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Since leaving the U.S. attorney’s office in New York’s Southern District last year, David Anders has come to understand the “counselor” side of practicing law. “I find myself often needing to play the role of psychologist,” he said. Anders joined New York’s Wachtell, Lipton, Rosen & Katz not long after winning the case that sent former WorldCom Inc. executive Bernard Ebbers to jail for fraud. He also helped win an obstruction-of-justice conviction against investment banker Frank Quattrone, which an appeals court later reversed. These days, Anders is comfortable playing defense, he said. But, like hordes of other former federal prosecutors who have joined white-collar practices in the five years since the passage of the Sarbanes-Oxley law, Anders’ shift to the other side has required attention to the practicalities of bottom lines and billable hours. “I’ve learned that, in addressing a problem for a client, it is critical to consider the business implications of every step we take,” said Anders, who responded to questions by e-mail. The exit of prosecutors, whether from district attorneys’ offices, the Securities and Exchange Commission or the U.S. Department of Justice is not new, but the enactment of the Sarbanes-Oxley Act in 2002 created a big demand for attorneys who could handle more corporate governance business. Firms that never had practiced white-collar defense and those that already had established such groups snatched up federal prosecutors in hopes of taking advantage of the opportunity. The ‘first domino’ The implementation of the law five years ago marked a formal power shift away from corporations and sparked a surge in white-collar defense work, said Peter Henning, editor of the White-Collar Crime Blog and a professor at Wayne State University Law School. “Sarbanes-Oxley was a symbol that there would be a greater crackdown on corporations,” he said. “It was the first domino.” As those dominoes have fallen, the white-collar defense business apparently has flourished. For the most part, observers say law firms’ expectations of more work have panned out. In addition to accountability rigors imposed by Sarbanes-Oxley, false revenue reporting and stock-options backdating have made the expansions of white-collar practices a sound investment for firms. Some big names moving to private practice in recent years include former U.S. Attorney Mary Jo White from New York’s Southern District to Debevoise & Plimpton; former U.S. Attorney Debra Wong Yang of the Central District of California to Gibson, Dunn & Crutcher; and former assistant U.S. Attorney Patrick Collins from the Northern District of Illinois to the Chicago office of Seattle-based Perkins Coie. Several prosecutors also recently left the Justice Department in the wake of the firings of eight U.S. attorneys under U.S. Attorney General Alberto Gonzales’ leadership. Indeed, the number of prosecutors marching into private practice and the impetus that Sarbanes-Oxley has created for corporations and their executives to fly right may mean that the white-collar demand has maxed out, said Joel Henning, a consultant with Hildebrandt International. As a result, recruiting prosecutors who can smoothly transition to private practice � with its timesheets, competition and business-development demands � is key to their continued profitability, especially since they do not bring with them a book of business, as does the typical lateral hire. The most pronounced adjustments for former prosecutors require them to be mindful of the hours they bill, the costs to clients and the teamwork necessary to ensure that the practice group makes money. Some attorneys are better suited for those changes than others. “Some are terrific lawyers but lousy at marketing, and can be overpaid as a result,” said Joel Henning of Hildebrandt. The transition to Debevoise & Plimpton was “pretty easy” for former Assistant U.S. Attorney Andrew Ceresney, he said. Ceresney worked with White in the Southern District of New York. But not every prosecutor is cut out for private practice, he added. “You have a client. You have to have people skills,” he said. “You also need to have more sensitivity to business interests, stakeholders, directors, companies, banks.” Private practice also takes a more nuanced approach in decision-making, he said. “The government tends to see things as black and white. You definitely see things more in shades of gray.” Maintaining a lower profile as a defense attorney also is part of the move. A conviction in a juicy white-collar case can be a heady experience for prosecutors lauded for going after the bad guys. Some of the biggest victories for the defense side, however, are those that never grab the public’s attention. “Being a hotshot on the prosecution side is different from establishing yourself of the other side,” said Jonathan Polkes, a former assistant U.S. attorney for New York’s Eastern District and now a partner at Weil, Gotshal & Manges. Polkes went into private practice in 1994. Heightened competition Firms that expanded their practices generally have enough work at the moment, Polkes said, but he added that the competition has made it difficult for former prosecutors to distinguish themselves from the pack. “There are just too many people out there, and it takes years before you can establish a reputation,” he said. Fenwick & West partner Christopher Steskal said that working as an assistant U.S. attorney provided a little “skip in your step.” A former prosecutor in the securities fraud section of the U.S. attorney’s office in San Francisco, he joined the Mountain View, Calif.-based firm in January as chairman of its white-collar/regulatory practice group. As a government lawyer, he was able to make decisions without worrying about whether it was popular, he said. The flip side is that his client these days is “a real human being,” a change that he enjoys. Steskal said becoming the first chairman of the practice group was the selling point in taking the job at Fenwick & West, one of the last sizeable firms in the San Francisco area that didn’t have an attorney focusing specifically on white-collar defense, he said. He agreed that the practice area industrywide is peaking. “The number of seats at the table are getting filled up. There are fewer opportunities where someone can go in and be the person who starts the group.” Peter Henning, the blogger, sees the white-collar demand as episodic, with stock-options backdating as the latest installment. “The question is: What’s the next one?” he said.

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