Six Keys to Picking a Knowledgeable OFAC Sanctions Defense Lawyer - Federal Lawyer
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Six Keys to Picking a Knowledgeable OFAC Sanctions Defense Lawyer

OFAC Sanctions Defense Lawyer

Hiring a lawyer to handle an investigation by the Office of Foreign Assets Control (OFAC) at the U.S. Department of Treasury is stressful. Worse, company stakeholders often have to make a decision very quickly. OFAC moves fast to plug up holes in the economic sanctions that it enforces on foreign parties.

If your company is under investigation or is facing the possibility of a legal enforcement action from OFAC for allegedly violating U.S. sanctions, you will need an OFAC sanctions defense lawyer to guide you through the process and protect your company’s interests. Here are six keys to choosing the best one for your needs.

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Dr. Nick Oberheiden
Dr. Nick Oberheiden

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Lynette S. Byrd

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Joe Brown

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John W. Sellers

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Linda Julin McNamara

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Aaron L. Wiley

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Roger Bach

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Chris J. Quick

Former Special Agent (FBI & IRS-CI)

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Michael S. Koslow

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Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

1. Success in Negotiations Outside the Courtroom

To the surprise of many company decision makers and stakeholders, one of the most important things to remember when hiring an OFAC lawyer to defend the business is that out-of-court negotiations are where most of the defense work is done in these cases. OFAC cases rarely go to trial, mainly because companies prioritize avoiding the reputational harm that a public trial for evading U.S. economic sanctions would bring to the company.

These out-of-court discussions are tricky, in part because OFAC knows it has leverage over a company that wants to keep the investigation quiet. However, the agency is also very open to negotiated resolutions that would stop the sanctions violation. That is, after all, their primary goal.

Having an OFAC lawyer who is not just open to resolving the case without a trial, but who has a track record of doing so, is key.

2. An Understanding that Reputational Harm Can Ruin Your Company

On a similar note, it is key to find an OFAC defense lawyer who knows that your company’s reputation is on the line. Many defense lawyers focus on the legal consequences of a conviction or a finding of civil liability. For large, established, and successful companies, though, those legal penalties may not even be the worst part of the outcome.

This is particularly true when the investigation is conducted by OFAC and in relation to U.S. economic sanctions.

The U.S. does not just sanction foreign individuals and organizations for laughs. Targets of economic embargoes generally pose a significant risk to national security or to U.S. interests abroad. They are often sanctioned because they have declared themselves to be enemies of the United States, have attacked Americans, operate as terrorist organizations, or destabilize the regions in which they operate. Getting accused of trading with one of these types of parties can tarnish any company’s reputation. Having a lawyer defend your company that understands the severity of letting the allegations reach the public’s eye is essential for a full and effective defense.

3. Experience in Your Particular Industry

An underappreciated key to successfully choosing the best OFAC defense lawyer for your company is to get one that is familiar with your industry. For example, if your company is a financial institution, you will generally be better off with an OFAC defense lawyer who has experience in representing other financial institutions before the agency’s investigators and enforcement actions.

While this experience within your company’s specific sector is more important when you are looking for an OFAC compliance team, it can still help your OFAC defense lawyer. As Dr. Nick Oberheiden, an OFAC defense attorney and founding partner of the national defense law firm Oberheiden P.C., says, “Each company is exposed to unique legal risks, though the risks become more similar as the companies become more like one another. An OFAC defense lawyer who has helped companies that are similar to your own challenge allegations of violating U.S. sanctions is more likely to understand whether a particular line of defense exposes the company to other legal threats than a defense attorney who has never operated in your sector.”

4. Experience in the Geographical Region at Issue

Another key to choosing a good OFAC defense lawyer for your needs is to find one who has handled cases stemming from the particular corner of the world that created your case. A familiarity with the region, as well as the culture and the language of the people who live in it, can prove to be invaluable in raising effective legal defenses against the allegations being pressed against your business. For example, it can give your lawyer the knowledge necessary to raise significant doubts about whether your compliance efforts could ever have spotted that it was no longer dealing with a trusted business partner, but with an intermediary for a sanctioned individual instead.

5. A History of Successful OFAC Defenses

One of the most obvious keys to choosing a good OFAC sanctions lawyer, though, is to look for one with a long history of success defending companies against OFAC investigations and allegations.

There is no replacing experience and success.

However, you still need to remember that prior success does not automatically ensure a successful outcome in your case. Every situation is different, and even the concept of a “successful” defense can vary by client: Some may unreasonably demand a complete acquittal without any ramifications, even though the case against them is fairly strong.

6. A Track Record of Success in Federal Court

At the very least, though, your OFAC sanctions defense attorney should have a record of strong defenses in federal court. OFAC cases go through the federal justice system, not a state’s system. This means that the investigators and the prosecution team will have access to the resources of the federal government rather than just those of a state or county prosecutor.

This makes a huge difference.

OFAC defense lawyers who are not accustomed to being in federal court often underestimate the amount of time and attention that it takes to build a strong defense against the kinds of detailed and exceptionally thorough investigations that federal law enforcement agencies, like OFAC, can put together. That lack of familiarity can hurt your company if your OFAC defense lawyer gets overwhelmed by the quality of the case that OFAC has presented.

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