What to Know Before You Hire an OFAC Sanctions Attorney
Violating Office of Foreign Assets Control (OFAC) sanctions can have severe consequences. When prosecuted as a civil offense, OFAC sanction violations can carry fines ranging from tens of thousands to millions of dollars per violation. When prosecuted as a criminal offense, OFAC sanction violations can carry million-dollar fines and up to 20 years of federal imprisonment. As a result, it is critical to engage defense counsel promptly, but you also need to know that your defense counsel is up to the task.
So, how do you choose an OFAC sanctions attorney? When choosing counsel for OFAC sanctions defense, there are several important factors to consider. Here is an overview of what you will want to know before you choose an attorney to advise you and deal with OFAC on your (or your company’s or financial institution’s) behalf:
Does the Attorney Focus His or Her Practice in the Area of Federal Compliance and Defense?
First, you will want to choose an attorney who focuses his or her practice in the area of federal compliance and defense. This will help narrow your search, as relatively few attorneys focus on federal representation, and only a subset of these attorneys have experience in OFAC matters.
Since OFAC sanctions matters involve elements of both compliance and defense, you will likely want to choose an attorney who does not focus in either of these areas exclusively. Compliance knowledge can help to inform an effective defense strategy, while the insights gained from defending clients against allegations of OFAC sanction violations can be invaluable both when dealing with OFAC and when implementing new compliance protocols to avoid violations going forward.
Does the Attorney Have Specific Experience in the Areas of OFAC Compliance and Defense?
After narrowing your search to attorneys with federal practices, you will want to look specifically for an attorney who represents clients in the areas of OFAC compliance and defense. While federal practice is very different from state practice, representing clients in OFAC matters is an even smaller niche within the federal bar. When dealing with the potential consequences of an alleged OFAC sanction violation, relevant experience matters immensely, and you need counsel who can begin advising you and guiding you forward immediately.
Has the Attorney Represented Clients Before OFAC in Sanctions-Related Matters Previously?
This goes back to the previous point about choosing an attorney who handles both compliance and defense. While experience developing OFAC compliance programs can be invaluable when advising clients in connection with allegations of OFAC sanctions violations, it is equally important to have experience dealing with OFAC. Knowing how OFAC conducts its investigations, understanding OFAC’s enforcement priorities, and being able to draw insights from past outcomes are all vital to building and executing a strategic defense.
Does the Attorneys’ Firm Have the Personnel and Capabilities Required to Handle OFAC Sanctions Defense Effectively?
In many cases, effectively defending against allegations of OFAC sanction violations and implementing a compliance strategy going forward requires more than just one attorney. Instead, an effective approach requires a team of attorneys and consultants—all of whom are highly experienced in the areas of OFAC compliance and defense. OFAC sanctions matters can be highly complex, and working through everything that needs to be done in a timely manner requires multiple sets of hands on deck.
As a result, when choosing an OFAC sanctions attorney, it is important to research not only the attorney, but also his or her firm. Does the firm have the personnel and capabilities required to handle OFAC sanctions defense effectively? Is the firm staffed with attorneys and consultants who have relevant experience, and does the firm have the resources required to provide efficient remote representation if necessary?
Will You Be Able to Reach the Attorney Directly After Hours and On Weekends?
When you are facing serious allegations from OFAC, you do not have time to wait for a call or email response from your attorney. You need to be able to get in touch with your attorney directly, and you need to be able to do so 24/7. This is especially true if your attorney’s offices are on the other side of the country—or, if you are located abroad, on the other side of the world.
While OFAC’s attorneys and agents may only respond during business hours, developing and implementing an effective defense and compliance strategy can require working around the clock, especially during the initial stages of an OFAC inquiry. This is important to consider, and it is a topic that you will want to discuss during your initial consultation.
What Approach Will the Attorney Take to Your (or Your Company’s or Financial Institution’s) OFAC Sanctions Defense?
During your initial consultation, you will also want to discuss the attorney’s approach to your (or your company’s or financial institution’s) defense. You will want to make sure you are comfortable with this approach; and, here too, you should not hesitate to ask questions. While your OFAC sanctions attorney should take the lead, you should play an active role in the process, and you should feel confident in the direction of your strategy every step of the way.
What Results Has the Attorney Been Able to Achieve for Clients in Prior OFAC-Related Matters?
Finally, when engaging counsel for OFAC sanctions defense, you should also ask about the attorney’s results in prior OFAC-related matters. Was the attorney able to achieve favorable results for his or her clients while also maintaining a good working relationship with OFAC? Does the attorney have references you can contact to gain their independent perspectives? These are valid questions that you should not hesitate to ask as well—and that an experienced OFAC sanctions attorney should be more than happy to answer.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.