I’ve had the same conversation with a few fellow lawyers who serve clients in the corporate law world, “So my client got a call from a federal agent wanting to talk to them. … They said the agent sounded really nice. …” It’s right after they tell me how nice the FBI agent sounded that I tell them to have their client call me directly and not speak to anyone else until they do. I usually then tell the lawyer, “The agents are really nice. Right up until the point where they put the handcuffs on your client.” Perhaps you can forgive me for the dramatic flair I add to these conversations (I am a trial attorney after all) as long as you remember the message: federal investigations can literally take everything from your client and need to be handled accordingly.
In truth, some situations are not as dire for clients contacted by a federal agency; they may just have some piece of information that was honestly obtained by them and they aren’t truly at risk for federal prosecution. Many times, however, people who come to the attention of federal investigators have criminal liability that can be deadly serious with consequences that can include public arrest, seized assets and lengthy incarceration. It’s good practice to treat every contact with a federal investigator with an eye toward the worst case scenario for your client. After all, if you treat every handgun like it’s loaded, you lower the risk of shooting yourself in the foot (or other, more sensitive, parts).
Many federal investigations – particularly in the white collar crime areas – start with the government sending out letters to individuals, subpoenas to appear before a federal grand jury or both. If your client gets a letter from the government – usually the United States Attorney’s Office, but not always – look carefully at the language that refers to your client. If the government wants to interview your client as a witness in a federal investigation then proceed with caution; people who start as witnesses don’t always end up as witnesses, sometimes they also find themselves on the wrong side of the bars. If the government indicates that your client is the subject of a federal investigation then look out; subjects of a federal investigation can very easily become criminal defendants. Indeed, that may be the best time for your client to hire an experienced criminal defense attorney – someone who can work to keep your client an investigation subject (rather than an investigation target).
If the government indicates that your client is the target of a federal investigation then it’s time to call a criminal defense lawyer, no matter how nice the agents seem. The target language often means the government has already decided at some level that your client has broken the federal law and is amassing evidence to prove that fact. It is certainly possible for a person who gets a target letter to completely avoid criminal prosecution but it will likely be a fight. Getting a criminal defense attorney on your clients’ side early gives your client maximum advantage prior to indictment and arrest.
If a grand jury subpoena arrives for your client without a letter from the government attached, then it’s still good practice to get a criminal defense attorney involved. It’s possible that the subpoenaed witness may not have to testify in front of the grand jury.
If your corporate client is approached by a federal agent who requests an interview, it’s also time to beware. Those very nice, very professional federal agents are charged with investigating whether or not a crime has been committed and arresting those responsible. If something your client says during that interview makes those nice agents feel that your client did something wrong, it will quickly be no more Mr. Nice-Guy/Gal. There are scenarios where fully cooperating with agents during a federal investigation is the right move for your client. However, in many instances, sending your corporate client into an interview with the FBI can have negative, powerful and lasting consequences. An experienced criminal defense attorney can help guide your corporate client through the rocks and shoals of these kinds of decisions, It doesn’t necessarily mean they won’t ultimately be shipwrecked, but they’ll at least have more of a chance to make it to open water and fight it out.
Interactions with federal investigators don’t have to be contentious but they should always be handled with care – no matter how nice the agents are – in order to give our clients the best options to deal with what could be serious trouble on their horizon. Rob McGuire
