What to do if your Client Learns of a Federal Criminal Investigation
You’re at your desk when you receive a panicky phone call from a valued client asking your advice because the client has just learned that they are involved in a federal criminal investigation. Odds are that this will happen to every lawyer at least once, regardless of your practice area.
You have just been handed a ticking time bomb. You know you need to refer the client to an experienced criminal attorney, but your client wants and needs answers now. What advice should you give to the client?
This article will focus on several common scenarios in which a client learns of a federal criminal investigation, and provides some general guidance for a non-criminal practitioner to get the client and lawyer safely past that initial and critical phone call.
‘I’ve Been Served With a Grand Jury Subpoena’
Service of a grand jury subpoena on your client for his testimony and/or documents is a common method for individuals to become aware of their involvement in a federal criminal investigation.
A grand jury subpoena means that a grand jury is investigating potential federal criminal acts to determine if certain individuals or entities should be indicted. Although the agents may have already left your client’s home or office, you must give your client the critical advice not to destroy, alter or delete any documents or e-mails, or do anything else that could be construed as obstruction of justice.
Because a grand jury subpoena does not necessarily indicate that your client is the focus of the investigation, your client’s status must be determined–are they a potential defendant or merely a witness? A lawyer should contact the Assistant U.S. Attorney involved in the investigation as soon as possible to clarify your client’s status. Unless you have a solid understanding of federal criminal law, an experienced criminal lawyer should be consulted about any grand jury subpoena.
‘Federal Agents Are Here Now to Talk to Me’
Clients might become aware of their involvement in a federal criminal investigation when agents appear with no prior notice and seek to interview them. A surprise visit is almost always a sign that your client is, at the minimum, the subject of an investigation. The client wants your advice about whether to speak with the agents while the agents are standing nearby, maybe even in earshot. Without more information, your answer should be an emphatic “No.”
Ask your client to put one of the agents on the phone and seek to gain as much information as possible about the investigation and whether your client is someone with potential criminal liability. Ask if the agents are working with an Assistant U.S. Attorney and request the contact information for the prosecutor.
Politely inform the agents that your client wants to cooperate and will speak with them, but that you require them to reschedule any interviews until after you have had time to consult your client and the prosecutor.
‘Federal Agents Are Here With a Search Warrant’
The client may first learn of the investigation when agents descend on their home and/or office with a search warrant. The existence of a search warrant means that the government has convinced a magistrate that probable cause exists to believe evidence or instrumentalities of a crime will be found at your client’s home or office and the agents have a right to enter the property and search for the listed items.
The crucial piece of advice you can give is to instruct the client not to interfere or obstruct the agents in their search in any way. The lawyer may also seek to talk with one of the agents on the phone or visit the location personally to view the warrant, monitor the scope of the search, and gain information about the investigation. Because a search warrant is a good indication that your client is a target of the investigation, you should counsel your client not to speak with the agents or anyone else.
With the increasing criminalization of business conduct, lawyers in every practice area can expect their clients to come into contact with a federal criminal investigation at some point in time. When that call comes, the above advice may prove invaluable–as will the name and cell phone number of an experienced criminal lawyer.