Representation of Persons in Connection With the Federal Investigation of White Collar Crimes (From White Collar Crimes, P 207-233, 1980, Gary P Naftalis, ed. - See NCJ-78913)

• NCJ Number: 78919
• Author(s): T P Sullivan; R A Spanner
• Date Published: 1980
• Length: 27 pages
• Sale Source: American Law Institute-American Bar Assoc
• Language: English
• Country: United States of America

Annotation

This paper presents principles and guidelines for use by defense attorneys in representing persons in connection with the Federal investigation of white-collar crimes, with emphasis on the need to develop strategy and tactics tailored to the specifics of each case.

Abstract

Representing a client in a white-collar case differs from representation of persons charged with street crimes in that intent or knowledge is more important, the evidence is qualitatively different, and there is more prosecutorial discretion. Attorneys must determine whether they will have a conflict of interest when asked to provide joint representation for colleagues or employees of a prospective client. However, multiple representation can work to the benefit of all those represented. Before attorneys decide whether to follow the course of noncooperation, cooperation in exchange for immunity, cooperation without immunity, or a negotiated plea, they should conduct a thorough investigation of the facts and the law. Counsel should then confer with the prosecutor to determine the alternatives available to the clients. Clients should be instructed to make no statements and to refer all inquiries to counsel, to avoid the potential for a false statements prosecution. When a client receives a subpoena, counsel should carefully determine which documents come within the scope of the subpoena. Clients should be strongly discouraged from removing or destroying documentary evidence. Clients should make an informed choice regarding the defensive posture to take, since they will live with the consequences. If the client has openly avowed participation in a criminal transaction, immunity in return for cooperation should be sought. In a few cases, cooperation without immunity may be desirable. If it is decided not to cooperate, strategies include use of the work product privilege, establishing that unlawful witness surveillance occurred, and interposition of the privilege against self-incrimination. The unsettled status of the law on many issues and the uniqueness of each case pose a challenge to the defense attorney. A sample grant of immunity and footnotes with references are provided. For related materials, see NCJ 78913.