Something That Feels Like Justice

Staying up late with Mike Attanasio

Published in 2011 San Diego Super Lawyers — June 2011

Daniel Stulac, a star on the rise at accounting firm Arthur Andersen, was promoted to partner and appointed lead auditor for international software company Peregrine Systems Inc. in 2001.

Things went downhill fast.

His firm, of course, collapsed in the rubble of Enron. “No sooner had the dust settled from that, like, one-two, he got swept up into this investigation and his whole life turned upside down,” says Mike Attanasio, vice chair of Cooley LLP’s litigation department.

The investigation probed Peregrine Systems for falsely inflated financial statements.

“The real interesting part of the case,” says Attanasio, who represented Stulac, was “the decision to indict the outside auditor as an active participant in the fraud. To my knowledge, and no one has ever corrected me, [there hasn’t been] late Enron-era prosecution of an outside auditor from a Big Five accounting firm for participation in the fraud. That includes, by the way, Enron. … As bad as Enron was, none of the audit team nor the firm was ever alleged officially to have participated in fraudulent accounting.”

According to Attanasio, the prosecution now wanted to make that point. “They were very keen to prosecute not only those who had participated in the fraud, but any gatekeeper, such as an auditor, who allowed knowingly, in their view, for the fraud to happen,” he says. “We thought that was overreaching.”

Although a plea agreement was offered, Stulac chose trial. “I knew I was not guilty,” Stulac says. “I had full confidence in Mike. I had tremendous faith. It was very scary at first, but Mike helped me calm down quite a bit and really took the ball and helped me make some wise choices. Once we got to trial, it wasn’t scary at all.”

A three-month trial in 2007 ended in a hung jury with the majority of votes for acquittal; in 2008, a second trial ended in an evenly split jury.

 “At that point, the court entered a judgment dismissing the case and exonerating Daniel on all counts,” Attanasio says. “The max penalties were up to 30 years and the U.S. attorney’s office made it very clear that upon any conviction, they would seek as stiff a sentence as they could. So very serious business for us and for our client, who was very courageous and earnestly and truthfully proclaimed his innocence. It felt like justice, not to delve into cliché, but it felt like the right thing.”

“The right thing” is something Attanasio learned at an early age while watching his father, an agent for professional baseball players. “I learned a lot from how my dad treated his clients, the way he fought for his clients over things large and small,” he says. “The client always came first.”

For young Attanasio, wanting to be a baseball player was a no-brainer. “It wasn’t uncommon for players to stop in for dinner,” he says. “But wanting to be a baseball player only lasted until about 11 [years old]. In high school and college, I really enjoyed arguing and articulating why I was right about something. That gradually gravitated toward being a trial lawyer.”

Prior to landing at Cooley in 2004, Attansio spent nine years in Washington, D.C., in the Department of Justice’s Public Integrity Section. He’s currently a member of Roger Clemens’ defense team. The case, which centers on charges that Clemens lied to Congress in regard to the use of performance-enhancing drugs, is expected to go to trial in July.

In Attanasio’s white-collar criminal defense and complex business litigation practice, his clients know a thing or two about high stakes. “White-collar comes with the added factor of representing an individual whose freedom is at issue, and that is particularly attention-getting, when you think about your duty as a lawyer,” he says. “Frankly, that keeps me up at night.”

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