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Criminal Emergencies for Civil Attorneys

Mon, 07/23/2018 - 09:52 -- admin25

by Bill Mateja and Jason Hoggan

Client emergencies are an inevitable part of what we do. Those emergencies sometimes come with a criminal twist. Federal agents might arrive unannounced to conduct a search of a business or interview employees. A company might unexpectedly be served with a grand jury subpoena. Regardless of the scenario, your client may not have time to engage a criminal lawyer—your phone rings instead.

Not every attorney aspires to be a modern day Perry Mason, but when a panicked client calls with a criminal emergency, even civil attorneys should be able to do better than My Cousin Vinny.

Here are three common areas in which a civil lawyer might be faced with a criminal emergency, and some simple tips to help your clients get through it.

Surprise! We’re Here With a Search Warrant

Federal law enforcement agencies have steadily increased their use of search warrants in recent years. Ideally, companies should have a clear game plan in case a search warrant is executed on their property. However, many do not. So, when you learn that federal agents are at a business with a search warrant, here is the Search Warrant Response 101 play book:

  1. Do not consent to the search.
  2. Do your best to try and get the agents to wait until outside counsel arrives.
  3. Ask for each agent’s identification and record pertinent information.
  4. Carefully review the search warrant and, if possible, the search warrant affidavit.
  5. Send non-essential employees home.
  6. Do not remove, dispose of, or conceal documents or tangible items.
  7. Have someone closely monitor and take notes of the agents’ activities and searches.
  8. Ask to copy seized files, but understand that agents are not required to grant this request.
  9. Attempt to preserve privileged information.
  10. Obtain a receipt for seized items.

So Tell Me About Your Boss…

Clients may also speed-dial you if authorities unexpectedly show up and ask to interview company employees. Whether the request relates to a search warrant or not, you should inform clients to tread lightly—management should not do anything that could be construed as directing or instructing employees not to submit to government interviews. However, you can advise the client/client employee as follows:

  1. You have the absolute right to not be interviewed, although you should provide your name and identification.
  2. You also have the right to agree to an interview. The choice is yours.
  3. We are not asking you to agree or refuse to be interviewed—we simply want you to know your rights.
  4. If you agree to be interviewed, the Company will provide you an attorney [obviously, you need to discuss with company counsel whether the company will provide a lawyer].
  5. If you are interviewed, anything you say can be used against you in a subsequent criminal prosecution or civil enforcement proceeding, regardless of whether officers give you any so-called Miranda warnings.

Not-So-Grand Jury Subpoenas

Conversely, some perceived criminal emergencies really are not emergencies. When businesses receive a grand jury subpoena, the initial response is often a mixture of panic and confusion. The mere combination of “subpoena” with the terms “grand” and “jury” can be enough to trigger significant concern.

Grand jury subpoenas are not necessarily a “grand” threat to a company, and there is no need to treat them as a criminal emergency. When one arrives at your client’s office, ease their concern by offering simple, yet sage advice:

  1. Take a deep breath. There is no reason to panic.
  2. Trigger company document retention procedures for the requested material.
  3. If concerned about the request itself, the breadth of the request or the burden that would be imposed on the client, contact the prosecutor and/or agent listed on the subpoena.
    1. Ask the prosecutor whether the recipient is considered a witness, a subject, or a target of the investigation.
    2. Ask about the subject matter of the investigation and the nature of any evidence. Learn as much as you can about the investigation. It will help inform your judgment as to next steps.
    3. Do not be afraid to push back if the subpoena makes irrelevant or burdensome requests, and negotiate a narrowed scope if possible. Remember that you catch more bees with honey than vinegar.

Keep in mind that there is no Fifth Amendment privilege against self-incrimination as to a business unless the business is unincorporated.

And, finally, in the immortal words of Sgt. Phil Esterhaus of Hill Street Blues fame--“Hey, let's be careful out there.”

Bill Mateja is a shareholder at Sheppard Mullin Richter & Hampton LLP. He can be reached at bmateja@sheppardmullin.com. Jason Hoggan is an associate at the firm and can be reached at jhoggan@sheppardmullin.com.

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