October 29, 2024 • 48 mins
Michael Huneke, Co-Chair of the Sanctions, Export Controls, and Anti-Money Laundering practice group, and partner in the Global Investigations, Enforcement, and Compliance practice at Hughes Hubbard & Reed, takes us through his journey in global investigations and enforcement, offering insights into the complexities of the Foreign Corrupt Practices Act (FCPA). We dive into the nuances of handling international bribery cases, from understanding cultural differences to navigating the political landscape of legal enforcement. He shares the vital role of foreign attorneys in these processes and discusses the challenges of managing large investigations, leading diverse teams, and maintaining balance under pressure.
This conversation also explores the intersection of law and technology, emphasizing the importance of continuous learning and adapting to technological changes in the legal world. Whether you’re a legal professional or simply curious about the global landscape of compliance and enforcement, this episode is packed with valuable knowledge and practical advice. Tune in for an engaging discussion on the evolving world of international law!
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Guest Info: Michael Huneke, Partner at Hughes Hubbard & Reed LLP
Website: https://www.hugheshubbard.com/attorneys/michael-huneke
Email: michael.huneke@hugheshubbard.com
LinkedIn: https://www.linkedin.com/in/mhuneke/
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
And
(00:28):
we are back with another episode of the advocate next door.
I'm Kelly Bellena and I'm here with my cohost.
Hello everybody.
My name is Margarita Rango.
Today we are a wonderful guest, Michael Honicky, and I'm very fortunate to have you today.
(00:50):
I met you long ago.
I'd hate to say that you were just a kid because that would just make me sound like I am the
oldest fart in the world.
You started as a summer legal assistant and we were working together at White and Case.
But before I go into it, welcome.
Thank you.
Michael, thank you very much for being on the podcast today.
(01:12):
I can't imagine what you were thinking joining White and Case.
Everyone's in this massive room.
All the paralegals are there working late nights and we're going through boxes, running
around at some point.
It's the middle of the night.
Some of us are crawling under the window because nobody wants to be seen leaving the office.
(01:33):
And here you are joining the firm and wondering what this might be.
Was your intention to go into the legal sector when you were in college?
Well, I'll start by saying thank you.
I'm really excited to be here and it has been a long time that we've known each other,
Kelby.
I did not always plan on going into the legal sector.
(01:54):
In university, I was studying economics and was really trying to decide between a business
career and a legal career.
In a sense, it was decided for me.
I graduated from university in 2002 and there was a dot com bubble, which sounded great
when there was a bubble and then it burst.
And so a lot of people who graduated when I did suddenly didn't have business opportunities
(02:18):
and went to graduate school of some type, whether that was MBA, JD, something else.
I was very fortunate to get into a good school and decided to go get my JD and then take
it from there.
You're in global investigations and at some point I see that you had an antitrust background.
You are doing things in, I guess, FCPA, all sorts of things.
(02:43):
So what would you really call yourself for the kind of the general audience?
What kind of attorney are you?
I'm a problem solver.
Yeah, I love that.
No Kelby, you're right.
And even before the a little bit of an antitrust experience, I had with you an arbitration
type of experience.
I think I was even younger than the kid when I started a white and case.
(03:06):
They had to create like a title for me.
I was a legal research assistant or something like that or legal assistant intern.
We were creating titles just so that you can come into the office and work with us.
Exactly.
What I do today is in our global investigations practice group, what that has been in practice
over the last 20 years has been anti-corruption, not by my choice, but really by the US government's
(03:29):
choice.
Starting in 2004, right when I came out or right before I came out of law school, the
Department of Justice realized that if they enforced the Foreign Corrupt Practices Act
more aggressively, that there were cases to be made out there, large fines to be imposed,
and the real message to be sent about what they expected, corporations who were either
(03:53):
American or who were benefiting from the American financial system by listing even indirectly
through American depository receipts on the US exchanges or otherwise engaging in conduct
in the US.
This was right on the heels of Oil for Food, right on the heels of Enron and then Sarbanes-Oxley.
(04:13):
So there was a political will at that time to really police corporate behavior and really
a political need to be shown doing something about corporate behavior.
This manifested itself in a lot of different types of enforcement activity, but the main
one that created frankly business opportunities for accounting firms, law firms, consulting
(04:33):
firms was the US Foreign Corrupt Practices Act.
It was evidence heavy.
You have to go talk to people.
You have to go look at documents.
You have to figure out whether and how you can bring those documents back.
But I remember very vividly being on airplanes and not only should you not do sensitive work
on airplanes as a best practice, but you couldn't because to your right would be the prosecutor,
(04:56):
to your left would be co-counsel, your client would be hopefully in front of you on the
plane just for appearances sake.
And so it was, and I think still today remains an area where there's lots of international
travel and work related to solving those types of problems.
So it was an interesting time when you got started in your field of practice and it's
(05:17):
amazing that an entire new area of law gets created because the government decides to
pass something like this.
But for somebody who doesn't really understand what the FCPA is, what is that and why is
that even important?
It all comes out of Watergate like many things in American life.
(05:39):
When the US government investigated how were companies making illegal campaign contributions
to President Nixon's reelection campaign, they discovered slush funds.
And when the SEC asked those publicly listed companies among those companies to say, well,
what else are you using the slush funds for?
They said, well, of course we use it to pay foreign officials.
(06:02):
Many years later, Congress finally enacted and by then President Carter signed into law
the Foreign Corrupt Practices Act.
And basically it's a policy decision by the United States that if you're within our jurisdiction,
and particularly if you're taking money from our investors, our shareholders, our people,
we don't want you using that money to bribe foreign officials.
(06:22):
There's all kinds of details and frankly public policy debates about how it works, but that's
the basic idea.
One thing I've been thinking a lot about in the context of some regulations today is why
some things are enforced and some things aren't.
With the Foreign Corrupt Practices Act, it's a good case study there because for decades
the political will to actually enforce it was not really there.
(06:44):
Yes, it was a law.
Yes, there are some enforcement cases from 1977 to 2004, but if you were advising a company
in 1998, hey, if you list your shares on the New York Stock Exchange, these are the top
10 things you need to worry about, Foreign Corrupt Practices Act wouldn't have been on
(07:05):
that list.
It's only when you had these scandals happen in the early 2000s and then the US government
start to have the political will to enforce it in 2004 that you have this activity that
causes actors to care about it.
So, you actually have people say, well, you know what, we do need to worry about whether
(07:29):
we're paying bribes overseas because now it's a real cost to us if we get caught.
When you're dealing with clients or maybe talking about this subject, do you find that
you're explaining what this is a lot or do most people understand that this is a bad
thing that you're not supposed to do?
Because I've dealt with the international sector and sometimes I've had trouble, but
(07:49):
maybe your experience is different.
So how would the cultures, different cultures would impact on that?
Huge impact, huge impact on that.
Taking the cultural point first, in many countries, unfortunately, paying even small bribes is
a normal part of life.
Getting treatment at the hospital, getting a driver's license, getting out of a parking
(08:10):
ticket or a speeding ticket, it's not abnormal.
And when you think about how all of us judge what's a good behavior and what's a bad behavior,
some of that is a moral element that you're taught.
A lot of it is with whom are you associating and what environment do you grow up?
What offends you or what is just maybe not great, but part of normal life.
(08:34):
When you then talk about public contracts, military equipment, dams, schools, roads,
we're now talking about hundreds of millions or billions of dollars.
It's not just a parking ticket.
It's not just a parking ticket.
And you have different types of what they call grand corruption that really causes people
in Congress and the DOJ to be upset.
(08:56):
And that's where schools and roads are not built or they're built in an unsafe way because
of bribes.
And that's where you see the multilateral development banks also having concerns in
those areas.
Or you're talking about public money being spent on products that aren't the best products
or being diverted into the pockets of people who are relatives or friends of the decision
(09:18):
makers.
And for many years, the US by not enforcing it really put US companies at a disadvantage
because there weren't other laws in other countries and culturally other countries didn't
view this as at least their leaders who were getting the money didn't view this as the
same type of problem.
But in 1998, the United States at the OECD, the Organization of Economic Cooperation and
(09:41):
Development achieved the agreement with I think it's now just under 40 countries on
an anti bribery convention, which doesn't say you have to have a law just like the FCPA,
but does say you have to have a law with these common elements so that basically the bribery
of foreign officials is uniformly prohibited.
(10:01):
But still we're talking about less than 40 countries out of more than 170 in the world.
This is not an area where you started your career.
Is that right?
Not at all.
Well, I originally was going to be a doctor and then it was a shadow your parent day in
middle school and my dad wasn't available.
And so I showed up my uncle who was a lawyer and we played golf and had lunch with a client
(10:23):
and he gave me the impression that was normal.
And I was like, that's great.
I haven't had that day since.
And then when I went to law school, I thought that I would become a criminal defense attorney.
I was lucky enough to have Alan Dershowitz as a professor.
And so you can imagine the war stories and things that that class really revolved around.
(10:43):
And so that to me was interesting.
And government are people too.
They make mistakes just like other people do.
And so there's an important role that attorneys play in common law, legal cultures and Anglo-Saxon
illegal cultures of standing up to the government and being very aggressive about it.
And that was very attractive to me.
(11:04):
But then when I started at White and Case after we had been at work there in the past,
what was the White Collar Enforcement Group because of the FCPA and frankly because of
the business opportunities that the FCPA enforcement presented to law firms kind of became almost
immediately the focus of that practice group.
(11:24):
So I think I did one hearing in district court once and then otherwise it became this whole
FCPA experience.
And then just never looked back.
Never looked back.
So you were at Harvard Law School, right?
And are you originally from Boston or did you?
No, I grew up in Ohio.
So in Columbus, Ohio.
(11:45):
So I'm sorry for anyone who is from Michigan that is now immediately offended by my presence.
Who knows where Ohio State is.
But I grew up in Ohio.
I went to the University of Virginia for undergraduate and really enjoyed that.
That's one of the greatest places in the world.
And then I was very lucky to get into good law school.
And during law school because of people I had met at the University of Virginia, I had
(12:08):
the opportunity to work at White and Case.
And because of who that happened to be, I started doing white collar defense work as
an intern and during the summers.
And then by the time I was out, all of that practice group's work was, and I'm exaggerating
a little bit, but essentially all of it was foreign corrupt practices act related.
But it's amazing what kind of doors open up when you start early and you're just exploring
(12:32):
all sorts of avenues.
Because it seemed like every summer you were just busy with something.
You were just not taking a break.
My advice to anyone who's starting out is that this stuff is impossible to plan with
any kind of precision.
We can't tell what opportunities are going to be presented to us.
And you don't have to take every opportunity that is.
(12:53):
If you don't want to do something, if you're not interested in it, you shouldn't take it.
But when opportunities come to you that are unexpected, if it sounds interesting, give
it a try.
And you may find out that you really like doing it.
I really enjoy what I do.
I really enjoy the investigations.
I really enjoy the problem solving.
I really enjoy helping people and companies understand why there are rules in certain
(13:19):
areas, how to comply with those, and why it's really in their benefit long term to do that.
I'm not a fixer.
I'm not here to help people set up an offshore entity to not do the right thing.
That's not what I do.
But it is an educational journey.
And it goes both ways.
I need to learn about them, about their country, about their business, who they are, and then
(13:40):
help them in the best way possible understand where the American laws are coming from.
I'm only a US lawyer, I'm not a lawyer for any other country.
And so help them navigate those problems.
And sometimes those problems are secret.
They're within the company and they solve them, sometimes they're external and there's
an investigation or media reports that they have to deal with.
(14:01):
If you are found guilty of a bribe, then that goes into maybe white collar or prison time.
Do we end up tapping into other practices of law?
Because it sounds like everything is in the shadow of the criminal law.
People wouldn't really care if this was just some kind of administrative penalty that usually
is some fraction of the benefit.
This is a slap on the wrist, but this is actually serious.
(14:23):
When the FBI arrest people at JFK airport, when they get off the plane, when companies
have to pay billion dollar fines, that focuses the mind.
So yeah, you get into all kinds of other areas of law related to this.
And then what you see today, which is also interesting, is at least the current administration
has considered anti-corruption to be a national security priority because of the impact on
(14:46):
geopolitics that corruption has.
And frankly, we're dealing with at least strategic adversaries who deliberately deploy corruption
as a strategic tool.
That brings it into say the same field of vision as export control, sanctions, forced
labor, anti-forced labor laws, all of which are coming under this national security tent.
(15:07):
So that's what I think the future is going to be is that more and more of those laws
start being enforced like the FCPA.
Michael, do you see foreign attorneys coming to the US to practice anti-corruption law?
So we see foreign attorneys coming here very often to get their LLMs.
And then we try to hire them as much as possible to help us because it's great to have attorneys
(15:34):
who have had to learn in multiple cultures to help clients and whether those are companies
or people in other countries with what I was just describing, what is happening, why is
it happening, what do I do about it?
You have to be able to connect with people.
And if you come in and say, I'm an American, give me your hard drive and all your most
(15:55):
private emails and you'll lose your job, but don't worry, I'm here to help.
That's not going to actually change behaviors or change minds and might actually be counterproductive.
But working with people who have come from their home country, truly natively speak the
language, you cannot Google translate this job.
And really can empathize with them is so important because this is when we're talking in particular
(16:20):
about anti-corruption work.
What you're really doing is going somewhere and asking someone to say something very scandalous
and bad about the public officials who are in power in their country.
People are not going to do that.
And you can't expect them to do that over the telephone or Microsoft Teams for very
good reason.
And so you have to meet.
You have to meet in person and you learn more getting coffee and driving to and from the
(16:46):
office than you do in the formal interviews you have with people.
You have to do those.
You still have to build a record and you have to work with them to build an accurate record
and explain why you're doing that.
But you have to also connect with them in order to really help them.
So you're really like protecting them from possible consequences of speaking out.
Certain of them, but certainly the ones that are raising their hands and asking questions
(17:10):
we work very hard and as do in almost all cases, they're employers to protect them.
Sometimes protecting people is having them reach an agreement with a regulator that they
admit that something bad has happened.
Sometimes protecting people is helping them fix things so bad things don't happen again,
whether it becomes public or not.
(17:30):
And as an attorney and someone if they talk to me, that's a privileged discussion.
And so it can stay privileged if they choose to keep it privileged.
In both cases, I'm trying to help people get to the point where going forward they feel
safe and that they understand what the rules are and how to fit within those.
So you're one of the first people that I've heard, at least attorneys that I've heard,
(17:52):
that you value LLMs.
And I'll say that because a lot of times many practice or practice areas prefer JDs working
in the US and here you are, you're looking at it from a different perspective because
your practice is a global one.
I have spent several years in Paris recently.
It's certainly not a hardship posting compared to other places you could be.
(18:17):
One of the things that we have to be very sensitive to is that evidence exists somewhere,
even if it's a cloud somewhere, but there's a server somewhere, people exist somewhere.
And certain countries have certain rules about getting that evidence and moving it.
France in particular for a long time has considered US regulatory enforcement to be a form of
(18:37):
and I'm going to exaggerate a little bit, but economic warfare going back to antitrust
enforcement in the 70s.
And they have what's called a blocking statute, which is a bit of a misnomer because it's
really a process statute that if you wish to take information from France and use it
in any kind of proceeding outside of France, you have to follow a particular process.
And that process has changed over time, but it gives the French government a moment to
(19:02):
evaluate the information that's leaving the country and conceivably block it if they need
to.
So when you're doing anti-corruption reviews, it's sensitive information, it's covered
by this law.
And in the first instance, you need to go there to France to review it, to talk to people
in France, and then to decide, well, what do we need to do with this?
(19:26):
And sometimes the companies end up deciding to cooperate.
Sometimes they don't with US authorities.
If they do, then part of what we do is guide people through that process.
But you can't kind of sit in Washington, DC and receive that type of information.
You need to be in France.
And that's one.
We have a Paris office.
We've been fortunate to have one there since 1966.
(19:48):
So there was a very comfortable place to go to do that work.
You're the kind of attorney that your clients are getting the face time.
You're going through documents.
You're very active as opposed to a partner who's just sitting in a corner office.
You are out there.
You are making it happen.
I have a small mid-isle office, so it's part of it.
But yeah, you have to with this type of these types of subjects.
(20:13):
And again, you have to kind of meet people in their environment and understand where
they're coming from.
Do you think that this will be a challenging field of law for people who are introvert?
We need a lot of different types of people.
A lot of what the ultimate advice is requires very sophisticated analysis.
Not necessarily that the schemes themselves are that complicated once you have the information
(20:38):
in front of you.
And talking earlier about culture, people know this stuff is bad.
People don't go home to their parents and say, great news, today I bribed somebody.
So it's often either mingled with things that are legitimate or designed to look legitimate
and so some of the biggest successes we've had is where we've had people who are deeply
(21:03):
analytical and who've been able to crack the case, so to speak.
So some of those people are extroverts also.
Some of those people are not.
Some of those people have a background in M&A deals on really the deal side.
And so they can spot what looks real and what doesn't in that aspect.
(21:23):
Some of the people know insurance contracts and so if an insurance contract is just a
fake way to pay someone, they can see that.
So really it takes all types to really be able to understand what's normal and then
what maybe isn't normal and then try to piece it together.
Once you have all those pieces and those perspectives, then it maybe looks like, oh, of course this
(21:45):
is what was going on.
You're never getting in the first instance the truth with a capital T. You're always
having to pull together little data points and then ask yourself, does this make sense?
Are people acting rationally from an economic perspective, from a personal relationships
perspective?
And if they are, maybe that gives you confidence in whatever story you're told.
(22:07):
But if they're not, there's usually a reason that they're not and it may not be a good
reason.
And so that's, you kind of infer that and build that out also from those types of facts.
So in Colombia, I'm a Colombian lawyer.
In Colombia, we have this constitutional concept.
I'm not saying that we use it, but for the government to justify certain actions that
(22:30):
is called a state reason, which will be kind of a national security reason.
How often does it comes to play in your practice of law that, no, no, I can't give you this
for national security reasons or I can't discover this for national security reasons or state
reasons.
(22:51):
How would you deal with something like that?
If you that there are documents or information that you might get or you need to get?
It comes up more often than I thought it would have.
Sometimes it comes up as a knee jerk reaction.
If you're doing this type of work in anything remotely related to the aerospace or defense
space area, a lot of people for good reason are very conservative in where they draw those
(23:18):
lines.
What that means is that you need to then find people who do have the clearances to look
at that information if it's one of those types of questions and then they can go look at
documents.
Sometimes when they come back, yeah, it actually wasn't the specific information that we were
looking for.
Was there an agent?
Was there a consultant?
What were they paid?
(23:39):
Is more embarrassing to people, but it's not the schematics of a missile or a plane or
anything like that.
It is a challenge when you're dealing with allegations that relate to current government
officials that they may have the authority themselves to declare something to be a state
issue, a national security issue.
That's not specific to Columbia.
(24:00):
That happens in America.
That happens all over the place.
In those cases, at the very least as a lawyer advising a company facing that situation,
you just want to document, okay, well, this is what I was told.
We are not going to have the ability to overrule that or challenge that, but if something,
let's say there's a change in regime, which usually also comes with in many countries,
(24:23):
including America, allegations of corruption about the former regime, it's very common
for the new government to want to investigate the business dealings of the old government
and the procurement decisions of the old government.
You at least want something to say, look, we tried to look into this.
This is what we were told.
Depending on how important it was, you may or may not need to show that you were trying
(24:44):
to exhaust whatever mechanisms or processes you may have had to get the information.
We do a lot of trust but verify in what we do.
In some cases like that, we just have to document what we were told and whatever we suspect
or think was happening is something we can't really do something about.
Kind of jumping off that point, do these cases get large because sometimes it might not just
(25:08):
be a person you're talking about in maybe representing an entire company or dealings
or maybe high profile people.
I'm assuming that the paperwork can be a lot, in which case then your team, does it end
up being a lot larger or usually working with a smaller team?
Different people have different approaches.
I think to build long term relationships with companies where you can incrementally work
(25:33):
with them to improve company culture over time, you have to be very careful not to go
too much too early and you need to be aware that maybe you can convince somebody one time
to do more than they need to but then you're not going to get that second assignment or
they're not going to trust you.
One of the hardest things to do is to scope an investigation, particularly when you don't
(25:57):
know really anything at the beginning.
Maybe there's a media report that they want to respond to.
Maybe there's a whistleblower internally or he's not even a whistleblower but just someone
who asked a question.
What we try to do a lot is to start with a focused look at whatever the immediate issue
is but then also work with clients about, well, ring fencing I don't think really sounds
(26:20):
like you're actually trying to keep things within a proper focus but what do we need
to look at to make sure this doesn't happen again?
If there's a conclusion that the facts do look like something bad happened, really the
obligation at that point, particularly for any kind of publicly listed company really
in most places in the world is what do we need to do to make sure it doesn't happen
(26:41):
again?
Do we understand the root cause?
If you look at Department of Justice guidance here in the United States, root cause analysis
is really a key building block of their evaluation of whether a compliance program is effective
or not.
So if you feel like you've identified the root cause, if there are people who could
cause harm by continuing in the same positions, you make sure they're either terminated or
(27:04):
they're not in those positions anymore and you want to then establish a process or control
that will reasonably prevent that thing from happening again.
Sometimes that's the end of it.
You do that once and everyone's got the right message and right culture, the right tone
from the top of the company and it is reasonable to think it won't happen again.
(27:25):
Sometimes things are bigger than that and yeah, they do grow and one of the consequences,
even if a company isn't ultimately convicted at trial, but just of being investigated is
that as you might imagine, the US government has a different view about scoping than maybe
companies would voluntarily choose on their own.
It's not to say one is right or wrong, but once things become external, there's going
(27:48):
to be more of a demand that more be looked at than there might otherwise be.
I have gotten this impression from people all over, from Paris to DC to New York.
Everyone says Michael Hunnicky is such a great leader, great person.
That's amazing, especially in the kind of field that you work in, to have that kind
(28:11):
of feedback from colleagues, from people that you manage.
For anyone who might be a senior partner listening to this and say, what can I do to encourage
a new generation in this field coming into it?
Any advice?
Well, that's really kind of people.
So I'll send flowers or cookies or two.
(28:32):
Saying that based on my own experiences, what I've tried to emulate and the good habits
I've tried to emulate are to really explain context and purpose to people.
A lot of times we are really busy and it feels overwhelming and you feel like you don't have
time to really explain to somebody what you want.
(28:55):
What I found myself personally is if I don't do that, guess what?
I usually don't get what I thought I was going to get.
You have to realize that's on you.
That's not on the person doing the work.
If you don't give people feedback, if you don't explain to people the overall mission,
who are we?
Who's our client?
What are we here?
What are we doing?
(29:16):
You can't expect particularly new people to really immediately know exactly what is in
your mind that you've been hiding from them.
Because you have a wealth of knowledge and it might be intuitive at this point, but somebody
who's brand new has no idea what one of these things look like in the end, what your result
might be.
They're learning as they go.
Communication is so important.
(29:36):
Each client and each problem is different.
I know certainly over the last 20 years the problems I've faced and the clients I've worked
for and how best I think to help them.
But even for me, a new client requires myself to think about those questions anew, obviously
with the benefit of a little bit of experience.
(29:57):
I really have made it a point in my own practice to include more people than I might otherwise
in discussions about, okay, here's what's happening, here's why we're doing this, this
is a real deadline, this is a fake deadline, this is, you know, and what I do there aren't
the court deadlines.
That's amazing.
I mean, from being in a case team, that's amazing that you would include people in that
(30:18):
because a lot of times it sucks to feel lost.
I felt lost before, I totally agree.
And then you sit there late at night sometimes, you're like, why am I here?
And that's the worst feeling, right?
If I want anyone who works for me to know that if they're working late, they understand
why they're working late, they understand that the client needs them to work late, and
they understand what's going to happen the next day, and they should expect to see me
(30:41):
respond to them.
If I'm asking people to do things, I'm doing them myself.
If I'm telling somebody that something is urgent, then I respond in an urgent way.
There's nothing worse than working all night on a weekend, sending something to your supervisor
and then it sits for a week.
Was it really necessary that I did that?
And so I think it's just that communication is really important because look, we're in
(31:04):
the service industry.
Sometimes we have emergencies and we never control our calendars.
We never control when a client is going to have a problem or when a client is going to
need something.
I do also think it's important for supervisors, whether it's partner who are just a senior
person on the team, someone has to filter the insanity that they may be experiencing
(31:26):
from the regulator or from the client, and you can't just pass that straight through
because then everybody has to deal with that.
You have to interpret that.
And sometimes you have to push back.
And it's easier the longer you've known somebody, it's easier the longer you've worked with
a particular company to say, look, I understand you think you need that right now, but look,
let's deal with this early next week.
(31:47):
I'll call whomever and I'll take the heat for saying we need more time.
Okay, I know that if I don't draft something when I'm thinking about it, it's very likely
I'll forget, but I don't have to hit send.
I don't have to hit send on a Saturday just because that's when I thought of something.
So waiting to send things to people when you think is a good time for them to get it.
The more the people understand the overall mission, the challenges that we're facing
(32:14):
with either the client, with a regulator, the challenges that our individual points
of contact at a client are facing, what their lives are like, the more that they're better
able to see how they fit in that process.
And it gives meaning and importance to what they're doing and why they're doing it and
when.
That's hugely important.
We ask people to give up so much to work long hours and to defer personal things.
(32:39):
And so it's the least we can do.
It sounds like you're doing a lot of leadership management, handholding, and you're really
keeping it together.
Is this a stressful area of law?
Because you seem to be keeping it really, really well.
Inside, I'm crying.
No.
Look, it's where you do benefit from having experience and be more senior is being able
(33:04):
to better separate the immediate emotional reactions from the actual kind of real concerns
or not concerns.
And again, don't pretend like I do that perfectly.
But I feel like that is my job as someone who's been doing this for 20 years to be that
filter like I was saying before.
And so I definitely don't feel calm inside.
(33:26):
But I know from my own experience that if you're not calm, the people around you are
not going to be calm.
And if you want to be calm, be working in a calm environment, you need to set the tone.
There's a saying that the special forces use and that we've used in some articles to kind
of make this point in our lives, obviously not facing the same type of life or death
(33:49):
situations they do.
But slow is smooth, smooth is fast.
And so if you get all angry or stressed, you're actually not going to do your best work.
And you're actually not going to work faster because you're going to have to redo things.
You're going to make mistakes.
You can catch your breath and calmly explain what you need.
(34:09):
And people working with you will do better work.
That's amazing.
Do you have any tips, tricks that you would pass on to say like, this is how I relax the
stress at the end of the day, maybe something I've learned or picked up along the years.
Are you a hiker?
Are you a musician or something like that?
Earlier life, I was a swimmer.
And so a lot of I would just be exhausted at the end of the day.
(34:31):
And some practices that was but that was before I was a lawyer.
That's great for kids.
Exactly.
Get them in the pool for four hours and hit five in the morning.
What I've done recently, not really deliberately, I can't say why I started this, but what is
just to really study and read things about human behavior.
(34:52):
And there's a great book that I couldn't tell you where I got it from or how I heard of
it called The Inner Game of Tennis.
And it's bizarre because you think what does tennis have to do with this.
But the point is very similar to what you read about in behavioral economics, which
is we really have two two minds, both of which have been important to our survival as a species.
(35:12):
And you have the instinctive reactive mind, which sometimes makes big mistakes, but a
lot of times is right, at least certainly from a survival perspective.
And then you have the kind of thoughtful, deliberative part of your mind, which we also
need when we need that part of the mind, but actually gets in the way if you're trying
(35:33):
to relax or if you're trying to just separate from like the immediate chaos that's around
you.
And so reading that book again, all the ones about like how to do really well at tennis
lessons really struck me as like a useful way of thinking.
Yeah, yeah, I highly recommend it.
And then I personally am very interested in the stoic kind of philosophy and which also
(35:55):
encourages people and tries to help people recognize what's an emotional response.
And then it doesn't mean you don't have it or that you deny those emotions, but you just
recognize it, that that's what that is.
And then you kind of get past that and okay, what do I need to do now going forward?
And how can I do have agency?
(36:16):
I do have choice in how I respond to something.
I may have a choice in how I feel about something that just happened or how I immediately react,
but I do have a choice in what I think about it and how I decide to move forward from that.
So, so nothing to it.
So just read books about stoicism and tennis and you'll be fine.
(36:37):
But you're so much of a pressure as a any professional to specialize.
Things are so competitive.
There's hundreds of people who do what you do.
And so you're focused from a work perspective on learning your craft really well and really
your niche craft very well.
It's been really helpful to me to try to read and whether it's watch a documentary or read
(37:02):
a book or just learn, listen to podcasts about topics that I'm not practicing because a lot
of times there's some useful nugget or perspective there that I actually can use in my work and
whether it's the topic of anti-corruption or more and more economic sanctions and export
controls where we're also doing a lot of investigative work or just whether it's how you interact
(37:25):
with people with whom you work.
Sometimes it's actually just totally meaningless and nothing, but that's great because it's
just, it's just for pure entertainment then.
But yeah, it's another way to decompress.
Exactly.
Yeah, exactly.
One of the things that we think about when we recruit is well, what type of student really
would have an appetite for doing this job and doing it well.
(37:47):
We really look for our students who are interested in not only just problem solving generally,
but a lot of different things.
The more diverse someone's background, the more random frankly, some of their experiences
have been, the more I'm interested in them.
We've had people who play totally random instruments, but there's something about that that, wow,
(38:07):
they must've really taken up that challenge to learn that and they had an interest.
We're looking for people who are passionate about kind of something and maybe that's changed.
Maybe it changes every year, but you really to do this job well, you have to really have
a nose for digging and really the stamina to kind of pursue answers.
(38:28):
And it's not obviously make up answers.
It's really do the hard work to persevere over time to kind of really be the one to
connect the dots to kind of find that stuff.
Because we can't, you can't give people good advice on incomplete or wrong information.
And so people from banking backgrounds, business backgrounds, people who've played sports or
who haven't played sports.
(38:49):
So there's no typical student who comes into this field.
The more atypical the better.
If there's anyone out there thinking, gosh, I have a totally atypical resume and I should
have done this many volunteer hours at this organization or I should have been in this
club in school, like they shouldn't feel that way at all.
If they've done things that they've been interested in, they shouldn't feel excluded from this
(39:10):
practice at all.
Does technology help in this area of practice because a lot of attorneys shy from certain
technology and of course it could depend on their practice field.
Technology is important because there is an aspect that's an arithmetic problem that we
deal with that where there's, you're going to collect thousands, millions of emails and
(39:34):
it's rapidly already far beyond what kind of humans can at least do an initial sorting
of on their own.
And so for many years we've been using keywords and other kind of parameters to try to restrict
to a manageable number what emails we would look at.
That's changed as people have realized that everyone reads their emails, then they thought
WhatsApp was totally secret and safe and then they realized, uh-oh.
(39:58):
Which is not.
It's not.
And so every time someone today is like, oh, signal, totally safe.
I'm like, we all thought WhatsApp was totally safe and then Snowden's like, by the way,
we're listening to everything.
And so it's just a matter to any, anytime you're sending, this is kind of an aside,
but anytime you are sending any data anywhere that's not within your brain, someone else
(40:20):
is getting it and you don't, you can't control what they do with it.
We've had many cases where somebody lost their job because they thought they had deleted
incriminating information, but the other person on the other side of the communication took
a screenshot.
So I guess the answer to your question, I mean, you have to, to do this job, right?
(40:41):
You do have to be curious about technology.
You have to be willing to learn new technologies because it's changing all the time.
We are not at a point yet where you could just run some kind of generative AI over a
set of data and it could tell you what happened.
We are already at a point where you can leverage AI to help find similar patterns of communication
(41:06):
or discussions among other people.
Now that's maybe more of a large language model solution right now than really generating
new information for you.
But the tools that both not only your lawyers, but the government's investigators have at
their disposal to just tear through large quantities of data are incredible.
(41:27):
And then that's, I mean, compared to 20 years ago, that's, that's a huge change.
We'll see, there's a lot of promise and a lot of assertions being made by people selling
AI related tools, what AI can do.
I think it'll continue to do more and more, but you still have to have that kind of human
curiosity and just gut check to really evaluate what you're seeing when you, especially when
(41:52):
you're talking about investigations that are going to affect people's lives, affect companies
value.
You have to, you can't just kind of run it through a model and then just accept whatever
comes out in the back end.
We're far from that.
Just looking through your LinkedIn, you are, you're out there.
You are on podcasts, you are doing webinars, you're doing speaking events, you're writing.
(42:15):
Is that all part of connecting with people or is that sort of necessary for this job?
I really like what I do.
And I like writing, speaking about what I do.
I like engaging with other people about what I do.
A lot of people have had a lot of experience in this space.
And every time I talk to other people, I learned something.
(42:36):
I like to generate the content because just to be very honest for me, it's easier for
me to introduce myself to people by sharing content with them or at, you know, inviting
them to comment on draft content or things like that.
And so part of it is just how I'm building my own network and how I'm meeting new people.
But I really do like figuring out the why and figuring out why is the law written this
(42:59):
way?
Okay, what are we going to do about it?
If that's the reason why.
But I also there is maybe it's a bit romantic, but I do think there is an art to solving
these problems, particularly because even with emails, even with text messages of people,
yeah, sometimes you, there's a smoking gun.
Very rarely is there a smoking gun.
I've never found a smoking gun.
(43:21):
There's not going to be this and I'm going to date myself already by saying there's not
like a Perry Mason moment.
I don't know what the current would be like CSI Miami moment, but even that's probably
dating myself.
I think there's something on Apple.
Yeah, exactly.
And so there is an art to how you exercise good judgment in this space.
And there's an art to how you evaluate perceived problems or not problems in this space.
(43:46):
And there's, it's very easy to kind of cry wolf and leap to conclusions, but then you
may be embarrassed very quickly because there's some new information that you didn't know
about or something changes that makes it look ridiculous.
What you just said.
And so helping people to think about judgment and how to exercise judgment where you are
(44:08):
always going to have imperfect information is one of my kind of areas of interest.
And so I wouldn't say it's a perfectly common theme, you know, that running through everything
I put out there, but it's, it's something that motivates me to write new stuff and put
new stuff out there.
I'm so glad you were so passionate about this because quite honestly, if I was doing this
(44:28):
area of law, I'd be wondering who I'm running into because you're talking about bribes and
governments and it sounds like a book.
It just sounds like you're there undercover.
Some of the fact patterns we've seen, you could, you would never believe that if we
and we would never do this, don't worry to our clients.
But if you were to send Netflix a script with some of the stuff we've seen, they would,
(44:49):
it just would not be believable to them.
And sometimes what you think you see, it's not as exciting at the end of the day either.
You may remember the old movie Assyriana with George Clooney.
So the guy in the warehouse and he's in the warehouse for like the second half of the
movie and finally find something that's kind of what our job used to be.
Now it's more electronic and things like that.
But that's the, you know, there, there is that kind of dramatic element to it.
(45:12):
Sometimes it sounds like a fascinating area that I think many law students would enjoy.
I think it's amazing for law students and for international students to know that there
is this field of law.
Sometimes you are scared about having, I don't know, not having follow the right path and
(45:34):
you don't know where to go, where to apply, what to do.
It's pretty nice that they have this as an option.
And I'm really hoping that law students and people who are practicing law get very interested
in this law field.
I hope they do too.
And it's really fun.
It's a fun area to work in.
And it's, I think one of the reasons it's fun for people with atypical backgrounds is
(45:57):
it's an atypical legal job.
It's not litigation.
It's not corporate work.
You have to kind of know enough about both sides of the typical law firm, those being
the two sides to navigate some of the complex issues you deal with.
But it's really geopolitical consulting.
One of our partners, Jan Dunenwajewicz, does a whole course on the geopolitical lawyer
(46:19):
in France, which is really fascinating.
And he focuses on not only corruption, but also economic sanctions, export controls,
both in the US and Europe.
And it is this kind of, you have to know economics, politics, geopolitics.
You have to be aware of current events in the news.
(46:39):
All of those things help you help clients navigate through some of these issues.
They also are data points against which you can evaluate what you're being told.
So if someone's telling you, oh no, this deal happened in that year in this country, you
can be like, wait a second, is that really what was happening in that country in that
year?
Why would that person have had that influence over the leadership at that time?
(47:02):
Well, maybe they paid the money, right?
It doesn't mean that they did, but it helps you smell out situations that don't make sense
based on what you're being told.
And then you investigate, why don't they make sense?
Sounds like it's very enriching.
It sounds like it really values diversity, you know?
Right.
I like that.
Yeah.
But does the day job affect your enjoyment of a good Netflix movie when they're talking
(47:24):
about some kind of investigation?
You're just like, wait a second, this is not how it would be.
No, no, no.
You can still enjoy those and you get to watch plenty of them on airplanes.
Well, thank you very much for being on the show and it's been a really great learning
process to get to know more about what you do and more about you.
This is fascinating.
So we will be excited to see what else you have going on, I think in the future when
(47:49):
you're doing other webinars and hopefully other podcasts.
Sounds great.
Always happy.
Thank you so much, Michael.
Have a nice week.
And
(00:28):
we are back with another episode of the advocate next door.
I'm Kelly Bellena and I'm here with my cohost.
Hello everybody.
My name is Margarita Rango.
Today we are a wonderful guest, Michael Honicky, and I'm very fortunate to have you today.
(00:50):
I met you long ago.
I'd hate to say that you were just a kid because that would just make me sound like I am the
oldest fart in the world.
You started as a summer legal assistant and we were working together at White and Case.
But before I go into it, welcome.
Thank you.
Michael, thank you very much for being on the podcast today.
(01:12):
I can't imagine what you were thinking joining White and Case.
Everyone's in this massive room.
All the paralegals are there working late nights and we're going through boxes, running
around at some point.
It's the middle of the night.
Some of us are crawling under the window because nobody wants to be seen leaving the office.
(01:33):
And here you are joining the firm and wondering what this might be.
Was your intention to go into the legal sector when you were in college?
Well, I'll start by saying thank you.
I'm really excited to be here and it has been a long time that we've known each other,
Kelby.
I did not always plan on going into the legal sector.
(01:54):
In university, I was studying economics and was really trying to decide between a business
career and a legal career.
In a sense, it was decided for me.
I graduated from university in 2002 and there was a dot com bubble, which sounded great
when there was a bubble and then it burst.
And so a lot of people who graduated when I did suddenly didn't have business opportunities
(02:18):
and went to graduate school of some type, whether that was MBA, JD, something else.
I was very fortunate to get into a good school and decided to go get my JD and then take
it from there.
You're in global investigations and at some point I see that you had an antitrust background.
You are doing things in, I guess, FCPA, all sorts of things.
(02:43):
So what would you really call yourself for the kind of the general audience?
What kind of attorney are you?
I'm a problem solver.
Yeah, I love that.
No Kelby, you're right.
And even before the a little bit of an antitrust experience, I had with you an arbitration
type of experience.
I think I was even younger than the kid when I started a white and case.
(03:06):
They had to create like a title for me.
I was a legal research assistant or something like that or legal assistant intern.
We were creating titles just so that you can come into the office and work with us.
Exactly.
What I do today is in our global investigations practice group, what that has been in practice
over the last 20 years has been anti-corruption, not by my choice, but really by the US government's
(03:29):
choice.
Starting in 2004, right when I came out or right before I came out of law school, the
Department of Justice realized that if they enforced the Foreign Corrupt Practices Act
more aggressively, that there were cases to be made out there, large fines to be imposed,
and the real message to be sent about what they expected, corporations who were either
(03:53):
American or who were benefiting from the American financial system by listing even indirectly
through American depository receipts on the US exchanges or otherwise engaging in conduct
in the US.
This was right on the heels of Oil for Food, right on the heels of Enron and then Sarbanes-Oxley.
(04:13):
So there was a political will at that time to really police corporate behavior and really
a political need to be shown doing something about corporate behavior.
This manifested itself in a lot of different types of enforcement activity, but the main
one that created frankly business opportunities for accounting firms, law firms, consulting
(04:33):
firms was the US Foreign Corrupt Practices Act.
It was evidence heavy.
You have to go talk to people.
You have to go look at documents.
You have to figure out whether and how you can bring those documents back.
But I remember very vividly being on airplanes and not only should you not do sensitive work
on airplanes as a best practice, but you couldn't because to your right would be the prosecutor,
(04:56):
to your left would be co-counsel, your client would be hopefully in front of you on the
plane just for appearances sake.
And so it was, and I think still today remains an area where there's lots of international
travel and work related to solving those types of problems.
So it was an interesting time when you got started in your field of practice and it's
(05:17):
amazing that an entire new area of law gets created because the government decides to
pass something like this.
But for somebody who doesn't really understand what the FCPA is, what is that and why is
that even important?
It all comes out of Watergate like many things in American life.
(05:39):
When the US government investigated how were companies making illegal campaign contributions
to President Nixon's reelection campaign, they discovered slush funds.
And when the SEC asked those publicly listed companies among those companies to say, well,
what else are you using the slush funds for?
They said, well, of course we use it to pay foreign officials.
(06:02):
Many years later, Congress finally enacted and by then President Carter signed into law
the Foreign Corrupt Practices Act.
And basically it's a policy decision by the United States that if you're within our jurisdiction,
and particularly if you're taking money from our investors, our shareholders, our people,
we don't want you using that money to bribe foreign officials.
(06:22):
There's all kinds of details and frankly public policy debates about how it works, but that's
the basic idea.
One thing I've been thinking a lot about in the context of some regulations today is why
some things are enforced and some things aren't.
With the Foreign Corrupt Practices Act, it's a good case study there because for decades
the political will to actually enforce it was not really there.
(06:44):
Yes, it was a law.
Yes, there are some enforcement cases from 1977 to 2004, but if you were advising a company
in 1998, hey, if you list your shares on the New York Stock Exchange, these are the top
10 things you need to worry about, Foreign Corrupt Practices Act wouldn't have been on
(07:05):
that list.
It's only when you had these scandals happen in the early 2000s and then the US government
start to have the political will to enforce it in 2004 that you have this activity that
causes actors to care about it.
So, you actually have people say, well, you know what, we do need to worry about whether
(07:29):
we're paying bribes overseas because now it's a real cost to us if we get caught.
When you're dealing with clients or maybe talking about this subject, do you find that
you're explaining what this is a lot or do most people understand that this is a bad
thing that you're not supposed to do?
Because I've dealt with the international sector and sometimes I've had trouble, but
(07:49):
maybe your experience is different.
So how would the cultures, different cultures would impact on that?
Huge impact, huge impact on that.
Taking the cultural point first, in many countries, unfortunately, paying even small bribes is
a normal part of life.
Getting treatment at the hospital, getting a driver's license, getting out of a parking
(08:10):
ticket or a speeding ticket, it's not abnormal.
And when you think about how all of us judge what's a good behavior and what's a bad behavior,
some of that is a moral element that you're taught.
A lot of it is with whom are you associating and what environment do you grow up?
What offends you or what is just maybe not great, but part of normal life.
(08:34):
When you then talk about public contracts, military equipment, dams, schools, roads,
we're now talking about hundreds of millions or billions of dollars.
It's not just a parking ticket.
It's not just a parking ticket.
And you have different types of what they call grand corruption that really causes people
in Congress and the DOJ to be upset.
(08:56):
And that's where schools and roads are not built or they're built in an unsafe way because
of bribes.
And that's where you see the multilateral development banks also having concerns in
those areas.
Or you're talking about public money being spent on products that aren't the best products
or being diverted into the pockets of people who are relatives or friends of the decision
(09:18):
makers.
And for many years, the US by not enforcing it really put US companies at a disadvantage
because there weren't other laws in other countries and culturally other countries didn't
view this as at least their leaders who were getting the money didn't view this as the
same type of problem.
But in 1998, the United States at the OECD, the Organization of Economic Cooperation and
(09:41):
Development achieved the agreement with I think it's now just under 40 countries on
an anti bribery convention, which doesn't say you have to have a law just like the FCPA,
but does say you have to have a law with these common elements so that basically the bribery
of foreign officials is uniformly prohibited.
(10:01):
But still we're talking about less than 40 countries out of more than 170 in the world.
This is not an area where you started your career.
Is that right?
Not at all.
Well, I originally was going to be a doctor and then it was a shadow your parent day in
middle school and my dad wasn't available.
And so I showed up my uncle who was a lawyer and we played golf and had lunch with a client
(10:23):
and he gave me the impression that was normal.
And I was like, that's great.
I haven't had that day since.
And then when I went to law school, I thought that I would become a criminal defense attorney.
I was lucky enough to have Alan Dershowitz as a professor.
And so you can imagine the war stories and things that that class really revolved around.
(10:43):
And so that to me was interesting.
And government are people too.
They make mistakes just like other people do.
And so there's an important role that attorneys play in common law, legal cultures and Anglo-Saxon
illegal cultures of standing up to the government and being very aggressive about it.
And that was very attractive to me.
(11:04):
But then when I started at White and Case after we had been at work there in the past,
what was the White Collar Enforcement Group because of the FCPA and frankly because of
the business opportunities that the FCPA enforcement presented to law firms kind of became almost
immediately the focus of that practice group.
(11:24):
So I think I did one hearing in district court once and then otherwise it became this whole
FCPA experience.
And then just never looked back.
Never looked back.
So you were at Harvard Law School, right?
And are you originally from Boston or did you?
No, I grew up in Ohio.
So in Columbus, Ohio.
(11:45):
So I'm sorry for anyone who is from Michigan that is now immediately offended by my presence.
Who knows where Ohio State is.
But I grew up in Ohio.
I went to the University of Virginia for undergraduate and really enjoyed that.
That's one of the greatest places in the world.
And then I was very lucky to get into good law school.
And during law school because of people I had met at the University of Virginia, I had
(12:08):
the opportunity to work at White and Case.
And because of who that happened to be, I started doing white collar defense work as
an intern and during the summers.
And then by the time I was out, all of that practice group's work was, and I'm exaggerating
a little bit, but essentially all of it was foreign corrupt practices act related.
But it's amazing what kind of doors open up when you start early and you're just exploring
(12:32):
all sorts of avenues.
Because it seemed like every summer you were just busy with something.
You were just not taking a break.
My advice to anyone who's starting out is that this stuff is impossible to plan with
any kind of precision.
We can't tell what opportunities are going to be presented to us.
And you don't have to take every opportunity that is.
(12:53):
If you don't want to do something, if you're not interested in it, you shouldn't take it.
But when opportunities come to you that are unexpected, if it sounds interesting, give
it a try.
And you may find out that you really like doing it.
I really enjoy what I do.
I really enjoy the investigations.
I really enjoy the problem solving.
I really enjoy helping people and companies understand why there are rules in certain
(13:19):
areas, how to comply with those, and why it's really in their benefit long term to do that.
I'm not a fixer.
I'm not here to help people set up an offshore entity to not do the right thing.
That's not what I do.
But it is an educational journey.
And it goes both ways.
I need to learn about them, about their country, about their business, who they are, and then
(13:40):
help them in the best way possible understand where the American laws are coming from.
I'm only a US lawyer, I'm not a lawyer for any other country.
And so help them navigate those problems.
And sometimes those problems are secret.
They're within the company and they solve them, sometimes they're external and there's
an investigation or media reports that they have to deal with.
(14:01):
If you are found guilty of a bribe, then that goes into maybe white collar or prison time.
Do we end up tapping into other practices of law?
Because it sounds like everything is in the shadow of the criminal law.
People wouldn't really care if this was just some kind of administrative penalty that usually
is some fraction of the benefit.
This is a slap on the wrist, but this is actually serious.
(14:23):
When the FBI arrest people at JFK airport, when they get off the plane, when companies
have to pay billion dollar fines, that focuses the mind.
So yeah, you get into all kinds of other areas of law related to this.
And then what you see today, which is also interesting, is at least the current administration
has considered anti-corruption to be a national security priority because of the impact on
(14:46):
geopolitics that corruption has.
And frankly, we're dealing with at least strategic adversaries who deliberately deploy corruption
as a strategic tool.
That brings it into say the same field of vision as export control, sanctions, forced
labor, anti-forced labor laws, all of which are coming under this national security tent.
(15:07):
So that's what I think the future is going to be is that more and more of those laws
start being enforced like the FCPA.
Michael, do you see foreign attorneys coming to the US to practice anti-corruption law?
So we see foreign attorneys coming here very often to get their LLMs.
And then we try to hire them as much as possible to help us because it's great to have attorneys
(15:34):
who have had to learn in multiple cultures to help clients and whether those are companies
or people in other countries with what I was just describing, what is happening, why is
it happening, what do I do about it?
You have to be able to connect with people.
And if you come in and say, I'm an American, give me your hard drive and all your most
(15:55):
private emails and you'll lose your job, but don't worry, I'm here to help.
That's not going to actually change behaviors or change minds and might actually be counterproductive.
But working with people who have come from their home country, truly natively speak the
language, you cannot Google translate this job.
And really can empathize with them is so important because this is when we're talking in particular
(16:20):
about anti-corruption work.
What you're really doing is going somewhere and asking someone to say something very scandalous
and bad about the public officials who are in power in their country.
People are not going to do that.
And you can't expect them to do that over the telephone or Microsoft Teams for very
good reason.
And so you have to meet.
You have to meet in person and you learn more getting coffee and driving to and from the
(16:46):
office than you do in the formal interviews you have with people.
You have to do those.
You still have to build a record and you have to work with them to build an accurate record
and explain why you're doing that.
But you have to also connect with them in order to really help them.
So you're really like protecting them from possible consequences of speaking out.
Certain of them, but certainly the ones that are raising their hands and asking questions
(17:10):
we work very hard and as do in almost all cases, they're employers to protect them.
Sometimes protecting people is having them reach an agreement with a regulator that they
admit that something bad has happened.
Sometimes protecting people is helping them fix things so bad things don't happen again,
whether it becomes public or not.
(17:30):
And as an attorney and someone if they talk to me, that's a privileged discussion.
And so it can stay privileged if they choose to keep it privileged.
In both cases, I'm trying to help people get to the point where going forward they feel
safe and that they understand what the rules are and how to fit within those.
So you're one of the first people that I've heard, at least attorneys that I've heard,
(17:52):
that you value LLMs.
And I'll say that because a lot of times many practice or practice areas prefer JDs working
in the US and here you are, you're looking at it from a different perspective because
your practice is a global one.
I have spent several years in Paris recently.
It's certainly not a hardship posting compared to other places you could be.
(18:17):
One of the things that we have to be very sensitive to is that evidence exists somewhere,
even if it's a cloud somewhere, but there's a server somewhere, people exist somewhere.
And certain countries have certain rules about getting that evidence and moving it.
France in particular for a long time has considered US regulatory enforcement to be a form of
(18:37):
and I'm going to exaggerate a little bit, but economic warfare going back to antitrust
enforcement in the 70s.
And they have what's called a blocking statute, which is a bit of a misnomer because it's
really a process statute that if you wish to take information from France and use it
in any kind of proceeding outside of France, you have to follow a particular process.
And that process has changed over time, but it gives the French government a moment to
(19:02):
evaluate the information that's leaving the country and conceivably block it if they need
to.
So when you're doing anti-corruption reviews, it's sensitive information, it's covered
by this law.
And in the first instance, you need to go there to France to review it, to talk to people
in France, and then to decide, well, what do we need to do with this?
(19:26):
And sometimes the companies end up deciding to cooperate.
Sometimes they don't with US authorities.
If they do, then part of what we do is guide people through that process.
But you can't kind of sit in Washington, DC and receive that type of information.
You need to be in France.
And that's one.
We have a Paris office.
We've been fortunate to have one there since 1966.
(19:48):
So there was a very comfortable place to go to do that work.
You're the kind of attorney that your clients are getting the face time.
You're going through documents.
You're very active as opposed to a partner who's just sitting in a corner office.
You are out there.
You are making it happen.
I have a small mid-isle office, so it's part of it.
But yeah, you have to with this type of these types of subjects.
(20:13):
And again, you have to kind of meet people in their environment and understand where
they're coming from.
Do you think that this will be a challenging field of law for people who are introvert?
We need a lot of different types of people.
A lot of what the ultimate advice is requires very sophisticated analysis.
Not necessarily that the schemes themselves are that complicated once you have the information
(20:38):
in front of you.
And talking earlier about culture, people know this stuff is bad.
People don't go home to their parents and say, great news, today I bribed somebody.
So it's often either mingled with things that are legitimate or designed to look legitimate
and so some of the biggest successes we've had is where we've had people who are deeply
(21:03):
analytical and who've been able to crack the case, so to speak.
So some of those people are extroverts also.
Some of those people are not.
Some of those people have a background in M&A deals on really the deal side.
And so they can spot what looks real and what doesn't in that aspect.
(21:23):
Some of the people know insurance contracts and so if an insurance contract is just a
fake way to pay someone, they can see that.
So really it takes all types to really be able to understand what's normal and then
what maybe isn't normal and then try to piece it together.
Once you have all those pieces and those perspectives, then it maybe looks like, oh, of course this
(21:45):
is what was going on.
You're never getting in the first instance the truth with a capital T. You're always
having to pull together little data points and then ask yourself, does this make sense?
Are people acting rationally from an economic perspective, from a personal relationships
perspective?
And if they are, maybe that gives you confidence in whatever story you're told.
(22:07):
But if they're not, there's usually a reason that they're not and it may not be a good
reason.
And so that's, you kind of infer that and build that out also from those types of facts.
So in Colombia, I'm a Colombian lawyer.
In Colombia, we have this constitutional concept.
I'm not saying that we use it, but for the government to justify certain actions that
(22:30):
is called a state reason, which will be kind of a national security reason.
How often does it comes to play in your practice of law that, no, no, I can't give you this
for national security reasons or I can't discover this for national security reasons or state
reasons.
(22:51):
How would you deal with something like that?
If you that there are documents or information that you might get or you need to get?
It comes up more often than I thought it would have.
Sometimes it comes up as a knee jerk reaction.
If you're doing this type of work in anything remotely related to the aerospace or defense
space area, a lot of people for good reason are very conservative in where they draw those
(23:18):
lines.
What that means is that you need to then find people who do have the clearances to look
at that information if it's one of those types of questions and then they can go look at
documents.
Sometimes when they come back, yeah, it actually wasn't the specific information that we were
looking for.
Was there an agent?
Was there a consultant?
What were they paid?
(23:39):
Is more embarrassing to people, but it's not the schematics of a missile or a plane or
anything like that.
It is a challenge when you're dealing with allegations that relate to current government
officials that they may have the authority themselves to declare something to be a state
issue, a national security issue.
That's not specific to Columbia.
(24:00):
That happens in America.
That happens all over the place.
In those cases, at the very least as a lawyer advising a company facing that situation,
you just want to document, okay, well, this is what I was told.
We are not going to have the ability to overrule that or challenge that, but if something,
let's say there's a change in regime, which usually also comes with in many countries,
(24:23):
including America, allegations of corruption about the former regime, it's very common
for the new government to want to investigate the business dealings of the old government
and the procurement decisions of the old government.
You at least want something to say, look, we tried to look into this.
This is what we were told.
Depending on how important it was, you may or may not need to show that you were trying
(24:44):
to exhaust whatever mechanisms or processes you may have had to get the information.
We do a lot of trust but verify in what we do.
In some cases like that, we just have to document what we were told and whatever we suspect
or think was happening is something we can't really do something about.
Kind of jumping off that point, do these cases get large because sometimes it might not just
(25:08):
be a person you're talking about in maybe representing an entire company or dealings
or maybe high profile people.
I'm assuming that the paperwork can be a lot, in which case then your team, does it end
up being a lot larger or usually working with a smaller team?
Different people have different approaches.
I think to build long term relationships with companies where you can incrementally work
(25:33):
with them to improve company culture over time, you have to be very careful not to go
too much too early and you need to be aware that maybe you can convince somebody one time
to do more than they need to but then you're not going to get that second assignment or
they're not going to trust you.
One of the hardest things to do is to scope an investigation, particularly when you don't
(25:57):
know really anything at the beginning.
Maybe there's a media report that they want to respond to.
Maybe there's a whistleblower internally or he's not even a whistleblower but just someone
who asked a question.
What we try to do a lot is to start with a focused look at whatever the immediate issue
is but then also work with clients about, well, ring fencing I don't think really sounds
(26:20):
like you're actually trying to keep things within a proper focus but what do we need
to look at to make sure this doesn't happen again?
If there's a conclusion that the facts do look like something bad happened, really the
obligation at that point, particularly for any kind of publicly listed company really
in most places in the world is what do we need to do to make sure it doesn't happen
(26:41):
again?
Do we understand the root cause?
If you look at Department of Justice guidance here in the United States, root cause analysis
is really a key building block of their evaluation of whether a compliance program is effective
or not.
So if you feel like you've identified the root cause, if there are people who could
cause harm by continuing in the same positions, you make sure they're either terminated or
(27:04):
they're not in those positions anymore and you want to then establish a process or control
that will reasonably prevent that thing from happening again.
Sometimes that's the end of it.
You do that once and everyone's got the right message and right culture, the right tone
from the top of the company and it is reasonable to think it won't happen again.
(27:25):
Sometimes things are bigger than that and yeah, they do grow and one of the consequences,
even if a company isn't ultimately convicted at trial, but just of being investigated is
that as you might imagine, the US government has a different view about scoping than maybe
companies would voluntarily choose on their own.
It's not to say one is right or wrong, but once things become external, there's going
(27:48):
to be more of a demand that more be looked at than there might otherwise be.
I have gotten this impression from people all over, from Paris to DC to New York.
Everyone says Michael Hunnicky is such a great leader, great person.
That's amazing, especially in the kind of field that you work in, to have that kind
(28:11):
of feedback from colleagues, from people that you manage.
For anyone who might be a senior partner listening to this and say, what can I do to encourage
a new generation in this field coming into it?
Any advice?
Well, that's really kind of people.
So I'll send flowers or cookies or two.
(28:32):
Saying that based on my own experiences, what I've tried to emulate and the good habits
I've tried to emulate are to really explain context and purpose to people.
A lot of times we are really busy and it feels overwhelming and you feel like you don't have
time to really explain to somebody what you want.
(28:55):
What I found myself personally is if I don't do that, guess what?
I usually don't get what I thought I was going to get.
You have to realize that's on you.
That's not on the person doing the work.
If you don't give people feedback, if you don't explain to people the overall mission,
who are we?
Who's our client?
What are we here?
What are we doing?
(29:16):
You can't expect particularly new people to really immediately know exactly what is in
your mind that you've been hiding from them.
Because you have a wealth of knowledge and it might be intuitive at this point, but somebody
who's brand new has no idea what one of these things look like in the end, what your result
might be.
They're learning as they go.
Communication is so important.
(29:36):
Each client and each problem is different.
I know certainly over the last 20 years the problems I've faced and the clients I've worked
for and how best I think to help them.
But even for me, a new client requires myself to think about those questions anew, obviously
with the benefit of a little bit of experience.
(29:57):
I really have made it a point in my own practice to include more people than I might otherwise
in discussions about, okay, here's what's happening, here's why we're doing this, this
is a real deadline, this is a fake deadline, this is, you know, and what I do there aren't
the court deadlines.
That's amazing.
I mean, from being in a case team, that's amazing that you would include people in that
(30:18):
because a lot of times it sucks to feel lost.
I felt lost before, I totally agree.
And then you sit there late at night sometimes, you're like, why am I here?
And that's the worst feeling, right?
If I want anyone who works for me to know that if they're working late, they understand
why they're working late, they understand that the client needs them to work late, and
they understand what's going to happen the next day, and they should expect to see me
(30:41):
respond to them.
If I'm asking people to do things, I'm doing them myself.
If I'm telling somebody that something is urgent, then I respond in an urgent way.
There's nothing worse than working all night on a weekend, sending something to your supervisor
and then it sits for a week.
Was it really necessary that I did that?
And so I think it's just that communication is really important because look, we're in
(31:04):
the service industry.
Sometimes we have emergencies and we never control our calendars.
We never control when a client is going to have a problem or when a client is going to
need something.
I do also think it's important for supervisors, whether it's partner who are just a senior
person on the team, someone has to filter the insanity that they may be experiencing
(31:26):
from the regulator or from the client, and you can't just pass that straight through
because then everybody has to deal with that.
You have to interpret that.
And sometimes you have to push back.
And it's easier the longer you've known somebody, it's easier the longer you've worked with
a particular company to say, look, I understand you think you need that right now, but look,
let's deal with this early next week.
(31:47):
I'll call whomever and I'll take the heat for saying we need more time.
Okay, I know that if I don't draft something when I'm thinking about it, it's very likely
I'll forget, but I don't have to hit send.
I don't have to hit send on a Saturday just because that's when I thought of something.
So waiting to send things to people when you think is a good time for them to get it.
The more the people understand the overall mission, the challenges that we're facing
(32:14):
with either the client, with a regulator, the challenges that our individual points
of contact at a client are facing, what their lives are like, the more that they're better
able to see how they fit in that process.
And it gives meaning and importance to what they're doing and why they're doing it and
when.
That's hugely important.
We ask people to give up so much to work long hours and to defer personal things.
(32:39):
And so it's the least we can do.
It sounds like you're doing a lot of leadership management, handholding, and you're really
keeping it together.
Is this a stressful area of law?
Because you seem to be keeping it really, really well.
Inside, I'm crying.
No.
Look, it's where you do benefit from having experience and be more senior is being able
(33:04):
to better separate the immediate emotional reactions from the actual kind of real concerns
or not concerns.
And again, don't pretend like I do that perfectly.
But I feel like that is my job as someone who's been doing this for 20 years to be that
filter like I was saying before.
And so I definitely don't feel calm inside.
(33:26):
But I know from my own experience that if you're not calm, the people around you are
not going to be calm.
And if you want to be calm, be working in a calm environment, you need to set the tone.
There's a saying that the special forces use and that we've used in some articles to kind
of make this point in our lives, obviously not facing the same type of life or death
(33:49):
situations they do.
But slow is smooth, smooth is fast.
And so if you get all angry or stressed, you're actually not going to do your best work.
And you're actually not going to work faster because you're going to have to redo things.
You're going to make mistakes.
You can catch your breath and calmly explain what you need.
(34:09):
And people working with you will do better work.
That's amazing.
Do you have any tips, tricks that you would pass on to say like, this is how I relax the
stress at the end of the day, maybe something I've learned or picked up along the years.
Are you a hiker?
Are you a musician or something like that?
Earlier life, I was a swimmer.
And so a lot of I would just be exhausted at the end of the day.
(34:31):
And some practices that was but that was before I was a lawyer.
That's great for kids.
Exactly.
Get them in the pool for four hours and hit five in the morning.
What I've done recently, not really deliberately, I can't say why I started this, but what is
just to really study and read things about human behavior.
(34:52):
And there's a great book that I couldn't tell you where I got it from or how I heard of
it called The Inner Game of Tennis.
And it's bizarre because you think what does tennis have to do with this.
But the point is very similar to what you read about in behavioral economics, which
is we really have two two minds, both of which have been important to our survival as a species.
(35:12):
And you have the instinctive reactive mind, which sometimes makes big mistakes, but a
lot of times is right, at least certainly from a survival perspective.
And then you have the kind of thoughtful, deliberative part of your mind, which we also
need when we need that part of the mind, but actually gets in the way if you're trying
(35:33):
to relax or if you're trying to just separate from like the immediate chaos that's around
you.
And so reading that book again, all the ones about like how to do really well at tennis
lessons really struck me as like a useful way of thinking.
Yeah, yeah, I highly recommend it.
And then I personally am very interested in the stoic kind of philosophy and which also
(35:55):
encourages people and tries to help people recognize what's an emotional response.
And then it doesn't mean you don't have it or that you deny those emotions, but you just
recognize it, that that's what that is.
And then you kind of get past that and okay, what do I need to do now going forward?
And how can I do have agency?
(36:16):
I do have choice in how I respond to something.
I may have a choice in how I feel about something that just happened or how I immediately react,
but I do have a choice in what I think about it and how I decide to move forward from that.
So, so nothing to it.
So just read books about stoicism and tennis and you'll be fine.
(36:37):
But you're so much of a pressure as a any professional to specialize.
Things are so competitive.
There's hundreds of people who do what you do.
And so you're focused from a work perspective on learning your craft really well and really
your niche craft very well.
It's been really helpful to me to try to read and whether it's watch a documentary or read
(37:02):
a book or just learn, listen to podcasts about topics that I'm not practicing because a lot
of times there's some useful nugget or perspective there that I actually can use in my work and
whether it's the topic of anti-corruption or more and more economic sanctions and export
controls where we're also doing a lot of investigative work or just whether it's how you interact
(37:25):
with people with whom you work.
Sometimes it's actually just totally meaningless and nothing, but that's great because it's
just, it's just for pure entertainment then.
But yeah, it's another way to decompress.
Exactly.
Yeah, exactly.
One of the things that we think about when we recruit is well, what type of student really
would have an appetite for doing this job and doing it well.
(37:47):
We really look for our students who are interested in not only just problem solving generally,
but a lot of different things.
The more diverse someone's background, the more random frankly, some of their experiences
have been, the more I'm interested in them.
We've had people who play totally random instruments, but there's something about that that, wow,
(38:07):
they must've really taken up that challenge to learn that and they had an interest.
We're looking for people who are passionate about kind of something and maybe that's changed.
Maybe it changes every year, but you really to do this job well, you have to really have
a nose for digging and really the stamina to kind of pursue answers.
(38:28):
And it's not obviously make up answers.
It's really do the hard work to persevere over time to kind of really be the one to
connect the dots to kind of find that stuff.
Because we can't, you can't give people good advice on incomplete or wrong information.
And so people from banking backgrounds, business backgrounds, people who've played sports or
who haven't played sports.
(38:49):
So there's no typical student who comes into this field.
The more atypical the better.
If there's anyone out there thinking, gosh, I have a totally atypical resume and I should
have done this many volunteer hours at this organization or I should have been in this
club in school, like they shouldn't feel that way at all.
If they've done things that they've been interested in, they shouldn't feel excluded from this
(39:10):
practice at all.
Does technology help in this area of practice because a lot of attorneys shy from certain
technology and of course it could depend on their practice field.
Technology is important because there is an aspect that's an arithmetic problem that we
deal with that where there's, you're going to collect thousands, millions of emails and
(39:34):
it's rapidly already far beyond what kind of humans can at least do an initial sorting
of on their own.
And so for many years we've been using keywords and other kind of parameters to try to restrict
to a manageable number what emails we would look at.
That's changed as people have realized that everyone reads their emails, then they thought
WhatsApp was totally secret and safe and then they realized, uh-oh.
(39:58):
Which is not.
It's not.
And so every time someone today is like, oh, signal, totally safe.
I'm like, we all thought WhatsApp was totally safe and then Snowden's like, by the way,
we're listening to everything.
And so it's just a matter to any, anytime you're sending, this is kind of an aside,
but anytime you are sending any data anywhere that's not within your brain, someone else
(40:20):
is getting it and you don't, you can't control what they do with it.
We've had many cases where somebody lost their job because they thought they had deleted
incriminating information, but the other person on the other side of the communication took
a screenshot.
So I guess the answer to your question, I mean, you have to, to do this job, right?
(40:41):
You do have to be curious about technology.
You have to be willing to learn new technologies because it's changing all the time.
We are not at a point yet where you could just run some kind of generative AI over a
set of data and it could tell you what happened.
We are already at a point where you can leverage AI to help find similar patterns of communication
(41:06):
or discussions among other people.
Now that's maybe more of a large language model solution right now than really generating
new information for you.
But the tools that both not only your lawyers, but the government's investigators have at
their disposal to just tear through large quantities of data are incredible.
(41:27):
And then that's, I mean, compared to 20 years ago, that's, that's a huge change.
We'll see, there's a lot of promise and a lot of assertions being made by people selling
AI related tools, what AI can do.
I think it'll continue to do more and more, but you still have to have that kind of human
curiosity and just gut check to really evaluate what you're seeing when you, especially when
(41:52):
you're talking about investigations that are going to affect people's lives, affect companies
value.
You have to, you can't just kind of run it through a model and then just accept whatever
comes out in the back end.
We're far from that.
Just looking through your LinkedIn, you are, you're out there.
You are on podcasts, you are doing webinars, you're doing speaking events, you're writing.
(42:15):
Is that all part of connecting with people or is that sort of necessary for this job?
I really like what I do.
And I like writing, speaking about what I do.
I like engaging with other people about what I do.
A lot of people have had a lot of experience in this space.
And every time I talk to other people, I learned something.
(42:36):
I like to generate the content because just to be very honest for me, it's easier for
me to introduce myself to people by sharing content with them or at, you know, inviting
them to comment on draft content or things like that.
And so part of it is just how I'm building my own network and how I'm meeting new people.
But I really do like figuring out the why and figuring out why is the law written this
(42:59):
way?
Okay, what are we going to do about it?
If that's the reason why.
But I also there is maybe it's a bit romantic, but I do think there is an art to solving
these problems, particularly because even with emails, even with text messages of people,
yeah, sometimes you, there's a smoking gun.
Very rarely is there a smoking gun.
I've never found a smoking gun.
(43:21):
There's not going to be this and I'm going to date myself already by saying there's not
like a Perry Mason moment.
I don't know what the current would be like CSI Miami moment, but even that's probably
dating myself.
I think there's something on Apple.
Yeah, exactly.
And so there is an art to how you exercise good judgment in this space.
And there's an art to how you evaluate perceived problems or not problems in this space.
(43:46):
And there's, it's very easy to kind of cry wolf and leap to conclusions, but then you
may be embarrassed very quickly because there's some new information that you didn't know
about or something changes that makes it look ridiculous.
What you just said.
And so helping people to think about judgment and how to exercise judgment where you are
(44:08):
always going to have imperfect information is one of my kind of areas of interest.
And so I wouldn't say it's a perfectly common theme, you know, that running through everything
I put out there, but it's, it's something that motivates me to write new stuff and put
new stuff out there.
I'm so glad you were so passionate about this because quite honestly, if I was doing this
(44:28):
area of law, I'd be wondering who I'm running into because you're talking about bribes and
governments and it sounds like a book.
It just sounds like you're there undercover.
Some of the fact patterns we've seen, you could, you would never believe that if we
and we would never do this, don't worry to our clients.
But if you were to send Netflix a script with some of the stuff we've seen, they would,
(44:49):
it just would not be believable to them.
And sometimes what you think you see, it's not as exciting at the end of the day either.
You may remember the old movie Assyriana with George Clooney.
So the guy in the warehouse and he's in the warehouse for like the second half of the
movie and finally find something that's kind of what our job used to be.
Now it's more electronic and things like that.
But that's the, you know, there, there is that kind of dramatic element to it.
(45:12):
Sometimes it sounds like a fascinating area that I think many law students would enjoy.
I think it's amazing for law students and for international students to know that there
is this field of law.
Sometimes you are scared about having, I don't know, not having follow the right path and
(45:34):
you don't know where to go, where to apply, what to do.
It's pretty nice that they have this as an option.
And I'm really hoping that law students and people who are practicing law get very interested
in this law field.
I hope they do too.
And it's really fun.
It's a fun area to work in.
And it's, I think one of the reasons it's fun for people with atypical backgrounds is
(45:57):
it's an atypical legal job.
It's not litigation.
It's not corporate work.
You have to kind of know enough about both sides of the typical law firm, those being
the two sides to navigate some of the complex issues you deal with.
But it's really geopolitical consulting.
One of our partners, Jan Dunenwajewicz, does a whole course on the geopolitical lawyer
(46:19):
in France, which is really fascinating.
And he focuses on not only corruption, but also economic sanctions, export controls,
both in the US and Europe.
And it is this kind of, you have to know economics, politics, geopolitics.
You have to be aware of current events in the news.
(46:39):
All of those things help you help clients navigate through some of these issues.
They also are data points against which you can evaluate what you're being told.
So if someone's telling you, oh no, this deal happened in that year in this country, you
can be like, wait a second, is that really what was happening in that country in that
year?
Why would that person have had that influence over the leadership at that time?
(47:02):
Well, maybe they paid the money, right?
It doesn't mean that they did, but it helps you smell out situations that don't make sense
based on what you're being told.
And then you investigate, why don't they make sense?
Sounds like it's very enriching.
It sounds like it really values diversity, you know?
Right.
I like that.
Yeah.
But does the day job affect your enjoyment of a good Netflix movie when they're talking
(47:24):
about some kind of investigation?
You're just like, wait a second, this is not how it would be.
No, no, no.
You can still enjoy those and you get to watch plenty of them on airplanes.
Well, thank you very much for being on the show and it's been a really great learning
process to get to know more about what you do and more about you.
This is fascinating.
So we will be excited to see what else you have going on, I think in the future when
(47:49):
you're doing other webinars and hopefully other podcasts.
Sounds great.
Always happy.
Thank you so much, Michael.
Have a nice week.
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