CORPORATE CRIME REPORTER
BraunHagey’s Mark Fickes Talks West Coast SEC Practice
25 Corporate Crime Reporter 34, September 6, 2011
Corporate crime enforcement tends to be East Coast centric.
But what if you are a former Securities and Exchange Commission (SEC) attorney now practicing in the private arena in San Francisco?
Don’t worry.
Corporate crime is booming on the West Coast too.
Mark Fickes is a partner at BraunHagey & Borden in San Francisco.
Isn’t there an inferiority complex on the West Coast among SEC practitioners?
“I don’t think so,” Fickes told Corporate Crime Reporter last week.
“There is quite a bit of white collar and corporate crime here on the West Coast,” he said.
“I hear what you are saying. There is that perception. But I wonder how much of that is due to the fact that these agencies are centered in New York and Washington.”
“DC may be the hub, but they are bringing cases everywhere.”
Fickes spent four years litigating insider trading and other cases out of the SEC’s San Francisco office.
Now he’s with BraunHagey & Bordern, a small San Francisco boutique firm.
Prior to joining the SEC, he spent some time at Wilson Sonsini. So, he knows big firms too.
“When I was preparing to leave the SEC, I was talking with some large firms, some medium firms – firms in the 250, 300 lawyer size – and then started talking with my colleague Noah BraunHagey about it.”
“And for a lot of reasons, I actually thought that being in a small firm would be ideal. There is a tremendous misconception in the legal market that only the big firms get the big cases or the good cases. And that’s just not true.”
“I worked for a boutique firm before at Gwynn Findlay. And now I’m working here at BraunHagey & Borden.”
“And small firms can be tremendously successful in getting great clients and cases. And that’s what attracted me to join BraunHagey.”
“I suppose you don’t have all the luxuries of a huge support staff. But my experience at Wilson Sonsini showed me that large law firms can be very bureaucratic and cumbersome as well.”
“Some of them can be very successful. But again, having spent a lot of time as a prosecutor, and working in bureaucracies, the opportunity to work in an environment where we can be a little bit more spontaneous and work outside the box is ultimately what persuaded me to come to BraunHagey.”
BraunHagey’s work isn’t exclusively defense side. In fact, Fickes says – the firm’s current work load is about half defense side, half plaintiffs’ side.
And Fickes sees tremendous benefit in being a former SEC lawyer.
“Much of the work the SEC does is investigations before it brings lawsuits,” Fickes said. “They just don’t sue on a lark. They devote a lot of time, energy and resources investigating.”
“Many people who have just civil or criminal litigation experience really don’t know how to interact with the agency in ways that serve their clients.”
“When you look at civil litigation in general, there is always lots of fighting over discovery, and whether or not you are going to turn over documents. There is a lengthy meet and confirm process, with motion to compel.”
“When the SEC is investigating and they try to compel documents, some lawyers do the usual – ‘I’m not going to give you anything, we will meet and confer and argue about the scope of these requests.’”
“That really does your client a disservice in the context of the investigation. It makes regulators suspicious when people are refusing to produce information.”
“And second, ultimately when enforcement actions are brought, a huge part of the analysis of what the remedies will be is the extent to which individuals cooperated during the course of the investigations.”
“My SEC background gives me familiarity about how to interact with the staff to best serve your client’s interest.”
“Sure, people come and go from the SEC. But from my experience, many defense lawyers mishandle the SEC staff during the investigation phase. And it makes it more expensive for the client if there is no action, because it just gets drawn out longer and longer.”
Fickes says that for the most part, lawyers who deal with the SEC are pretty sophisticated.
“In the kinds of cases I had, I’d say 70 percent of my cases were with people who were pretty sophisticated in dealing with the SEC staff,” Fickes said. “I can only speak from my own experience. So that means a good 30 to 33 percent were people who didn’t go about serving their clients’ interests by being forthcoming with the staff and dealing with the staff in an effective way.”
Does it help that you know people at the SEC?
“I do know people in San Francisco and Los Angeles,” he said. “I enjoyed a really good reputation in those offices. I’m perceived as someone who did good work for the agency and someone who is a straight shooter – that always helps. Again, also understanding how the agency works and who you need to talk to first – I do believe that is a big asset for a client.”
[For a complete transcript of the Interview with Mark Fickes, see 25 Corporate Crime Reporter 34(12), print edition only.]
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