White Collar Crime Investigations - Tips

Posted on October 16, 2018

Originally published in October 2018

This article has not been updated for current law since the date of its posting on the website. This article is not intended to provide any legal advice. Please seek advice of your professional council.

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Introduction

These tips are designed to provide you with basic information as to the first steps to take if you or an entity you represent believes it is being subject to a criminal investigation.

TIP #1: Know Your Rights

Outside of rare situations, a law enforcement investigator cannot compel an individual to answer questions or give an interview. The government is permitted to subpoena or obtain a search warrant to obtain documents, tangible evidence, electronic stored information and similar items. Thus, if federal or state investigators arrive with a valid search warrant, an individual is required to allow them access to execute that warrant, within its scope, but they are not required to answer any questions.

TIP #2: Get a Lawyer

A business owner who is the subject of an investigation needs to hire at least two lawyers to properly handle that investigation – one for the company and one for themselves.

Engaging competent counsel can allow the individual to cooperate with the investigation, without being place in a position where the individual may be subject to interrogation. Anything you say really can be used against you.

Engaging counsel for the business creates a separation that will allow for an attorney-client protected internal investigation, and may be helpful when it comes to discussion of resolutions.

TIP #3: Know What You Can and Cannot Tell Your Employees

Telling an employee that they are not allowed to speak with an investigating law officer can constitute obstruction of justice.

In investigations that appear serious, most companies will arrange for several lawyers to be available to their employees. Thus, if an employee is contacted by an investigator, and advises the employer of that contact, then the employer is able to provide the employee with a lawyer’s contact information and may agree to pay the cost of the representation. This provides a situation where the employee can get legal advice as to whether it is in their best interest to speak with investigators.

TIP #4: Conduct An Internal Investigation

As soon as you are aware of a potential investigation, it is imperative that the business conduct an internal investigation to determine whether it may have criminal exposure. This needs to be done with the understanding that any number of employees may already be talking to law enforcement. The goal of the investigation is to determine if there is exposure.

TIP #5: Front Load Your Exposure Analysis

Completing a thorough investigation should provide you with good information on your exposure. If you determine that there is very little exposure, then it may be worth engaging with the investigating entity to share your findings. If you determine that there is exposure, then it is advisable to consider what steps could be taken to address the issue, and whether early cooperation with the investigating entities may avoid more severe consequences.

Author: Neal R. Devlin

Originally published in October 2018