The Basic Client-Agent Interaction
Let’s start with the most basic concept. Outside of the grand jury environment, citizens are generally under no obligation to speak to federal agents or prosecutors in response to substantive questioning. And what your client says can certainly hurt him or her.
Government agents often speak to subjects or targets of investigations in order to box them in. The interviewing agent typically has detailed knowledge of the facts being investigated. The agent’s goal is to have the client admit to damaging facts or utter a false exculpatory statement. The admission can obviously be used against your client to prove his or her involvement in a crime. A false material statement to an agent is itself a crime. Either answer has the potential to expose your client to federal criminal charges. And the client is usually alone during the interview. Agents work in pairs and later prepare an interview report. In a dispute between agents and your client over what was said during an interview, guess who will win?
Thus, it is crucial to educate the client that literally anything substantive he or she says can be used against him or her. Here is an example: An IRS Criminal Investigation Division (CID) agent investigating an offshore tax fraud scheme involving the Acme Corporation visits your client’s home and hands her an administrative summons requesting documents from Acme. The client looks over the subpoena and says: “Thank you. I don’t want to talk to you, but I’ll cooperate and get you the documents by the return date.” What’s the problem here? The client is in no way associated with Acme Corporation in any public filings. By answering in this fashion she has admitted her knowledge of and association with a company at the heart of an offshore tax fraud scheme.
So is it safe for the citizen to remain completely silent or to simply say “I refuse to speak with you” to a law enforcement agent? No! Why not? Because silence can be construed as an admission, in the absence of custodial interrogation. Take the following scenario. FBI special agent: “You are not in custody. You can kick us out of your office at any time. We’d like to talk to you about some loans you made to your brother-in-law’s businesses when you were president of First Main Bank. Why didn’t you tell the board of directors that you had a secret interest in these ventures?” Client: [Dead silence.] Silence in the face of such an accusation can be construed as an admission of guilt.
What should the client be instructed to do? Generally speaking, the safest course of action for a client facing a federal law enforcement agent who wants to question him or her is to reference his or her attorney and to refuse to speak in the attorney’s absence. Why is this the preferred approach? Because it is virtually unheard of for federal criminal trial courts to admit into evidence a client’s statement that he or she wants to speak to an attorney or will not answer questions in the absence of an attorney.
What is the preferred method of referencing/invoking the attorney in this context? While no two cases are alike, it is usually safe to say something along the lines of: “I would like to have my attorney present before I speak to you,” or “I want to consult my attorney first,” or “Upon advice of counsel, I will not speak to you without my attorney present.” The client should ask for the agent’s card and then consult the client’s attorney immediately after the agent has left.
Occasionally, I have had agents persist even after the attorney is invoked. A favorite agent line is: “What do you need an attorney for?” The client must be educated not to take this bait. Again, the preferred response is: “I’m sorry, but my attorney has instructed me not to speak in his absence.” The client must at all costs avoid the temptation to get into substance.
The Search Context
Questioning employees during the course of a white-collar search poses particularly dangerous problems. Government agents may segregate but may not detain employees during the course of such a search. This situation is ripe for abuse, however, because agents are under no obligation to point this rule out to the business employees who have already been segregated and, as a consequence, often feel compelled to talk.
Thus, employees are often questioned during the course of a search. If you represent the company, proactive planning and/or quick responses are a must. Sometimes the company will know ahead of time that it is being investigated and that a search is possible. In such circumstances, the company should have a written protocol in place. Employees can be instructed as part of that protocol that they are free to speak with government agents but are under no obligation to do so. They can also be instructed that the company will provide an attorney for them at company expense.
As a general rule, employees can’t be ordered not to speak with government agents, and it is quite dangerous to do so, although the company has a right to prevent employees from revealing some confidential information, including information protected by the attorney-client privilege. The attorney should consult the rules of the jurisdiction in question before advising the client as this is an area fraught with dangers for the client and practitioner alike.
Often the company will not know ahead of time that a search is planned. In such situations, the attorney should arrive on the scene as soon as possible and provide advice regarding the client and its employees. The basic rule is that the search cannot be obstructed in any fashion but that employees are under no obligation to remain on site or submit to substantive interviews with the government agents conducting the search.
The Grand Jury Context
Federal law enforcement agents delivering grand jury subpoenas will often try to get your client to talk to them in the course of delivering the subpoena. The same rules as those discussed above apply. Your client should advise the agent that he or she needs to consult his or her attorney first.
Get the subpoena from your client as soon as possible. If it is a standard federal grand jury subpoena, it will list the name of the responsible assistant United States attorney (AUSA) or other Department of Justice (DOJ) prosecutor. Call that prosecutor as soon as possible. In the white-collar context, the prosecutor will usually reveal something about his or her inquiry, as well as whether your client (either company or individual) is a witness, subject, or target. Such status is an important thing to know, but ultimately provides no protection because the prosecutor can alter such status at any time.
It is important to determine whether the subpoena is testimonial, duces tecum (calling for documents), or both. If it is simply a document subpoena, lay out the ground rules for production with the prosecutor and try to narrow the scope of the subpoena in writing, after discussions with the client.
If possible, arrange for the client to deliver the documents by mail, Fed Ex, or courier rather than delivering them in person to the grand jury and being subject to questioning. A federal grand jury subpoena will typically suggest such an arrangement for the convenience of the prosecutor. You will want to avail yourself of this procedure if you represent the company. Because an entity has no Fifth Amendment privilege against self-incrimination, a custodial witness personally returning documents to the grand jury—present in his or her capacity as an agent for the company—can be forced to answer some questions pertaining to the production. This should be avoided at all costs, as the client’s attorney cannot be in the grand jury room while the questioning is going on.
Of course, individuals do have a privilege against self-incrimination, and the privilege is quite broad in the grand jury context—broader than most people realize. Any answer that even tends to incriminate a witness, including a link in a very long evidentiary chain, can justify invocation of the privilege. Thus, while federal grand juries enjoy broad powers and their subpoenas are almost impossible to quash, the government is essentially powerless to fight an individual’s good faith invocation of the privilege against self-incrimination. The white-collar attorney representing a business employee should always keep this in mind and vigilantly protect the client when necessary.
The DOJ is currently in the midst of a historically aggressive period of white-collar law enforcement. It is more important than ever for corporate and white-collar attorneys to fully understand, and educate the client regarding, the rules governing law enforcement questioning of clients in all contexts of client–law enforcement interaction. Failure to understand the basic ground rules can result in disastrous consequences for the client.
Keywords: environmental litigation, white-collar investigation, noncustodial questioning, search protocol, grand jury subpoena, Fifth Amendment privilege against self-incrimination
Solomon L. Wisenberg is a partner in Nelson Mullins's Washington, D.C., office.