Prosecutors focus on individuals
The Justice Department’s principles for prosecuting business organizations say that because a corporation only acts through individuals, prosecutors should focus on wrongdoing by individuals from the very beginning of any investigation of corporate misconduct. Prosecuting a company is not a substitute for prosecuting the people responsible.
To receive cooperation credit, the manual says a company must identify all individuals involved in or responsible for the misconduct. That means the company’s interests and yours may not line up.
The company’s interests and yours may not line up.
Who the company’s lawyer represents
Under Florida Bar rule 4-1.13, a lawyer retained by an organization represents the organization acting through its authorized constituents. When the lawyer knows or should know that the company’s interests are adverse to an officer’s or employee’s, the lawyer must explain who the client is.
The comment to that rule says the lawyer should tell that person the lawyer cannot represent them, that they may wish to get independent representation, and that their conversations with the company’s lawyer may not be privileged.
- Upjohn warning
- The explanation a company lawyer gives an employee in an interview that the lawyer represents the company, not the employee. The name comes from Upjohn Co. v. United States, the 1981 Supreme Court case on privilege for employee interviews.
- Privilege
- In Upjohn, the Court held that employees’ communications with company counsel can be privileged. The Justice Manual notes that a corporation may freely waive its own privileges.
In practice, what you tell the company’s lawyers belongs to the company, and the company can decide to share it with prosecutors.
When you need your own lawyer
- You made decisions at issue. Executives, managers and anyone who approved, billed or signed off on the conduct under review.
- You received a subpoena or target letter. Personal legal process calls for personal advice.
- Agents want to interview you. The company’s lawyer cannot protect your individual interests.
- Your account differs from others’. Conflicting accounts are a sign that interests may be adverse.
Justice Department policy says prosecutors should not consider whether a company advances or reimburses employees’ attorney fees, and may not ask a company to stop doing so. Whether your company will pay for your lawyer depends on its bylaws, agreements and decisions.
Records and communications
Once an investigation is known, records must be preserved. Destroying, hiding or altering records to impede a federal investigation can be charged under 18 U.S.C. § 1519, with a maximum of 20 years in prison, even when the investigation itself ends without charges.
Be careful with texts, chats and emails to coworkers about the investigation. Those messages can become evidence.
How Kaufman Legal Group can help
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985, and Victor E. Rocha, who was admitted to The Florida Bar in 1983 and speaks Spanish. Together they have more than 100 years of combined experience.
The firm represents individuals, including executives, managers and employees, when their company is under investigation. It can work alongside company counsel while protecting your own interests. The first consultation is free and confidential. Call (954) 648-8965.