Crossroads of Criminal and Civil Law
Criminal and civil law are traditionally separate disciplines. They remedy different types of wrongs: civil law refers to private wrongs and criminal law to public ones. But increasingly, the line between these disciplines has blurred. Criminal penalties may be monetary and involve restitution to victims, who are often private parties. Strict liability criminal statutes require no mens rea. These are more than definitional or theoretical issues, and this seminar explores the practical problems that arise at the crossroads of criminal and civil law.
Today, every high profile criminal matter – whether Rajaratnam, Madoff or Strauss-Kahn – involves parallel civil litigation, such as an SEC enforcement action, a state attorney general lawsuit, a private class action or a tort claim. For many defendants caught up in a criminal investigation, the consequences of companion civil litigation or regulatory proceedings may be as serious as the criminal investigation; companies may be barred from lines of business, or put out of business entirely, and individuals may face loss of a law, accounting or securities license.
No lawyer can competently represent a client confronting cases at these crossroads without analyzing the ramifications of an action taken in one context for the other. What are the consequences, for a related civil case, of asserting Fifth Amendment rights in the context of a criminal prosecution? What are the consequences, for related civil litigation, of entering a guilty plea in a criminal proceeding? Can a party provide the government with an internal investigation report, but withhold that report from adversaries in civil discovery?
This class addresses these sorts of issues each week, taking into account perspectives of government prosecutors and regulators, private civil and criminal counsel, and the court.