Companies and the people that run them can face criminal liability for violating American economic sanctions on other countries and foreign parties. The U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) enforces these embargoes. Generally speaking, you should only deal with members of this agency with your lawyer on hand. However, choosing an OFAC sanctions lawyer is not a simple or straightforward affair.
Here are seven things that Dr. Nick Oberheiden, founding partner of the national law firm Oberheiden P.C. and an OFAC sanctions attorney, thinks should be important when you consider who to choose to be your lawyer to represent you in front of the Office of Foreign Assets Control.
1. Experience in Federal Court
OFAC sanction cases are heard in federal court. Most lawyers, however, focus their practice in state court.
The difference between state and federal court is not small.
Most importantly, federal cases are investigated and prosecuted by federal law enforcement agencies, such as the Office of Foreign Assets Control. State cases are investigated and prosecuted by the state’s attorney general’s office or the local district attorney’s office. These state and local offices have only a fraction of the manpower and resources that a federal agency has at its disposal. When the competition is so much stronger, you need a lawyer who is accustomed to facing it.
2. Familiar With Your Type of Business
Lots of different types of businesses can face Office of Foreign Assets Control scrutiny or formal allegations that they are violating OFAC sanctions. The particular legal risks that a company can be exposed to will vary widely depending on the type of business that it conducts. For example, international oil or gas companies will interact with OFAC-enforced sanction laws in extremely different ways than a financial institution like a bank or a credit union will.
This makes it very important to not just have an OFAC lawyer on your side, but an OFAC lawyer who is familiar with your type of business or industry.
When searching for an OFAC regulations compliance or sanctions defense attorney, make sure to get information about his or her prior clients. If you see companies that resemble your own, you can rest assured that the lawyer will have a good understanding of your needs and concerns.
3. Understands OFAC, But Also Other Related Laws
International sanctions laws stand at the intersection of several other fields of business law. Having an OFAC lawyer who does not have a firm grasp of those other laws and how they can also imperil your company is of limited value. Just a few of the other international sanctions regulations and sanctions compliance laws that an Office of Foreign Assets Control attorney should be familiar with include the:
Foreign Narcotics Kingpin Designation Act
Iran Threat Reduction and Syria Human Rights Act of 2012
Trading with the Enemy Act of 1917
Additionally, there are numerous other import and export laws that need to be navigated, as well.
4. Provides the Type of Service You Need
Companies can interact with the economic and trade sanctions laws enforced by OFAC in several different ways. Each of them requires a different type of legal representation.
First, there is OFAC compliance, where an attorney will take the necessary steps to assess your company’s risks of OFAC violations and create the mechanisms that are the most likely to reduce those risks without overburdening your business.
Second, there is OFAC guidance, where an OFAC lawyer will advance your company’s interests by engaging with the agency, such as by challenging your company’s designation as a target for trade and economic sanctions or by requesting a OFAC licensing to conduct business with a sanctioned company.
Finally, there is OFAC defense. This is when your company has learned that it is under investigation for a potential violation of economic sanctions and you need a defense lawyer to protect the company from legal jeopardy and potential OFAC enforcement penalties.
Not all firms are equally adept at each. Some may not even offer one of these types of services.
5. International Experience
OFAC sanctioning law is, by its very nature, international in scope. America imposes OFAC sanctions on foreign individuals and companies to protect its national security and interests abroad. OFAC lawyers who do not have at least some experience with foreign countries tend to struggle with issues like the language and culture of the company’s foreign business partners.
Dr. Nick Oberheiden, the founding partner of the OFAC compliance and defense law firm Oberheiden P.C., often tells potential clients, “Ideally, your OFAC lawyer will have experience handling international business issues – preferably OFAC issues – in the country or at least the region where your company operates or where it faces its most significant legal threats under economic sanction law.”
6. Able to Provide Ongoing Representation
Unless you are strictly looking for an Office of Foreign Assets Control (OFAC) defense attorney to fend off an allegation that your company violated sanctions law, you are likely going to need ongoing legal counsel and representation. Even if your needs are currently restricted to protecting the company during an OFAC investigation or defending it against a civil or criminal charge in court, the fact that things have escalated so much indicates that your company’s compliance mechanisms may need to be revisited, in which case you still need ongoing legal help.
Getting a lawyer or OFAC law firm that can provide representation not just now but in the future as well should be one of your priorities. If it is not, there is a non-insignificant chance that you will have to go through the whole process of finding another knowledgeable OFAC lawyer to handle more issues in the near future.
7. Experience With OFAC Compliance Mechanisms
While sanctions compliance and OFAC defense are two different types of services that an OFAC lawyer can provide, it is essential that he or she be experienced in both. Lessons learned in compliance can enhance an attorney’s effectiveness when defending a company against allegations of wrongdoing, while lessons learned while defending a company can make the OFAC regulations compliance recommendations that an OFAC lawyer makes even stronger. Hiring an OFAC lawyer who has done both defense and compliance in the past is likely going to be your best bet.