For many attorneys, interaction with the FBI and other law enforcement agencies is a completely foreign concept. Many general litigators and corporate attorneys have little to no professional experience with federal investigations involving their clients. However, it is becoming more commonplace for the FBI or another agency to interview attorneys to ask questions about a client who may be the subject of an investigation or may have information relevant to another investigation.
Because this is a fairly recent strategy of investigators, attorneys who do not specialize in criminal or fraud defense may struggle to determine the right course of action. The attorney may be concerned about appearing uncooperative or suggesting that the client has something to hide, and thus may feel an impulse to answer the agent’s questions. On the other hand, the attorney’s duty to maintain client confidences and secrets is one of the most important aspects of the attorney-client relationship. This duty is especially important where the attorney revealing information could cause the client to face criminal liability or a government investigation.
Adding to these thorny issues is the fact that, in recent years, there has been a trend in corporate malfeasance cases for prosecutors to charge attorneys to the same extent as their clients, whereas once that step typically occurred only when there was evidence that the attorneys had been architects or active participants in the alleged misconduct. In light of these risks, here are some tips for attorneys to navigate the complex ethical issues when the government comes calling.
The Attorney’s Duties
Unlike other professional relationships, the attorney-client relationship involves special rules and obligations to safeguard the client and to ensure that the attorney and the client can exchange information freely without the risk of disclosure to third-parties.
In California, Section 6068(e) of the Business and Professions Code provides that an attorney is required to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Even in the event that an attorney reasonably believes the disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm to an individual, Section 6068(e) permits an attorney to disclose confidential information, but does not require it. Then, Rule 3-100(D) of the California Rules of Professional Conduct cautions that, when making a disclosure to prevent death or substantial bodily harm, the disclosure “must be no more than is necessary to prevent the criminal act, given the information known to the [attorney] at the time of the disclosure.” This shows the seriousness with which this issue is treated.
Other jurisdictions follow similar rules and obligate attorneys to safeguard confidential communications, even when the attorneys are aware of potentially harmful misconduct. For example, Rule 1.6 of the ABA Model Rules of Professional Conduct, which has been adopted in some form by many jurisdictions, stresses the importance of maintaining confidentiality. It also permits an attorney to disclose information under certain circumstances to prevent the client from committing a crime or fraud that would result in substantial injury to the financial interests or property of another. Notably, this provision is again permissive, not mandatory.
An Attorney’s Potential Liability
Even when the client provides informed consent to the attorney’s disclosure of confidential information and otherwise authorizes the attorney to cooperate with a government agent, many attorneys will still proceed with caution, both for the protection of the client and for the attorney’s own sake. There could be a risk that, when an attorney answers questions about possible corporate misconduct by a client, the government may focus on the attorney’s culpability as well.
For example, if the government has determined that a corporate client committed malfeasance, and then an attorney suggests that she or he had knowledge or awareness of the client’s conduct, the attorney could face indictment or become a material witness. The attorney’s advice to the client also might be scrutinized if that advice arguably led to the conduct under investigation or was relied upon by the client.
Depending on the nature of the conversation, an attorney may want to consider whether the contact from a law enforcement agency should be reported to the attorney’s legal malpractice insurer. To ensure no loss of insurance coverage, the attorney and the firm might decide to report the contact as a circumstance under their legal malpractice policy and reference it in any future renewal applications. Whether this is an appropriate step will depend on the facts and circumstances.
Consider Involving In-House Counsel
Another possible step after receiving contact from a government agent is to notify the firm’s counsel to obtain additional advice on how to proceed. By doing so, the attorney can help ensure that her or his evaluation of what to do next is protected under the privilege shared by the attorney and the firm’s counsel. In-house counsel can also involve outside counsel, if necessary, to assist the firm and the attorney. The attorney can also consider whether to involve a subject matter expert in government investigations to help the attorney navigate the coming swells.
Questions from a government agent regarding a client are typically not an issue to be taken lightly, even if the questions are informal or seemingly innocuous. By having an understanding of the issues and a roadmap for first steps, attorneys can ensure compliance with their ethical obligations and help limit their exposure.