Law enforcement has asked me for information about my business. What should I do?
You have just received a subpoena from the Government commanding the production of documents or other information. Or perhaps you have been contacted directly by someone from the FBI, the US Attorney’s Office, the State Attorney General’s office or a District Attorney asking you to appear in person for a meeting. What should you do?
Get an Attorney
Receiving a subpoena can be daunting. If your business receives a subpoena or other request for information from law enforcement, the first thing you should do is contact your business’s highest ranking legal representative, if it has one, to assist in retaining a criminal defense attorney. If you are an individual or your business does not have an in-house lawyer, you should should similarly engage the services of a criminal defense attorney as soon as possible. Time is of the essence because most subpoenas state a deadline by which the recipient must comply.
Now That We Have An Attorney, What Happens Next?
The first thing counsel will do is to contact the government to determine who is in charge of the investigation or proceeding. This is done in part to make sure that all future contact from the government should take place through your counsel.
The next order of business will be to determine what the government’s interest is in you or your business. Counsel will likely seek an extension of time to respond, both so they can familiarize themselves with the case and to ensure timely compliance with the subpoena. Attorneys for the government will generally grant such requests at an early stage.
Counsel will work with you to respond to the subpoena and, if necessary,to challenge any aspects of the subpoena that overreach.
What Bucket Are You In?
Counsel will next try to learn as much as he or she can about where the client fits within the government’s particular interest. Specifically, the question is where you fall within one of three “buckets,” which is a standard term used to describe the government’s interest as part of a criminal investigation. These buckets are identified as target, subject, and witness.
If the government has identified you as a target, this usually means that the government believes that you are directly involved with the criminal activity that is being investigated. If the government has identified you as a subject, this usually means that the government believes that you may have some involvement or knowledge of the criminal activity being investigated and, although it is not certain of that involvement, the government is seeking to learn more through the development of evidence.
Finally, if the government has identified you as a witness, this indicates that the government has determined that you are not a target or a subject, but may nevertheless have knowledge or information about the criminal activity that is being investigated, and importantly, may be of assistance to the government. This, of course, is the best category for any client to find themselves. More often than not, when the government has determined that a client is a witness, the government already has vetted the client’s involvement and, having identified the client as a witness (and barring the development of contrary evidence), this categorization should not change.
In all three of the buckets described above, if counsel determines that you should meet with the government, counsel will typically do so by obtaining the protections afforded by a written agreement between you, your counsel, and the government’s attorney, which is commonly referred to as a “Proffer Agreement.” Entering into a Proffer Agreement with the government, which requires the client to appear and make a statement (either directly or through counsel), is a very nuanced practice that requires delicate navigation between providing the information requested without making incriminating statements that can be used against you later.
Later posts will elaborate on how your counsel will help put together the information requested in the subpoena, and/or set up a meeting with the government’s attorneys.
The key message of this post is the importance of getting counsel involved early. Regardless of whether you are a target, subject or only a witness, you should seek counsel’s advice.