The Fine Art of Making a Criminal Referral
by Bill Mateja and Albert Starkus
Many civil matters often involve conduct that rises to the level of criminality. While making a criminal referral is not as simple as dialing 9-1-1, victims of parallel civil/criminal wrongdoing can also seek the assistance of law enforcement in protecting their rights and seeing wrongdoers punished. There are several key steps, however, that will ensure the best result. As a first step, consider whether there is any reciprocal wrongdoing on your client’s part before approaching the government.
Even If It Looks Like a Duck and Quacks Like a Duck . . .
Thorough analysis of the law and facts can avoid frittering away client resources or your own credibility by referring conduct that does not rise to the level of a criminal offense. Reach out to a criminal attorney for advice not only on the black letter law, but to take the pulse of government enforcement in a particular area. Your best bet is to get advice from a defense attorney who handles federal and state cases and can offer a more comprehensive perspective.
Who You Gonna Call (not Ghostbusters)?
If both state and federal law criminalize the conduct, you’ll have to decide which jurisdiction to approach. If you are thinking about approaching the Feds, check into recent federal priorities of criminal enforcement through press releases and announcements on the Department of Justice’s website. Public corruption, government fraud (including health care fraud), mortgage fraud, crimes against children and national security are recurring areas of high interest.
If you decide the activity fits into the federal crosshairs, but the conduct occurs in multiple districts, consider that different offices will often have different expertise, depending on their location and the past prosecutions they have handled. You should not always try to federalize a criminal referral, however. State prosecutors usually will have a better appreciation for the case where the criminal activity has a local impact. State venue rules can usually direct you to the District Attorney’s office with jurisdiction.
Brown Paper Packages Tied Up With . . . A Bow
Your referral will always have a higher chance of success if you can present it with the heavy lifting already done. Draft a fairly in-depth referral letter, essentially a prosecution memorandum, setting forth the law and facts and analyzing how the elements of the crime are met. A good referral letter includes some statement about why the case should be prosecuted and the public interest being vindicated, and often encloses a binder containing factual evidence such as e-mails, related contracts or deposition transcripts. Never reach out to the government until you are comfortable that you have the evidence needed to support a case.
I Want To Have My Case and Eat It Too
If you really want a pound of flesh, you need to include prosecutors early. By the time you have resolved your civil case, prosecutors may have missed out on a chance to execute a search warrant or issue a subpoena that would capture evidence. Memories fade over time. Also, you could create the impression that you are just piling on. No one ever became a prosecutor so they could be the wagging tail to your civil masterpiece. Once you involve law enforcement, be sure to seek their permission in pursuing your civil remedy.
At the federal level, an ideal first contact is the deputy criminal chief with the U.S. Attorney’s Office who oversees a particular area of criminal enforcement. Such information can sometimes be found on the office’s website or in press releases related to similar prosecutions. If there is no such individual, you will want to reach out to the Criminal Chief in the office. Use a similar approach with state prosecutors.
Your first step is always going to be a telephone call and a request for in-person meeting, which you may not get. After the meeting, a steady supply of additional information is often required to keep the wheels of justice turning. Sometimes, it is wise to request a friendly grand jury subpoena seeking the documents. But if there is a protective order in place in a civil case , you may need approach the court that issued the protective order before turning over records responsive to the friendly grand jury subpoena. Lastly, as you move forward, keep in mind that investigative agents play an important role in whether or not an investigation will culminate in a prosecution. Make them your friends.
Do Not Waive Privilege (Unless You Mean To)
Instead of simply forwarding privileged material or work product, consider providing the government with a letter that summarizes the facts only and omits attorney impressions. Attorney impressions, after all, are the soul of the work product protection and excluding them creates a strong position to claim that work product has not been waived.
A selective waiver agreement may also be useful, but, as seen by a recent rejection in the Ninth Circuit, In re Pacific Pictures Corp., 679 F.3d 1121, 1127 (9th Cir. 2012), may not be binding on third parties. Ultimately, the situation may require you and your client to choose between providing information or protecting the privilege.