminal prosecution/defense, professionalism, and 'lawyering skills' in general." I believe my students confront many real-world issues of criminal practice and gain a keen awareness of the related ethical and professionalism trappings of the practice.
In the future, I want to add more layers of intricacy to the WCC factual scenarios to more regularly confront ethical and professionalism issues in particular.
The best example of effectiveness in my WCC in Practice course comes this week for me: the final presentations. I take a seat in the class as student teams present back the topics we covered in the class using their creativity and materials against the framework of the WCC cases that we collectively developed through the semester. It is nothing short of fascinating to watch. Instead of conducting the typical "review session" at the course's end, my students present - topic by topic - the course back to me, but with more detail and integrated with complex, factual hypotheticals familiar to the entire class. They really learn their topic and pay such great attention to the similar presentations by their colleagues.