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Law and order work together for Lady Justice, as the television show reminds us, by performing different jobs in different places. In real life, all around the nation, Department of Justice prosecutors rely on Federal Bureau of Investigation agents for a variety of tasks. Agents discuss crimes with whistleblowers and arrange for the interception of electronic mail. They interview witnesses and snoop around for documents. They deliver the subpoenas. Then the prosecutors bring the criminals to court. Since Sept. 11, the lawyers who fight white-collar crime have received a fresh reminder of the basic division of labor. Agents have been unavailable to help. The FBI has said that it has moved one-third of all agents to security investigations. This mass reassignment has interfered with their work on investigations into fraud, embezzlement and general bamboozling that they haven’t yet referred for prosecution. The lack of crime fighting isn’t just bad news for society. The lawyers who try to keep white-collar criminals out of jail are fretting, too. Attorneys representing the targets of federal investigations now feel like storekeepers in a college town during the summer: They miss the customers, no matter how annoying they may be. Phones aren’t ringing with new threats from law enforcement, and the defenders are a little apprehensive. Daniel Small, of Boston’s Butters, Brazilian & Small, recently wondered where a client stood in the eyes of law enforcement. “I called the case agent,” Small recalls, but the agent didn’t pick up the phone. “The guy in the office said, ‘You know, just ignore it for a while, because he’s been called out.’” At least David Axelrod, of Columbus, Ohio’s Vorys, Sater, Seymour and Pease, received a courtesy message from the feds to tell him that the hot water around his client was now cold: “The FBI agents called and said, ‘I’ll call you back some day. We’re off to do the anti-terrorism stuff.’” Most cases already scheduled for trial are unaffected by the broad redeployment, and Enron Corp.’s collapse has kept quite a few advocates working late. But trial work and one scandal are not enough to sustain the cash flow for an entire legal specialty — especially one that logs the majority of hours during the early stages of investigations. In January, the American Bar Association’s white-collar crime committee held its northeast regional meeting at the offices of Boston’s Ropes & Gray. Michael Chertoff, the chief of the Department of Justice’s criminal division, came, and sensed an unease among the 100 defense lawyers. “You don’t all have to be looking for unemployment insurance,” attendees say he joked. “We’ll be back.” Chertoff confirms that he made the statement. If, as Chertoff suggests, the current lack of available agents doesn’t affect corporate criminals’ ultimate fate, it certainly will prolong their wait. Wary defense lawyers are preparing for last-minute surprises. “Indictments may run closer to the statute of limitations now,” says H. Campbell Zachry of Dallas’ Jenkens & Gilchrist. Mail fraud has a five-year limit, while bank fraudsters can be prosecuted up to 10 years after their crime. That shift of expected trial time will prompt some new strategies — like running out the clock. Defense attorneys may find themselves arguing in some unfamiliar courthouses, too. “A business-related embezzlement, which two years ago would have been brought to the FBI and pursued there, now may be handled at a state level,” says Jack Cinquegrana, of Boston’s Choate, Hall & Stewart. How do all these uncertainties and contingencies leave the defense attorneys feeling? “There’s a lot of nervous people, a lot of people being more flexible,” says Small, who is vice-chair of the ABA’s white-collar crime committee. Zachry, in Dallas, had to tell a well-regarded attorney hoping to relocate that, sorry, not enough work around here now for the two of us. Cinquegrana sees a bright side to the counterterrorism initiative. The USA Patriot law enacted last October, he notes, requires increased reporting of suspicious activity by the kind of criminal who keeps meters ticking. Not just terrorists from overseas, who don’t tend to buy costly legal advice, but securities brokers and dealers, who do.

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