Protect This House: Responding to Law Enforcement Contact as Corporate Counsel

Few corporate and in-house counsels expect that they or their employees will be contacted by law enforcement. After all, part of their job is to advise their client (the Company) how to abide by the law. Yet it happens, a lot. And it will continue to happen, a lot. As a result, this article provides you, the corporate counsel, with the basic tools you need to prepare for and respond to the common ways companies and their employees encounter law enforcement.

Generally, both state and federal law enforcement have three primary tools to facilitate corporate investigations. First, interviews; second, subpoenas; and third, search warrants. Each of these investigative tools, and how in-house counsel should respond to them, are addressed below.

Interviews

The most basic and effective law enforcement tactic used to gain information is to talk to people, and law enforcement officers are very good at getting people to talk. It’s as simple as showing up at their home, stopping them outside the supermarket or place of work and asking the employee whether she has “a minute to answer just a few questions” while flashing a badge. The agents are usually polite and professional, and this tactic frequently gets law enforcement access to all sorts of information because they know people want to be cooperative and help law enforcement. And, in the minds of most people, refusing to assist suggests culpability. After all, the employee and their company have nothing to hide, right?

Law enforcement has every right to make these informal approaches and this includes showing up at your company unannounced asking to speak with the President, the CFO, the receptionist or even you as the corporate counsel. So how do you, as the corporate counsel, respond when you learn that one of your employees was asked business-related questions by law enforcement or when law enforcement shows up at your company asking questions?

First, determine what the nature of the inquiry is before answers to any questions are given. Turn the tables and politely ask questions about the nature of the investigation. Next, buy time to determine whether you should answer the questions and if so, how and when. Request the agent’s contact information and tell them you or other counsel will be in touch. Similarly, you should interview any of your employees who are approached by law enforcement and inquire about what was asked and what was said. When you speak with an employee, you should first provide them with Upjohn warnings, which advises them that that you are not their lawyer and what they tell you can be disclosed by the company to whomever the company wishes, including the government.1

Employees should also be regularly trained about what their rights are in those situations and what your company policy is on answering questions related to your business. Employees have every right on their free time to speak to law enforcement if they chose to, but they also have every right to tell law enforcement to go away. Employees don’t have a right, necessarily, to voluntarily share protected information or your company’s private/ secret information just because law enforcement asks nicely with a badge. This is particularly important in highly regulated industries such as health care where patient information is strictly protected.

You should also consider engaging outside counsel with experience handling corporate investigations to contact law enforcement on behalf of your company and help advise how, if at all, your company will cooperate with the investigation and whether any internal investigation is needed.

Subpoenas

Federal and state law enforcement, grand juries and prosecutors all have the power to issue or obtain subpoenas and compel the production of materials or sworn testimony. Even many federal and state agencies have subpoena power, though generally with a limited scope. In the law enforcement context, the common subpoena a corporate counsel will encounter is a grand jury subpoena. The actual subpoena is a two- or three-page document directing your company to produce documents and/or witnesses related to an investigation. Normally the subpoena is accompanied by an addendum or “rider” that particularizes what is being compelled. How should corporate counsel respond when their client is served?

Your first step should be to read the subpoena in its entirety and try to deduce (a) what the nature of inquiry is and why your company is receiving the subpoena; (b) determine the range of information sought both in volume and duration; and (c) whether and how to start preserving information that may be responsive. You may also want to contact outside counsel who is familiar with responding to corporate subpoenas and seek their advice on how to respond, both internally and externally, and/or to contact the official who is the point of contact on the subpoena.

If you call the point of contact on your own, try to get more time to respond and to limit the scope of production. Most subpoenas are drafted broadly so don’t be afraid to push back and tell the government that what’s requested is not feasible or will be too costly for your company to produce and cite specific reasons why. Many times, the government will agree to voluntarily limit the scope of the subpoena response and extend your time to respond. This simple request can save you and your company considerable time, stress and money. If the government does agree to modifications of the subpoena’s scope, document those changes in written correspondence to the government agent you spoke with.

After the above initial assessment, a host of other steps may need to be taken depending on whether your company is the target of the investigation or just has information relevant to an investigation. From here, your actions will be driven by your specific circumstances. You may need to set up a document review process to search for and find responsive information and vet that information for privileged or protected information. Any disclosure of privileged information or protected information should be done with care and in close coordination with the government. A privilege log may need to be created that identifies records (or portions of a record) that are responsive but are being withheld due to certain privileges or other protections that may apply. An internal investigation may also be needed to determine the scope of any corporate exposure and the need to take any corrective action.

Another initial step in responding to a subpoena is determining whether there is a basis to quash or modify the subpoena. Just because a subpoena is issued doesn’t mean it’s a legitimate exercise of government authority. If the subpoena is issued by a New York State Court, then a motion to quash/modify can be brought immediately in that court under CPLR 2304. If the subpoena is issued by an agent or state entity, you must first ask the issuer to withdraw or modify the subpoena. If they fail to satisfy your demand, then you can bring a motion in Supreme Court. A motion to quash/modify a federal subpoena can brought under Federal Rule of Criminal Procedure 17(c)(2) in criminal matters and Federal Rule of Civil Procedure 45(d)(3) for civil matters. Both are mentioned here because the government often proceeds on dual tracks by simultaneously investigating both civil and criminal liability.

Search Warrants

If a company is the subject of a search warrant, you’ll know when dozens of armed agents wearing various colored windbreakers and layers of body armor quickly exit vans and SUVs in your parking lot and flood into your building just as it opens for business. Some weapons will be drawn, employees will be corralled or held in place, pronouncements of authority will be issued. Walkie-talkies will crackle. Agents will attempt to speak to a manager or someone of authority to get their cooperation in finding the information they are looking for. A copy of the warrant is usually provided. These are kinetic situations and there are no hard and fast rules for what to do in response because the facts on the ground will dictate what needs to happen and in what order. But there are plenty of do’s and don’ts:

Do:

• Immediately review the warrant and strictly supervise the removal of the information. If you feel that information is being improperly taken or obtained, document what was taken, from what location and why you object to its seizure.
• Consider sending your employees home and canceling appointments for the day. Employees may be interviewed, spoken to or unintentionally give consent for law enforcement to search/seize additional information outside the scope of the warrant.
• If employees are being interviewed, advise them that they have every right to participate or not participate in the interview; that they have the right to consult with an attorney before making that decision and have a lawyer present with them during any interview.
• Notify the agent in charge of any privilege issues associated with the information being seized and advise them of the protections they need to take with that information.
• Contact outside counsel for your company and consider helping arrange separate individual counsel for employees who may be of interest to law enforcement
• Develop a plan to communicate with clients, vendors and business partners about any expected delays or interruptions in service, while not making admissions.
• Get prepared for media attention and make sure your employees know how to respond to media inquiries. You may consider hiring a public relations firm to assist with this process.

Do Not:

• Give consent for law enforcement to take information or give them access to anything outside of what is described in the warrant. If a dispute arises about what the warrant permits, ask for the contact information of the prosecutor overseeing the matter and articulate your position to her. Ultimately you cannot obstruct the search, but you do not have to give consent.
• Destroy, delete or hide anything or allow others to do so.
• Make admissions about the nature of the investigation to law enforcement or the media.
• Allow law enforcement to leave without providing you an inventory of what was taken and compare it to one that you have maintained while you supervise the search.
• Handle this all on your own. Seek help from outside counsel and/or your staff and other responsible colleagues to communicate with your employees about how to respond and what is happening and to assist with supervising law enforcement’s conduct.

Conclusion

Preparation and planning go a long way to reducing the stress and costs associated with law enforcement contacts and reducing exposure to your client. Employees, particularly in highly regulated industries like health care, banking and finance, should be trained about what their rights are if confronted by law enforcement and what your company’s policies are about sharing information related to your business. Your company should have an updated litigation hold plan/policy so that information can be preserved and produced if necessary. Your company should also have a document retention/ destruction policy that it adheres to. Companies should also have a compliance committee or program that makes sure its internal policies are adequate and that its business practices are following appropriate standards. These efforts require a real investment of time, money and resources, but are necessary investments to avoid greater harm in the future.

Endnote

1. Upjohn Co. v. United States, 449 U.S. 383 (1981). These warnings are also known as “Corporate Miranda Warnings.” The critical points that must be communicated to an employee by in-house counsel in an internal investigation are that: (a) the in-house counsel does not represent the employee and as such, the attorney-client privilege over communications between the attorney and the employee belongs solely to, and is controlled by, the company; and (b) that the company may choose to waive the privilege and disclose what the employee informs the in-house counsel to a government agency or any other third party.

Scott Iseman is a partner at O’Connell & Aronowitz P.C. in Albany, New York and represents business leaders, public officials, individuals and corporations during government investigations and internal corporate investigations. He can be reached at 518-694-5633 or by email