The most fatal mistake you can make is to answer questions of an investigator without an attorney present. Many business owners make this mistake because they think they can explain everything away. You are dead wrong. Even answering simple sounding and seemingly harmless questions can help the investigator's case, while hurting your defense. Their goal is to get you to corroborate certain facts or make a misrepresentation they can use against you later. They are trained to manipulate by getting you to let your guard down. Investigators are not your friend. If they are seeking to ask you questions, it is a serious situation. Your rights and your business will be best protected by politely declining to speak with them and asking them to contact your lawyer. If you do not have a lawyer experienced in handling investigators, politely tell them that you would prefer to speak to them with a lawyer present and that you will contact them within 24 hours.
Step Two: Contact A Lawyer.
Contact with investigators can range from a simple interview request to a subpoena or search warrant. Investigators may attempt to interview your employees with or without your consent or knowledge. They may have already spoken to former disgruntled employees or current employees. The point is, you do not know the entire situation and should be careful what you say. Most of the time, investigators already know the answers to the questions they are asking you. Most businesses have a lawyer who handles transactional work, collections, contracts, etc. But most of these lawyers are not experienced with handling criminal or civil investigations.
You should ask your current lawyer for a referral or search the internet for a lawyer that handles white collar crime or corporate investigations in your geographic area.
Step Three: Be Honest With Your Lawyer.
This may sound like common sense, but many business owners are reluctant to tell the whole truth and feel like they need to protect themselves or their business, even to their own advocate. Whatever you tell your lawyer is privileged and confidential. Your lawyer will not "sell you out" or defend you any less aggressively if you reveal that something illegal took place. Your lawyer's job is to protect you and your rights. Your lawyer cannot mount the most effective defense of your rights if he or she doesn't know the truth and the whole truth. Worse, your lawyer can lose credibility with investigators if you are telling your lawyer lies. As stated above, most of the time investigators already know more information than you think. So tell your lawyer everything he or she needs to know about you, your business, and the situation that the investigators are asking questions about.
Step Four: Respond To Your Lawyer's Request For Information.
Don't assume your lawyer knows as much as you do about your business or your employees. Most of the time, the lawyer is going to request documents or other information about your business to get familiar with it and make the best assessment of your case. As the saying goes, "the devil is in the details." So don't gloss over the details thinking they aren't important when you speak with your lawyer.
Be a good client. That means responding to your lawyer's request for information in a timely manner. Make your employees available to your attorney for interviews and educate your lawyer about your business.
Step Five: Decide Who The Lawyer Represents Early On
Does the attorney represent you individually? Does he represent the company as a whole? Does he represent the employees as well? These are questions you are going to have to answer early on in your initially consultation with an attorney during an investigation. The answers will largely depend on the exact circumstances of the investigation at issue.
Consider whether you should also hire pool counsel. Pool counsel is an attorney that is retained and available to individual employees, should they be contacted by investigators and desire legal representation at company expense. This is often a wise decision which protects your employees from harassment or intimidation, but remember that the pool counsel's loyalties and duties lie with the individuals, not the company. Remember that the business is a legal entity itself and that its interests may be different than the individuals who own or operate it.
Investigations or audits can be conducted by the Federal or State government or even some trade groups such as the Business Software Alliance. Contact with your business can range from a simple interview to a subpoena for records or a search warrant. Whatever the situation, the 5 steps in this guide are essential in protecting your rights and your case. Many cases are lost during the initial interview with investigators. Worse, some interview subjects make a false statement and even though they've done nothing illegal, can be charged with obstructing justice or lying to investigators.
So remember: 1) Investigators are not your friend - don't talk to them without a laywer and don't let them interview your employees at your business without providing them legal counsel; 2) hire a lawyer as soon as possible; 3) Be honest with your lawyer; 4) be a good client and provide your attorney with the information he needs to effectively represent you; and 5) decide who needs representation.
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