TACTICAL CONSIDERATIONS FOR EFFECTIVE REPRESENTATION DURING A GOVERNMENT INVESTIGATION (FROM DEFENDING CRIMINAL CASES, 1979 - SEE NCJ-62376)

• NCJ Number: 62379
• Author(s): D C SMALTZ
• Date Published: 1979
• Length: 90 pages
• Corporate Author: Practicing Law Institute
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: REPRINTED FROM THE 1979 ISSUE OF THE AMERICAN CRIMINAL LAW REVIEW

Annotation

WITH THE CURRENT EMPHASIS ON PROSECUTION OF WHITE-COLLAR CRIME, IT IS IMPERATIVE THAT A LAWYER WHO REPRESENTS A CLIENT UNDER INVESTIGATION BY ANY AGENCY KNOW THE EXTENT AND FOCUS OF THAT INVESTIGATION.

Abstract

ALTHOUGH INVESTIGATION MAY APPEAR TO BE ONLY CIVIL, MANY FEDERAL AGENCIES WITH REGULATORY AUTHORITY CAN ALSO MAKE CRIMINAL REFERRALS TO THE DEPARTMENT OF JUSTICE. ONCE THE CASE IS IN THE PROSECUTOR'S OFFICE AND THE GRAND JURY'S SUBPOENAS HAVE BEEN ISSUED, CLIENTS MUST DEPEND ON THEIR COUNSEL TO AVOID INDICTMENT, ASSUMING THEY HAVE NOT BEEN GRANTED IMMUNITY FROM PROSECUTION. IN ORDER TO CONVINCE THE PROSECUTOR THAT AN INDICTMENT SHOULD NOT BE ISSUED, THE COUNSEL NEEDS TO LEARN AS MUCH AS POSSIBLE ABOUT THE NATURE AND EXTENT OF THE GOVERNMENT'S INVESTIGATION, THE EVIDENCE COLLECTED, THE THEORY OF THE PROPOSED PROSECUTION, AND THE 'TRUE FACTS' FROM THE CLIENT'S PERSPECTIVE. THIS ARTICLE DISCUSSES THREE GENERAL AREAS IN WHICH COUNSELS MONITORING A FEDERAL INVESTIGATION MAY ENCOUNTER PROBLEMS: (1) DEALING WITH GOVERNMENT COUNSEL, (2) GATHERING DEFENSE INFORMATION, AND (3) LITIGATION WITH THE GOVERNMENT OVER THE PROPRIETY OF THE PROCESS BEING USED IN ITS INVESTIGATION. BECAUSE LEGITIMATE MONITORING ACTIVITIES MAY RAISE ISSUES CONCERNING THE OBSTRUCTION OF JUSTICE, THE ARTICLE ALSO DISCUSSES THE PRIMARY FEDERAL STATUTES WHICH LAWYERS SHOULD KNOW TO AVOID COMMITTING A CRIMINAL VIOLATION WHILE REPRESENTING THEIR CLIENTS. FOOTNOTES ARE INCLUDED. (AOP)