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Criminal Law Practice Tips for Civil Lawyers:Presented byJohn W. LundquistRichard H. Kyle, Jr.Dulce J. FosterWhat to do When the Feds are at the Door

Execution Of A Search Warrant Get Out Of The Way!!

Execution Of A Search Warrant Get Out Of The Way!! When the Client CallsTravel to the site of the search if possible.Contact the agent in charge or lead prosecutor.Obtain a copy of the search warrant.Make clear that you are representing the company.Inform agents (and prosecutor) that they are not to speak to anyone during the search.Make arrangements to receive copies of seized business records.

Responding to Subpoenas U.S. District Court Subpoena in a Criminal Case

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Responding to SubpoenasDocuments are not protected by the Fifth Amendment, but other limits may apply:Attorney-client and other privileges may applyProtected patient information should not be disclosed without a court order or patient consentLimits on unreasonable or overly burdensome requests may be negotiated with government counselIf negotiations fail, bring a motion to quash or modify the subpoena (F.R. Crim. P. 17(c)(2))

U.S. District Court Subpoena in a Criminal Case

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Responding to SubpoenasDocuments are not protected by the Fifth Amendment, but the act of producing documents may be protected:Fifth Amendment privilege against producing incriminating evidence Individuals may seek act of production immunity as a condition to responding to subpoenasButseeking act of production immunity may prompt the government to get a search warrantCorporations cannot claim the Fifth Amendment U.S. District Court Subpoena in a Criminal Case

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Dont Destroy Documents Or Hide Evidence

Dont Destroy Documents Or Hide EvidenceClients must never destroy evidence once they are aware that an official proceeding or investigation is underway.Cease routine destruction. Destruction of documents can be a crime. Federal StatuteTampering with a Witness (18 U.S.C. 1512)

Dont Destroy Documents Or Hide EvidenceExh. A: United States v. Arthur Andersen LLPThe E-mailIt might be useful to consider reminding the [accountants on the Enron account] of our document retention policy.The Criminal StatuteWhoever knowingly . . . corruptly persuades another person, with intent to . . . alter, destroy, mutilate, or conceal an object with intent to impair the objects integrity or availability for use in an official proceeding. - 18 U.S.C. 1512(b)(2)(B)

Dont Destroy Documents Or Hide EvidenceLessons learned from the Anderson case:Companies/individuals no longer criminally liable absent proof of nexus between directive to destroy documents and an intent to affect a government proceeding or investigation.Routine enforcement of comprehensive document retention policies is critical.

Employee Interviews- Dont Talk To Strangers -

Dont Talk To StrangersThe Government Investigator Has The Right To Contact An Individual And Request An Interview.The government investigator does not have the right to insist upon an interview. And its improper for him or her to pressure anyone in an attempt to obtain an interview.

Dont Talk To StrangersIndividuals Have The Right To Talk Or Not Talk With Investigators.In all situations individuals have the right to consult with legal counsel before deciding whether or not to talk to the investigator.

If a person decides that they are willing to be interviewed, they have the right to insist upon any precondition they desire.

Dont Talk To StrangersIndividuals Have The Right To Talk Or Not Talk With Investigators.For example, they can require that the interview be conducted only in the presence of legal counsel. Regardless of the individuals decision, the individual has every legal right to tell his or her employer about the government contact.

Always Tell The Truth

Always Tell The TruthIf an individual is going to talk, he/she must tell the truth when talking to government agents. Failure to do so may, in and of itself, be a violation of the law.Federal StatutesFalse Statements (18 U.S.C. 1001)Obstruction of Justice (18 U.S.C. 1505)Perjury (18 U.S.C. 1621)Minnesota StatutesPerjury (Minn. Stat. Sec. 609.48)

Always Tell The TruthExh. A: United States v. Martha Stewart.

Advising The Client To Take The Fifth

Advising The Client ToTake The FifthFifth Amendment PrimerU.S. Constitution, Amendment VNo person shall be compelled in any criminal case to be a witness against himself.Witnesses may invoke their Fifth Amendment right in civil as well as criminal proceedings.DepositionsInterrogatoriesDocument RequestsTest: testimony sought would tend to incriminate witness.Not a bar to the production of documents.

Advising The Client ToTake The FifthWhen a Client Should Take the Fifth.Client is a formal subject or target in parallel criminal proceeding.Be Careful What You Ask ForAdverse inferences.Stay of Civil/Administrative Proceedings.

Resist Governments End Run Around You

Resist Governments End Run Around YouThe Applicable RulesRule 4.2 of the Minnesota Rules of Professional ConductIn representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Resist Government End Run Around YouThe Applicable Rules

Local Federal Rule 83.6(d)The Minnesota Rules of Professional Conduct adopted by the Supreme Court of Minnesota as amended from time to time by that Court are adopted by this Court except as otherwise provided by specific rules of this Court.

Resist Government End Run Around YouWhose Right Is It Under Rule 4.2?The focus of Rule 4.2 relates to the obligation of attorneys to respect the relationship of the adverse party and the partys attorney. The right created by this rule belongs to counsel and not the client. Waiver of this right is only valid if made by counsel.

Resist Government End Run Around YouWho Must Abide by Rule 4.2?Attorneys licensed in Minnesota (or who must abide by those rules under the U.S. District Court Local Rules).A lawyer is also responsible for the conduct of associated non-lawyers if (1) the lawyer orders the conduct, or (2) ratifies the conduct.

Resist Government End Run Around YouWho Is the Client?The CompanyManagementEmployeesFormer Employees?Blanket assertions regarding representations.

Resist Governments End Run Around YouThe Appropriate Remedy Suppression of evidence.

Conducting An Internal Investigation

Conducting An Internal InvestigationWhen to conduct an independent investigation.Corporation discovers a possible violation of law by one of its employees/agents. Corporation seeks to avoid criminal prosecution in post-Enron environment.

Conducting An Internal Investigation Procedures for conducting internal investigation.Establish formal process under supervision of an attorney.Attorney not a target/witnessAttorney did not give advice about subject Preserve privileged information.Employ independent agents.Assure confidentiality.Make disclosure to employees.Corporate Miranda warning.Continuing supervision by counsel.

Dont Become A Witness In Your Own Case

Dont Become A Witness In Your Own CaseRule 3.7(a) Lawyer as WitnessA lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.

Dont Become A Witness In Your Own CaseRule 3.7(a) Lawyer as WitnessDepositions, while available under the Rules of Criminal Procedure (21.01 et seq.), are rarely employed as a discovery tool in criminal casesHire an investigator to conduct any witness interviews.Unless you want to be a witness in your own case.

Thompson and McNulty Memorandums Rethinking Corporate Liability

The Thompson MemorandumIn the wake of Enron, the Department of Justice issued the Thompson Memorandum, which made clear that corporations deemed not cooperating with criminal investigators were more likely to face criminal indictment.In assessing cooperation, prosecutors consider (1) whether the corporation was advancing legal fees or otherwise indemnifying its employees and (2) whether the corporation waived the attorney-client privilege and attorney work product doctrine for materials related to any internal investigations.

Thompson and McNulty Memorandums Rethinking Corporate LiabilityThe McNulty MemorandumIn response to wide criticism by the Courts, Congress, the defense bar and business community, the DOJ issued the co-called McNulty Memorandum, which modifies the Thompson Memorandum in several key areas.Federal prosecutors can no longer consider a business organizations indemnification or advancement of attorneys fees to individual employees when evaluating a corporations cooperation.

Thompson and McNulty Memorandums Rethinking Corporate LiabilityA limited exception is where the totality of the circumstances show that [indemnification or the advancement of attorneys fees is] intended to impede a criminal investigation. In such cases, the fee arrangement will be considered as a factor in determining whether the corporation is acting improperly.

Thompson and McNulty Memorandums Rethinking Corporate LiabilityThe practice of requesting and evaluating corporate waivers of attorney-client privilege and attorney work product will continue where there is a legitimate need for privilege information.

-A legitimate need is determined by (1) the likelihood and degree to which the privilege information will benefit the governments investigation; (2) whether the information can be obtained in a timely and complete fashion by using alternative means that do not require waiver; (3) the completeness of a voluntary disclosure already provided; and (4) the collateral consequences to a corporation resulting from a waiver.

Settlement Statements to Federal Regulators No Longer Privileged Old Federal Rule of Evidence 408Traditionally settlement statements to federal regulators, such as the SEC, were privileged and, therefore, protected from disclosure to federal law enforcement for use in criminal proceedings.

Settlement Statements to Federal Regulators No Longer PrivilegedAmended Rule 408 (effective December 1, 2006)Rule 408 no longer prohibits the introduction in a criminal case of statements or conduct during compromise negotiations regarding a civil dispute by a government regulatory, investigative, or enforcement agency.By contrast, officers of settlement are still protected from admission in criminal proceedings.Thus, any admissions of liability made by a client or a clients lawyer during settlement negotiations with federal regulators can be disclosed for use in criminal proceedings.

Settlement Statements to Federal Regulators No Longer PrivilegedMinnesota Rule of Evidence 408No change yet

Seeking Indemnification

Seeking IndemnificationAlways investigate potential insurance coverageExisting D & O policies may cover the costs of defense for corporations and/or their employeesClaims must be asserted within policy time limitsNotice of investigation (subpoenas, target letters, etc.) may trigger obligation to tender claims

Seeking IndemnificationIndemnification from EmployersIndemnification mandatory under certain conditions. Minn. Stat. 302A.521.No other coverageConduct taken in employees official capacityEmployee acted in good faithNo improper personal benefit to employeeNo reasonable cause to believe conduct was unlawfulConviction not an automatic bar to indemnityIncludes judgments, fines and defense costs

Talking To The Press

Talking To The PressClients with criminal exposure should rarely, if ever, talk to the press.What a client tells the press will likely be admissible later at trial.If you represent a corporation, review press releases with companys public relations people.Consider hiring outside public relations firm.

Consult With A Criminal Defense Lawyer

Consult With A Criminal Defense Lawyer If a civil case has criminal overtones, talk to a criminal defense lawyer. No different than consulting with other specialists or experts.Criminal defense lawyers are lots of fun.We tell great stories.

When the Feds are at the DoorExecution Of A Search Warrant Get Out Of The Way!!Responding to SubpoenasDont Destroy Documents Or Hide EvidenceEmployee Interview - Dont Talk To StrangersAlways Tell The TruthAdvising the Client to Take the FifthResist Government End Run Around YouConducting An Internal InvestigationDont Become A Witness In Your Own CaseThompson and McNulty MemorandumsSeeking IndemnificationSettlement Statements to Federal Regulators No Longer ProtectedTalking To The PressConsult With A Criminal Defense Lawyer

John W. Lundquist - (612) 492-7181Richard H. Kyle, Jr. - (612) 492-7333Dulce J. Foster - (612) 492-7110

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Criminal Law Practice Tips for Civil Lawyers:#4044651_1