This week it is our pleasure to share with you our interview of Sandra Hanna. Sandra Hanna is a founding partner at Bruch Hanna LLP, where she represents companies and individuals in civil, criminal and regulatory matters, including investigations by the Securities and Exchange Commission, Department of Justice, FINRA, and various other state and federal agencies. Sandra is recognized as a nationwide leader in securities enforcement matters in the 2014-2020 editions of Chambers USA. Prior to co-founding her firm, she worked at a number of large nationally recognized law firms.
You recently hosted a Zoom Conference for over seventy members of the Women’s White Collar Defense Association (WWCDA) focused on the Securities and Exchange Commission (SEC) new practice of interviewing individuals by video. How did this idea come about and grow so quickly?
I am an SEC enforcement specialist, so I spent a lot of time in the first few weeks of quarantine talking to colleagues in the defense bar and at the Commission about issues arising from online testimony or interviews. I’ve been particularly concerned about when we cannot be in the same room as our clients.
Of course, long before COVID-19, the WWCDA listserv has served as an incredible place to ask questions and compare notes with colleagues. One afternoon, a few weeks into the quarantine, a member asked a question about the logistics of online SEC testimony. A few minutes later, another member asked a related question, and then there was another and another. I was already knee-deep in thinking and talking about these issues, and so offered to a host a Zoom call.
I’m still amazed at the response. Within 10 minutes of my offer, dozens of women said they wanted to join and the next afternoon, 76 women joined my video conference. It was still in the early days of quarantine, and not all of us had quite figured out where we could find a quiet spot in our homes. There were women on laptops in their cars, women walking the dogs, kids in laps, cats on laptops – it was great. I have since talked to maybe a dozen other women who missed the call, and it has been wonderful to virtually meet so many in our network in the midst of these challenging times.
What are some of the issues relating to the SEC interviewing individuals by video? What should lawyers representing individuals before the SEC be contemplating now with respect to SEC interviews by video?
There are so many things to consider in assessing whether or not to agree to video testimony, particularly for clients who could be something other than pure fact witnesses. My own view is that such testimony should not happen, except in very limited circumstances.
Of course, your strategy flows from the needs of the client. Is the client a cooperator? Is there a reward for moving swiftly and providing information, or a penalty for not doing so? On the other hand, is your client likely to get a Wells call or be sued by the SEC, regardless of her testimonial evidence? Is the passage of time a good thing or a bad thing for your client?
Much of our value as defense lawyers occurs when we challenge our clients in preparation for testimony. It is very difficult to be hard on a client and to confront them with difficult facts or contradicting information without being in the room with them for long hours. In my experience, doing that work by Zoom is just not the same. Preparation is the key to a client’s successful testimony and results in a more accurate record for the government, too. Also, it is sometimes very easy for a skilled questioner to throw off even the most well-prepared client. And it is much harder for defense counsel to intervene and help correct such issues when we’re not in the same room as our client. The consequences of client misstatements can be prosecutable criminal offenses, or regulatory sanctions for failure to cooperate, so the stakes are enormous for interviews and testimony.
I would work hard to explore options other than video testimony with the Staff. There are many other ways to give the government the facts it needs to continue an investigation without exposing your client to video testimony. Attorney proffers, for instance, can further an investigation, as long as you personally can assure yourself of the veracity of the information you are providing. Written submissions such as whitepapers or other pre-Wells submissions can help, too.
So much of an examiner’s view of a witness is formed by intangible things – is your client looking the questioner in the eye, does she appear cooperative, is she fidgeting, or otherwise being evasive? These “soft” things are all critical in testimony and become very difficult to manage when your client is in their basement with the dogs barking and kids crying. And you cannot get a second chance to make that critical first impression.
If you must go forward with video testimony, here are some things to consider:
- Prep for testimony even more than you would in person.
- Ensure your client’s technology works well.
- Consider texting or FaceTime or some other way to communicate with your client live during the testimony.
- Ask for the documents in advance.
- Confirm that the testimony is not being recorded and that you will have the opportunity to review and correct the transcript, if necessary.
You started your own firm with a partner in 2013 focused on defending SEC and DOJ investigations. What has your experience been in leaving big law and opening your own shop? What advice would you give to a lawyer contemplating opening their own firm?
We started Bruch Hanna LLP almost seven years ago, and it has been an amazing experience. Representing companies and individuals in government investigations remains the core of our practice. However, our practice has broadened as we have been able to serve as Corporate Monitors, as counsel to Audit Committees and special committees, and to take on certain kinds of matters that we would have previously been conflicted out of.
I am very proud of the fact that my partner, Greg Bruch, and I are the only boutique firm lawyers on the Chambers list for SEC Enforcement matters. I am even more proud of the fact that we have been able to execute on our vision for diversity. Right now, our associates are all women, including two women of color. This is a result of design, not luck or happenstance.
If you are thinking about starting your own firm, remember that in addition to all of the great cases you are going to have, you are also a small business owner. You will learn about copier leases and payroll providers and health insurance and 401ks. Do not underestimate how much of your time you will spend on those routine business things or how challenging they can be.
What do you think it takes to make it in private practice? Is the advice different for a woman?
Big question! Private practice takes continuous and sustained effort, and it helps to take the long view of things. Careers are made over the course of your professional lifetime, not because you spoke on a single panel or wrote one article. The best advice I received is pretty simple – show up, every day, and always put the client’s needs first. Over time, clients and the lawyers you work with (at your firm and others) will recognize your sustained effort and reward you for it.
Also, you really have to become an expert in what you do and should try to learn something every day. You cannot be great at this if you are a casual observer of our industry. For example, if your focus is the SEC, then you better read all of the Commission’s releases, across the agency, every day. What the Division of Corporation Finance says today will be tomorrow’s enforcement action. If you understand the priorities of the Office of Compliance, Inspections and Examinations, you will become a much better defense lawyer. If you only read settled enforcement matters, you are not going to be an expert in your field.
I think women still need to work harder at this than men do, though I am thankfully seeing some changes as women increasingly become buyers of legal services, instead of just sellers. It is more important than ever for our younger women to have mentors, and to prove themselves indispensable to clients and colleagues. I may be old-school, but you need to be the most knowledgeable and dedicated person on the team, always.
You graduated from Georgetown University with both a J.D. and an MBA. How does having an M.B.A. enhance your legal practice?
It has been very useful to me, though I do not think you need an MBA to develop the skillset I learned in school. My accounting classes have been helpful and knowing how to use Excel is a surprising benefit sometimes. But more importantly, business school taught me that you have to understand your client’s entire business, not just the narrow portion of it that is the subject of an investigation. Read and understand the financial statements and periodic reports, read analyst reports, listen to earnings calls and dig deep in chatrooms to understand what investors think about the company. All of that information is critical in representing clients effectively.
How has COVID-19 affected your practice? Do you believe that it will create lasting changes for lawyers and law firms moving forward?
Obviously, we are all working from home for the foreseeable future. While I believe my firm – which has the good fortune of spacious offices where social distancing is possible – can technically “open” soon, I suspect it is going to be a long time before we have anything resembling normal operations. Safe childcare, for instance, is going to be a significant barrier to reentry for many parents. Public transportation will also be a challenge.
The good news is that technology has changed everything (notwithstanding that I still prefer binders to electronic documents). We recently completed an overseas internal investigation with a tight deadline entirely online. While nothing beats in-person, I suspect that we all will be doing more of this type of thing for years to come.
Can you tell me something about yourself that very few people know?
Before I became a lawyer, I managed professional musicians. They were some of the toughest (and most rewarding) clients I’ve ever had!