AJCJ Vol. X, No. 2 (1986) BOOK REVIEW

DEFENDING WHITE COLLAR CRIME: A PORTRAIT OF ATTORNEYS AT WORK

New Haven:

by Kenneth Mann Yale University Press, 1985

While the literature dealing with criminal defense attorneys has focused much attention upon plea bargaining, much less effort has been devoted to the actual methods and procedures that criminal defense attorneys employ. Accordingly, Kenneth Mann's study of the white collar defense bar in New York City is a welcome addition to this literature. It is also welcome because much of the work of these attorneys is done during the investigatory pretrial stage and, consequently, takes place outside public and academic view. Mann employed personnel interviews and participant observation to gather the information reported and described in this volume. Mann interviewed forty-four white-collar defense attorneys, centering his questions upon the types of cases handled, the obtaining of cases, methods employed in defending cases, conversations with clients, career patterns and identifying other attorneys specializing in whitecollar crime cases. Mann found that while the interviews provided general outlines of defense functions, they were ineffective in providing the essential detail necessary to determine what attorneys actually do when meeting with clients, investigators and prosecutors. This necessary detail was obtained by participant observation, which appears to be Mann's main method. Mann spent a year and a half working for a law firm in which he observed meetings and strategy sessions and also carried out legal research and memoranda writing. The white-collar crime defense bar is a fast growing speciality that has developed in the last thirty years. Prior to the 1950's the major cases involving white-collar crimes were defended by trial attorneys with predominantly civil practices. T h e growth of this speciality is a response to a greater emphasis, mostly at the federal level, upon with-collar prosecutions. Many of these specialists graduate from elite law schools and serve as assistant U.S. attorneys. They command high fees, enjoy the intellectual challenge of complex cases, and often defend affluent and powerful people. Because they tend to dislike the conformity demanded by large firms, most practice in small firms of under 20 attorneys. Their offices, clustered near

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either Grand Central Station or Wall Street, tend to be elaborate and similar to the offices of Wall Street firms. Mann's description is that of an elite group rather than the portrait of poorly paid marginal practitioners which is frequently used to describe the private criminal bar. The white-collar crime bar that Mann describes is not an abherent subspeciality in an otherwise marginal criminal bar. Every large city possesses a small but very skilled group of criminal defense lawyers who command sizeable fees for~defending serious cases. A description of these attorneys almost similar to Mann's portrayal of white-collar attorneys. They tend to be individualistic, practice in small firms or alone, charge high fees and handle complex cases. They may specialize in areas such as drug cases, tax fraud, legalized gambling, crimes of violence, appeals, or serve a particular type of client. Moreover, the great majority of street crimes are now handled by public defenders. It should be noted that public defender offices in many cities are now professional and competent operations that provide reasonable career opportunities for attorney employees. As a result of the development of public defender offices that handle most cases for defendants with little or not funds and an elite group of practitioners who represent more affluent defendants, the large group of practitioners with marginal skills and dubious ethics that previously existed in most cities has now largely faded into history. The criminal defense bar has evolved into a much more professional and competent group of practitioners. This book reflects that evolution which, largely, has been ignored by the literature in the field. Mann found information control to be the key task performed by white-collar defense lawyers. He devotes much of this volume to describing how these attorneys obtain access to relevant information and selectively withhold or divulge to authorities information relevant to the government's investigation and/or case. These attorneys ask their clients and other sources for precisely the information that enables them to determine the extent of the inculpatory information that the prosecution possesses. The attorneys' role then becomes one of limiting the prosecution's access to incriminating information or divulging exculpatory information to the government. Mann compares the work methods and procedures of white-collar defense specialists with those of defense attorneys specializing in street crimes. Mann states that street crime specialists assume that the prosecution has sufficient evidence to convict, handle many cases, do not fully exploit legal defenses and do little more that negotiate pleas. On the other hand, Mann writes that white-collar defense specialists do not assume that the prosecution has enough evidence to

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convict, handle small numbers of cases, fully exploit legal defenses and, although their clients may ultimately plead guilty, make every effort to keep incriminating evidence from prosecutorial knowledge through controlling access to information. Mann's comparison of the efforts of these two types of attorneys appears most inappropriate. Instead of comparing white-collar specialists to street-crime defense attorneys (and using a rather stereotyped portrayal that may no longer be accurate) more appropriate comparison would be to a comparable elite: the private practitioners who handle crimes of violence for defendants with funds sufficient to hire these practitioners 9 Criminal law as practiced by this elite (like Mann's white-collar specialists) is also less oriented toward plea bargaining and much more adversarial in nature. Such a comparison might well produce results as favorable as those that Mann states that whitecollar specialists achieve9 Mann is severely critical of these specialists, alleging that they move to the very edge of ethical practices and often cross that rather murky line. He is critical of their role in controlling government access to information and consequent detection and proof of crime9 Mann's unhappiness extends to attorney advice about which Mann says: What is not open to debate, and this must be one of the major conclusions of this research, is that defense attorneys have adopted a role in representing clients that excuses them form knowledge of the causal connection between what they say and what their clients do, where the clients' actions are not more than a reasonable possibility. White the attorney often knows that his client, after meeting with him, is going to illegally alter or conceal a document, he does not have "legal knowledge" of a causal connection between the counsel provided and the client's action. The attorney is morally knowledgeable, which may disturb him, but he is instrumentally ignorant. (p. 246)

To remedy this situation Mann recommends a standard of responsibility which: 9 would define "advising the client to do an illegal act" as applying in situations where the client has made obvious to the attorney (that

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is, more than reasonably likelihood of illegal action.

foreseeable) (p. 247)

the

To counter the effect of legal advice that often results inconcealment of inculpatory evidence Mann suggests that consideration be given to relaxing the probable cause requirements for searches and seizures of places of business. Mann's recommendations concerning attorney responsibility appear ill-founded. While Mann states that these white-collar specialists furnish superior and also unethical representation, he offers absolutely no evidence of the impact of the representation. Without such evidence, it is premature to consider these suggestions. In addition, the material presented in this book was gathered from 197478 and appears to be curiously remote from the reality of the practice of criminal law as it exists in the 1980's. Criminal defense attorneys now are being subpoenaed before grand juries or courts to testify concerning their ~lients' affairs, are being prosecuted for weak offenses, and their fees are being forfeited as "fruits" of crime. Mann's recommendations are similar to these contemporary practices that comprise a virtual war against criminal defense attorneys and, if carried out, would allow further governmental intrusion into the attorney-client relationship. Mann's recommendation that the probable cause requirement for search warrants be relaxed would remove from white-collar prosecutions a major constitutional safeguard. Permission to relax constitutional protections for this type of crime will inevitably lead to attempts to further erode individual rights. In a period when individual rights are being cut back, this recommendation, if enacted, would compound an already serious situation. While the author's recommendations for change are inordinately crime control oriented and are devoid of an empirical basis, the descriptions of work tasks of these attorneys and the concept of information control are most useful. Rather than being alarmed by the high quality of defense that Mann states that these attorneys furnish, one might perceive this superior brand of defense as evidence of a truly adversarial system for this specialty and as a model for other areas of criminal law. Norman Kittel Department of Criminal Justice St. Cloud State University

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AJCJ Vol. X, No. 2 (1986) BOOK REVIEW THE POLICE OF BRITAIN by P.J. Stead New York: Macmillan,

1985

THE POLICE OF FRANCE by P.J. Stead New York: Macmillan,

1983

Few authors are as well-equipped to approach comparative criminal justice topics as is Philip John Stead... and we are fortunate indeed to have these two fine volumes from his pen. Already well-known as the author or editor of such widely acclaimed studies as The Police of Paris, Pioneers in Policing, The Police We Deserve (with John Alderson), Vidocq: A Biography, Le Deuxieme Bureau sous l'Occupation, and scores of articles in police and criminological publications, Stead has also had a distinguished academic career in England and America. Honored by the Queen on his retirement as dean of the English National Police College at Bramshill (where England's future chief police administrators are educated), Stead accepted appointment as professor of comparative police studies at the John Jay College of Criminal Justice of the City University of New York. Over the past decade, he has held the posts of dean of graduate studies and of executive officer of the Ph.D. Program in Criminal Justice...and he is now distinguished professor of criminal justice. Professor Stead, as fluent in French as in his mother tongue, approaches The Police of France from the perspectives of history, politics and organizational analysis...successive chapters deal with origins of French policing under the ancient regime, changes in response to the French revolution, the rule of Napoleon, the return of the Bourbons, the second empire and the successive republics. Quite properly he gives special emphasis to police developments during the twentieth century setting forth the organization, jurisdiction, and operating policies and techniques of the Police Nationale and the Gendarmerie Nationale. He introduces the reader to police training, career development, the conduct of criminal investigations, the relations of the police to the magistracy, and their sometimes strained community relationships. By and large he evaluates the French police very favorably indeed with special mention of the high

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quality of police personnel and the effectiveness of their performance. "The stability of France today", he writes, "owes a great deal ... to the internal defenses that stood the test against forces which, had they not been stoutly resisted, would have destroyed the Republic." This book, the most comprehensive and up-to-date in English, must be the basic reference for any student of law enforcement in France. If as I have pointed out Prof. Stead has unique qualifications for addressing himself to the police agencies of France, it can only be said that he is even more a t h o m e with the history and contemporary operations of the police of England and Wales.. for there is hardly a high-ranking police administrator in the United Kingdom who has not been a student of his at the Staff College. The Police of Britain, in twelve short but information-packed chapters, takes us from Romanoccupied Britain to the highly professional police forces of today43 separate forces with more than 120,000 police officers.., and for good measure tells us of the police of Scotland, the Royal Ulster Constabulary, and the policing of the Isle of Man and the Channel Islands (Jersey, Guernsey and smaller isles in the archipelago)...with the odd reference to policing Hong Kong, Australia, New Zealand, and the Republic of Ireland...including a relatively objective co~nentary on the role of the police in the continuing 'troubles' in the northeastern counties of the country. Again as in The Police of France we learn of recruitment (standards and problems), of police training, not only of the newly recruited constables but the advanced in-service education which early identifies and stringently tests the police leaders of the future, of the series amalgamations which has eliminated small, non-professional forces (unlike our American system which has permitted them to proliferate), and of some of the newer problems (race riots, soccer hooliganism, terrorism, and repeated charges of police misconduct) with which police agencies must now cope. Especially interesting is his description and evaluation of the Bramshill Scholars scheme which since its inception in 1964 has sent nearly 500 police officers to Oxford, Cambridge and other English universities to puruse degree studies in law, history, sociology and other subjects (on full pay status). Many of these police scholars have achieved First Class Honors (similar to our summa cum laude) and despite early fear only twenty-one of the graduates have left the police service to pursue other careers. Macmillan is to be co~nended for making these excellent volumes available and we must hope that either Macmillan or another publisher will soon announce similar studies of the police systems of Russia, Germany, Italy, China (we already have two good volumes on Japan), and

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perhaps regional studies of African organizations, methods and problems.

and

Latin-American

police

Donal E. J. Mac Namara University of Tennessee at Chattanooga

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