Seven Keys to Selecting an OFAC Sanctions Defense Attorney

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Brian Kuester
Attorney Brian Kuester
OFAC Sanctions Defense Team Lead
Former US Attorney
Former District Attorney
Ellen Comley
Attorney Ellen Comley
OFAC Sanctions Defense Team Lead
Senior Counsel
Roger Bach
Roger Bach
OFAC Sanctions Defense Team Consultant
Former Special Agent (OIG)

If you are a company executive and you have learned that the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) has opened an investigation into your business for potentially violating U.S. economic sanctions against a foreign party, you need to find an OFAC sanctions defense attorney, and fast. These cases move quickly and carry significant penalties, not the least of which is a tarnished reputation for doing business with an enemy of America.

The OFAC sanctions defense lawyers at The Criminal Defense Firm have guided numerous corporate clients through this challenging and dangerous time. Here are seven keys that they think you should consider when choosing an OFAC sanctions defense lawyer for your needs.

1. Get Legal Representation as Quickly as Possible

First and foremost, there is no reason to delay getting an OFAC sanctions defense lawyer on your side.

OFAC is primarily concerned with stopping any potential violations of economic sanctions as soon as possible. Their investigation will move fast. Delaying in hiring an OFAC sanctions defense lawyer will leave your company exposed during these pivotal moments, allowing investigators to uncover potentially incriminating evidence unchallenged. This will mean that your position as the target of an investigation will only get worse as time moves on.

Additionally, hiring a lawyer as quickly as possible will give your defense attorney more time to prepare your case. Ideally, you would hire a defense lawyer as soon as you learn that OFAC is investigating your company. This can give your lawyer the time it takes to conduct an internal investigation to discover what OFAC agents are likely to find. With that information, you can decide how to best proceed without having taken a first, potentially disastrous, step.

Getting a good, effective OFAC defense lawyer right away is likely going to lead to better outcomes than getting the perfect OFAC defense lawyer after a week of searching.

2. Negotiating Skills are More Important Than Trial Skills

An important thing to know about OFAC cases is that they only make it to trial extremely rarely, and are generally resolved through a negotiated settlement out of court. Companies very much want to avoid being accused of violating economic sanctions in public, and OFAC knows that. Additionally, OFAC’s interests in punishing violators is generally limited to imposing penalties that deter similar conduct by others or that punishes deliberate or especially negligent conduct.

It is essential to have an OFAC sanctions defense lawyer who is familiar with the semi-confrontational atmosphere between the federal agency and the company that did all that it could to comply with the law. Having one with good negotiating skills is more likely to produce favorable outcomes. If the case goes all the way to trial and your lawyer’s trial skills come into play, your company’s brand is already going to take a big hit from the publicity that the trial generates.

3. Look for Prior Clients in Your Sector of Business

You generally want an OFAC defense lawyer who is familiar with the type of business that your company does. While this is more important for OFAC compliance services, a familiarity with your business conduct can still help OFAC sanctions defense lawyers explain the difficulties that your company faces in complying with economic sanctions, excusing the unintentional violation at issue.

4. Federal Court Experience is a Must

Many corporate decision-makers and stakeholders underappreciate how much more difficult it is to defend a case in federal court versus state court. The judges may have lifetime tenure and the courthouses may be grander on the federal side, but the real difference is who will be prosecuting your case. In state court, it will be a district attorney’s office or maybe the state attorney general’s office. These county and state agencies have a fraction of the resources that federal law enforcement agencies, like OFAC, can tap into.

Many defense lawyers who focus on state court cases are overwhelmed by the demands that they face in federal court. Finding an OFAC sanctions defense lawyer who is familiar with handling federal cases is a must.

5. They Should Appreciate the Damage You Can Suffer to Your Company’s Reputation

Violating U.S. economic sanctions can lead to millions of dollars in fines and decades in prison for responsible executives. However, for the company that violated OFAC sanctions laws, it is the blow to its reputation that may have the most significant impact in the long run.

A lawyer who understands and appreciates that fact is likely to achieve a better outcome for your company than one that does not.

6. They Should Have a Track Record of Success in Similar Cases

There is no replacement for experience and a past record of successful OFAC defenses. While prior cases do not guarantee a similar outcome in your own – there are simply too many variables between OFAC cases – they do indicate that a lawyer knows what he or she is doing.

Unfortunately, it can be difficult to gauge the success of an OFAC lawyer because it can be difficult to compare your needs and circumstances to the attorney’s prior clients. Precisely because a company’s reputation is on the line, most companies that hire an OFAC defense attorney will forbid them from divulging too many details about their case later on in the attorney’s accolades.

While understandable, this can make it difficult to reliably judge an OFAC attorney’s past.

7. Experience in International Business is Important, Particularly in the Region at Issue

Because OFAC cases are generally resolved in a negotiated settlement, there is little evidence or information that is irrelevant. This includes the local business atmosphere in the area of the world where the alleged violations took place. In some cases, this can be an exonerating or at least a mitigating factor. Having an OFAC sanctions defense lawyer who understands how things work in the area of the world at issue can make a big difference in the outcome of a case.

Frequently Asked Questions About OFAC Sanctions Law and The Criminal Defense Firm

What are the Potential Penalties of a Violation?

It will depend on how OFAC pursues the case.

If they think that the violation was willful, they can pursue criminal charges that carry huge monetary fines, as well as a maximum prison sentence of 30 years. The amount of the fine will depend on the specific statute that was allegedly violated. However, most of the import/export laws that OFAC enforces impose a significant fine per violation. Each business transaction that was deemed to be in violation of OFAC sanctions will be subject to a fine. In this way, the financial repercussions can mount up very quickly.

Unintentional violations of OFAC sanctions can lead to civil cases. While prison time is off the table, the financial repercussions can still be huge.

For many companies, though, it is the hit to their reputation and business brand that proves to be the longest-lasting and most severe outcome of an OFAC investigation. Getting caught trading with America’s enemies is not something that many companies can survive.

What is a 'Financial Institution' Under OFAC Law?

Financial institutions have more legal obligations to uphold when it comes to the laws that OFAC enforces. This is because they often operate between the sanction’s target and the target’s business associates, and because the financial institution is where many of the target’s assets are held.

However, what amounts to a “financial institution” is broader than many company stakeholders may realize. Under 31 C.F.R. § 561.309, the distinction hinges on companies that hold money, broker loans, or make purchases or sales on behalf of someone else. Under this regulation, this includes some things that are obviously a “financial institution,” like a bank or a credit union. However, it also includes other types of businesses, like securities broker-dealers and insurance companies.

If your company falls within this definition, your OFAC compliance obligations become far more onerous.

What Sets The Criminal Defense Firm Apart from Other OFAC Sanctions Defense Firms?

There are numerous things that set The Criminal Defense Firm apart from other OFAC defense attorneys.

Most importantly, it is the experience of our lawyers and investigators. All of them have many years of handling sensitive white collar cases like these, including years of experience working within federal law enforcement agencies such as OFAC, the Federal Bureau of Investigation (FBI), or the Department of Justice (DOJ).

However, unlike at other firms, these are the same lawyers and investigators who will actually be working on your case. Many other law firms attract clients by touting the extensive experience of their partners, only to delegate the work on their clients’ cases to junior associates and paralegals. In many cases, the client never sees the lawyer that brought them to the firm until the case is about to get resolved.

The Criminal Defense Firm cannot delegate your case to newly-minted lawyers or to paralegals because we do not have any in our law offices. All of the work that gets done on your case will be performed by the lawyers whose experience attracted you to The Criminal Defense Firm. We think that is the least we can do.

Why Don't You Call Yourselves the Best OFAC Sanctions Lawyers?

We don’t like to hype our firm like that. However, many of our clients have left testimonials to that effect.

The Criminal Defense Firm: National OFAC Sanctions Defense Lawyers

Call The Criminal Defense Firm at (866) 603-4540 or contact them online to get an effective OFAC sanctions defense lawyer on your side.

Dallas 214-817-2053
Houston 713-454-7814
Detroit 313-634-0925
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Nationwide 866-603-4540