Cooperation done right: Making your client’s cooperation substantial

The importance of adequately preparing a client to effectively cooperate with the government is illustrated by the recent fifty percent sentencing reduction granted to Dr. Michael Ligotti by Judge Ruiz in the Southern District of Florida. U.S. v. Michael Ligotti, 9:20-cr-80092. Ligotti had pled guilty to one count of conspiracy to commit healthcare and wire fraud in October 2022 for his role as the medical director for addiction treatment facilities that were paid kickbacks by testing labs performing hundreds of millions of dollars’ worth of unnecessary urinalysis. Ligotti cooperated extensively with the government in their prosecution of his co-conspirators, ultimately testifying at trial and helping the government to secure several convictions. As a result of his substantial cooperation Ligotti’s sentence was reduced from 240 months to 120 months. This is a very significant departure.

Given that over 98% of all federal cases end in plea bargains, and that most pleading Defendants seek to reduce their sentences through cooperation, prudent attorneys work closely with clients to prepare them for successful cooperation well in advance of their first meeting with the government. Indeed, such preparation should begin as soon as cooperation is explored.

Notably, at Ligotti’s Rule 35 motion hearing, AUSA James V. Hayes told the Sentencing Court that he was surprised at the level of remorse and commitment to cooperation Ligotti had shown. (Apparently a 20-year sentencing is motivating). However, the take-away is that remorse and candor go a long way with both prosecutors and the Court, as do convictions that result from a Defendant’s successful cooperation.

As most practitioners have experienced, Defendants are initially reluctant to be candid about their own culpability in criminal cases. For this reason, a Defendant who is not prepared to fully admit their own culpability can irreparably harm their ability to provide substantial cooperation. A Defendant who is not fully forthright about their own conduct from the start is not a good witness for the government against others. It is accordingly counsel’s responsibility to take their client through the process of confronting their own culpability before the client meets with the government. A client who plans to meet with the government to prove they are not guilty is 1) doomed to fail at that goal, 2) doomed to destroy any hope of successfully cooperating, and 3) doomed.

Remember, cooperating defendants generally get one chance to make a good impression and set the stage for successful cooperation. It is important to spend sufficient time refreshing a client’s memory of events prior to meeting with the government. The government will want to sense from the beginning that a client is a reliable source of information and will be effective and credible at trial. Most of the time, the events at issue occurred years before the government’s investigation so it is essential to spend time reviewing documents, emails, text messages, etc. to help a client to recall salient facts prior to the first meeting with the government. 

The best cooperators bring previously unknown information and documents to the government.  Counsel can and must help clients to gather and provide such information. To provide truly substantial cooperation, a witness should be able to do more than just confirm facts already known to the government.

It is also best practice to ask the government for a list of topics and individuals of particular interest in advance of each meeting. The government is often hesitant to share such documents and information, but it is important to remind the government that adequate preparation for the meeting is important to successful cooperation, which will only inure to the government’s benefit.  Sometimes this helps motivate the government to provide better guidance. At a minimum, the government should be willing to give an overview of salient talking points.

There is an unspoken rule that if a Defendant is likeable, it is more likely that the government will want their cooperation to be successful. A Judge will sense the relationship and reward it. A defiant client does not help themselves in this regard. Ensuring that a client is truly prepared to be candid, honest, and open with the government in advance of the first meeting is an important piece of fostering an amicable relationship. Becoming a member of Team USA should be every cooperating client’s goal. Certainly, this is what enabled Dr. Ligotti to receive the glowing accolades that led to the government’s generous recommendation and the Judge’s ultimately more generous sentence reduction.

Ultimately, it is not by accident that some cooperating Defendants are more successful than others. A skillful defense attorney is an integral part of creating the conditions necessary for successful cooperation and should always work closely with their clients to prepare them for success. It’s apparent that Dr. Ligotti was well prepared, and emotionally and factually ready to assist the government. The results he received speak for themselves.