Social media has changed the way we communicate permanently. I have often written and spoken about the use of social media in a compliance program as an effective way to communicate up and down the chain. Of course the use of social media is limited only by the imagination of the person employing this tool, so what about using social media if you are individually charged with a FCPA violation.
I thought about all of this around the rise and fall and continued media cycles surrounding former pharmaceutical executive Martin Shkreli. Shkreli was well known prior to his recent arrest on federal securities fraud charges for his communications via social media. He regularly tweeted, posted, and streamed videos through YouTube and other social media tools. Perhaps not too surprisingly, Shkreli has continued this path after his arrest.
While Shkreli is certainly not unique in continued use of social media after an arrest, he is one of the highest profile criminally charged and his communications have furthered the debate from both PR professionals and white-collar defense lawyers about the wisdom of this strategy. A New York Times article reported Shkreli has posted videos of himself “as if the possibility of going to prison were just a bump in the road.”
Yet the same article reported that white-collar defense lawyers cautioned against the approach. One white-collar practitioner, Gregory Morvillo, was quoted as saying that “having a client who posts on Twitter is a 'recipe for disaster.'” Another lawyer, Marc Agnifilo, was quoted that clients who post on social media to defend themselves, “can feel good about it at the time” but that it also “has the potential to undermine plea negotiations that might be taking place.” It also can certainly have deleterious effect on a judge who might be listening to evidence on remorse at a sentencing hearing. It also has the clear hazard of being used on cross-examination by a savvy prosecutor.
Most interestingly is that Shkreli’s lawyers at the firm of Arnold & Porter are the ones keeping their mouths shut as, according to the WSJ article, “as repeatedly declined to comment on the charges against Mr. Shkreli.” So the white-collar practitioner, who may be asked to defend an executive charged with FCPA violations under the Justice Department’s new policy announced in the Yates Memo may have another worry on his hands: the corporate executive who wants to announce to the world how innocent he is and how wrong the government is, right up until the time he has to face the evidence against him.