Counsel should be engaged at the earliest possible opportunity, preferably before the government has begun an investigation.
This is a question we are often asked. Some people prefer to delay hiring an experienced white-collar defense attorney until the last possible moment and will often engage with government agents without counsel in an effort to save money or because they do not understand the seriousness of a government investigation. Failing to retain counsel at the earliest possible opportunity is a grave mistake.
We are often retained by companies or individuals when they suspect that one of their employees may have violated the law. In these cases, it is our practice to investigate the possible violations, determine whether a violation has, in fact, occurred, recommend remedial action, and, depending on the direction of the client, self-report the violation. Remedial actions usually involve adopting or enhancing compliance procedures, mitigating any financial damage caused to a victim, disciplining people responsible for the violation, educating employees as to compliance responsibility, etc.; but each case is different. A cookie-cutter approach will most likely fail.
In many cases, however, an individual or a company may not suspect criminal activity within the company. The reality, however, is that there are over 4,450 federal felonies, not counting administrative crimes, as well as potential violations of the laws of various states. Not all of these crimes are intuitive. Whenever a company becomes aware of a potential criminal violation, it is time to retain experienced white-collar counsel.
There are three events that signal the need to counsel immediately. The first is the execution of a search warrant. If federal agents arrive at a place of business to conduct a search, the most important thing to do is step aside and allow the agents to conduct their search. At the same time, it is important to call experienced white-collar counsel who can then interact with the agents and begin building a defense. The client should not talk to the agents if counsel is not present.
The second event that should trigger a call to experienced white-collar criminal defense counsel is a “visit” by a federal agent. Again, it is important that experienced white-collar defense counsel be contacted before any interview is conducted. It should be the attorney’s job to interact with agents and ascertain the seriousness of the conduct being conducted. The same rule applies to an agent who simply shows up and wants to see some documents. Any interaction with authorities should be conducted through counsel.
The third time a white-collar defense counsel should be called is when a company or company employee receives a grand jury subpoena. Often times, the subpoena itself will require the production of business records, emails, memoranda, or other records. All materials turned over to the government should be reviewed by counsel before they are turned over to the government. There are several reasons for this advice. First, the records should be reviewed to ensure that privileged or protected information is not disclosed. Oftentimes, a subpoena will be overbroad, and counsel may wish to narrow or quash the subpoena. Importantly, the fact that a grand jury is looking into a matter is an indication that the government suspects criminal activity. It is an excellent opportunity for white-collar counsel to head off an investigation or to begin building a defense.