By Andrew Maloney for Law.com
With a change in priorities, and issues such as health care, climate and another stimulus package potentially on the agenda for President-elect Joe Biden, white-collar defense lawyers anticipate an uptickin enforcement work.
Firms have already begun reacting to what many expect will be a stepped-up regulatory environment, observers said this week, with a number of them looking for associates in the white-collar arena, partners gaining more traction in the lateral market, and a pickup in government hires.
Even those that have stayed busy during a drop-off in enforcements and prosecutions during the Trump era, and those who aren’t planning major personnel moves, acknowledged a consensus about the amount of work expected to come down the pike.
“I think the expectation generally is that Rip Van Winkle wakes up, and we see a much different environment,” said David Kelley, co-leader of the white-collar and securities litigation practice at Dechert.
Recruiters and Big Law attorneys in white-collar defense practices said while there have been prosecutions and enforcement actions for misuse of CARES Act funds, and in the pharmaceutical and antitrust areas, those areas could swell under a Biden administration, and join with increased enforcement in the environmental and health care arenas, among others.
“We expect to see a much more active regulatory environment, and increased enforcement activity across the board,” said Gina Parlovecchio, a partner at Mayer Brown and member of the firm’s white-collar defense and compliance practice, and its regulatory and investigations practice.
“Firms are looking at white-collar and regulatory compliance as a big growth area for the next several years,” Parlovecchio said.
Some firms are still proceeding cautiously, as uncertainty about the economy lingers and COVID-19 numbers continue to reach new highs. But others are already looking for new associates in white-collar defense and opening the doors to new lateral partners while government lawyers migrate to private practice, said David Lat, managing director for New York-based Lateral Link.
“Again, you’re already starting to see a little bit of all three. But I think you’ll see more as the year starts to draw to a close and next year gets under way,” he said.
Mark Jungers, a partner at Lippman Jungers, agreed that the process has begun for partner moves, and will begin to ramp up for government lawyers.
“There are obviously a whole bunch of people from government who are going to be looking for new jobs, and I think they will find a frothy market for their services once the dust clears,” he said.
Multiple sources noted there could be an additional stimulus package in the new year, and with lots of money pushed out quickly, there is a corollary potential for misuse. Lawyers also said they anticipate the next administration to focus more on corporate wrongdoing.
A Biden administration could try to tackle other priorities through legislation. But even without new laws or new spending from Congress, it should be able to change course through executive orders, enforcement agency appointments, and doubling down on rules in areas such as consumer protection that haven’t been as strictly enforced, said Kelley, the Dechert co-leader and a former U.S. attorney.
“I think there are lots of things there, and statutes already on the books, where you don’t need congressional action in order for the executive branch to fire its rockets,” he said.
Biden has also specifically pledged to create an environmental justice division within the Department of Justice that could result in a “massive increase” in enforcement against polluters, Parlovecchio said.
“Biden has really staked out this position where he’d like to bring real punishment against bad actors in the environmental space. And I think he’s seeking to have these stronger penalties as a deterrent factor, because climate change is obviously a huge part of his administration,” she said.
Parlovecchio, a former assistant U.S. attorney, also said she anticipates more public integrity and anti-corruption matters related to government programs, and increased scrutiny of banks and fair housing lending.
Susan Gaertner, a partner at Lathrop GPM who leads the firm’s investigations and white-collar defense team, said she expects the new administration to more vigorously prosecute environmental violations based on laws such as the Clean Water Act, and for the DOJ to be more aggressive about pursuing criminal healthcare violations after Biden championed the Affordable Care Act.
Relative to the last four years in the practice area, “our expectation is, it’s a new day,” she said.
Gaertner added that she’s preparing to redeploy existing resources in order to meet the potential increased demand for her practice group. That could manifest in associate work, she said.
“I can imagine that with a Biden administration putting more emphasis on these kinds of cases, that that could energize associates and other attorneys who haven’t necessarily focused on this area to want to be part of the action,” she said. “So that’s a place I’d anticipate we would start.”
Kelley said Dechert has stayed busy, and his practice group isn’t depending on rejuvenated enforcement. But he said the firm has “always been able to attract new talent when we need it, And we have lots of talent that has been busy, but can do more.”