How General Counsel Can Protect Themselves During Government Investigations
How General Counsel Can Protect Themselves During Government Investigations
Wilkins Davis Attorneys at Law specializes in helping professionals navigate federal investigations. Our lawyers in Columbia, SC, and the Upstate are well-versed in both local and federal legal environments. We work with corporate leaders to build strong defenses and manage the risks associated with government inquiries. If you’re looking for a government investigations law firm that will stand by your side, rely on us for help.
Understanding the Meaning of Government Investigations
A government investigation is an inquiry conducted by a government agency to determine if a person or company has violated the law. These aren’t always criminal cases. They can be civil or administrative, too.
For a General Counsel, the stakes are high. The government might be looking at the company, but it will also examine whoever provided the legal advice. Did the GC know about the wrongdoing? Did they try to stop it or help hide it? These are the questions government investigators will ask.
Various Types of Government Investigations
Many agencies can start an investigation, including:
Department of Justice (DOJ)
The DOJ handles federal criminal cases. They could involve fraud, bribery, or money laundering.
Securities and Exchange Commission (SEC)
The SEC focuses on financial markets and gets involved if a public company misrepresents its earnings.
Environmental Protection Agency (EPA)
The EPA investigates pollution and environmental crimes.
Federal Trade Commission (FTC)
The FTC looks into unfair business practices and monopolies.
Internal Revenue Service (IRS)
The IRS investigates tax evasion and fraud.
Each agency has its own rules and procedures. Knowing which agency is knocking on the door is the first step toward building a defense.
Common Strategies General Counsel Can Use to Protect Themselves
When an investigation begins, a General Counsel must act carefully. Here are some strategies that can help:
Hire Personal Counsel
This is often the most important step. The company will have its own lawyers, but those lawyers represent the company. Their job is to save the business, even if that means blaming the GC. Having your own government investigation attorney ensures someone is looking out for your interests.
Preserve Documents
Never destroy documents once an investigation starts or is imminent. Deleting emails or shredding papers can be seen as an obstruction of justice. This is often worse than the original crime. A GC must ensure a “litigation hold” is in place to save all records.
Assert Privilege Carefully
Attorney-client privilege protects communications between a lawyer and their client. However, in a corporate setting, the “client” is the company, not the individual employees. The company can choose to waive this privilege to cooperate with the government. A GC needs to know exactly what’s protected and what’s not.
Stay Honest
Even if the underlying issue is not criminal, lying about it to a federal agent can land a GC in jail.
How Government Investigators Can Counter These Tactics
Government investigators are smart and have many tools. If a GC claims attorney-client privilege, investigators might argue the “crime-fraud exception.” This rule says that privilege does not apply if the lawyer’s advice was used to commit a crime.
They also use cooperation credit. The government often tells companies they’ll get a lighter penalty if they cooperate. Cooperation often means handing over emails, waiving privilege, and pointing fingers at individuals, including the General Counsel. This can drive a wedge between the GC and the company.
The Role of Professional Lawyers in Government Investigations
Navigating a federal investigation requires experience. A professional lawyer helps in several ways:
Communication
They talk to the government so that you don’t have to do so. This prevents you from accidentally saying something incriminating.
Document Review
They review thousands of documents to find what is relevant and what’s privileged.
Strategy
They figure out the best path forward. A skilled government investigation attorney will guide decisions regarding whether it’s best to cooperate or fight.
FAQ About Government Investigations
We’ve answered some of the most frequently asked questions about government investigations below.
Can I Be Held Personally Liable for the Company’s Actions?
Yes. If you participated in the misconduct or failed to stop it when you had a duty to do so, you can be held personally responsible.
What Is an “Upjohn” Warning?
This is a warning a corporate lawyer gives to an employee. It states that the lawyer represents the company, not the employee, and that the company can choose to share what the employee says with the government.
How Long Do These Investigations Take?
They can take months or even years, depending on the complexity of the case and the number of documents that need to be reviewed.
Contact Wilkins Davis Attorneys at Law in Upstate SC
The team at Wilkins Davis Attorneys at Law is ready to help you overcome a government investigation in Upstate South Carolina. We represent General Counsel and other professionals, so contact us today.
