It doesn’t matter whether you are at the opening stages of a “routine” audit or federal agents have raided your offices, whether you think you are completely in the clear, or you are certain that you are guilty. From now on, every decision you make needs to account for the government’s investigation.
This is a lot of information, but it’s very important.
From healthcare to investment advisory services, businesses and professionals in many industries are subject to strict federal oversight. Your company is being monitored on a constant basis if it is subject to federal reporting requirements or does business with the federal government. Thanks to data analytics software, federal agencies can sift through your information around the clock. All it takes is one anomaly or outlier to trigger a closer review of your company.
From the U.S. Department of Health and Human Services (DHHS) to the U.S. Securities and Exchange Commission (SEC), federal oversight agencies face an extraordinary burden. So, it definitely means something when one of these agencies singles your company out. It means someone has decided that it is worth dedicating the time and resources to take a closer look into your company. It also means that you owe it to yourself, your employees, and your shareholders to make sure the inquiry is resolved quickly, discreetly, and as favorably as possible.
AT THIS POINT, THE FEDERAL GOVERNMENT ALREADY HAS THE UPPER HAND
So, what do you know about the federal government’s investigation? At this point, probably not much other than the fact that it exists. You might know more for example, if you are a DEA-registered health provider, you might know that the DEA conducts routine inspections to verify compliance but you could also be making assumptions. Is it really just another routine inspection? Or, has some piece of information or a new federal law enforcement initiative triggered a more-targeted inquiry? Additionally, even if it genuinely is a routine inspection, are federal agents going to come across information that could potentially have criminal implications?
Furthermore, federal authorities know exactly what they are doing. They know what they are looking for, and why; and they know exactly when and how they plan to let you in on it. This means that you need the experience to match theirs if you are going to defend yourself effectively.
MISTAKES TO AVOID IF YOU ARE IN THE FEDERAL GOVERNMENT’S CROSSHAIRS
When your business or practice is under investigation, there really isn’t much of a middle ground the decisions you make can either help or hurt your defense. Even when it comes to going about your daily business, you are either affirmatively demonstrating compliance, or you are continuing to make mistakes that can lead to charges, fines, and other penalties.
Along with these types of operational mistakes, there are strategic mistakes you need to avoid as well. For example:
MISTAKE #1: ENTRUSTING YOUR CASE TO AN ACQUAINTANCE OR FAMILY FRIEND
As a business owner, executive, or professional practitioner, you probably know a few attorneys. You likely have family friends who are attorneys, and they are likely all very good at what they do.
However, unless they are the best federal defense lawyers, they aren’t going to have the skills you need.
Litigation is very different from transactional practice, and civil litigation is very different from criminal defense. In many ways, the chasm between state and federal criminal defense is even wider. Federal defense is an extremely niche area of practice, and it is one area in particular where it is essential to have highly relevant experience. If you are dealing with a team of FBI agents and DOJ lawyers who have all spent their entire careers in civil service, you need your lawyers to understand how they think and be able to anticipate their next moves. You also need your lawyers to be intimately familiar with the federal laws and constitutional principles that will be fundamental to your defense.
If a lawyer is willing to take your case, doesn’t that mean they believe they have the wherewithal to represent you effectively? No, in the federal realm, this is not necessarily the case. In many instances, it is a matter of not knowing what they don’t know. The federal legal system is incredibly complex and the federal investigative and criminal justice processes are so unique that most lawyers ––in fact, the vast majority of lawyers–– do not know exactly what is involved in federal defense practice.
In addition to the best lawyers with relevant legal experience, it is also helpful in most cases to have consultants with federal law enforcement expertise. Former FBI who spent decades on the ground can provide valuable insights into the investigative process. At The Justice Foundry, we focus our practice on federal defense, and we have built our defense team accordingly.
MISTAKE #2: CHOOSING A LAW FIRM BASED ON LEGAL MARKETING, NOT LEGAL SKILLS
Legal marketing is a huge business. Today, any law firm with a website and an advertising budget can get clients in the door. It seems there’s no need for making connections and establishing a reputation anymore.
Of course, however, getting clients in the door and effectively representing them are two completely different matters.
In federal defense practice, experience matters. Not just experience, but relevant experience. While any law firm can market itself to prospective clients in a particular practice area, it calls for a particular set of skills that have been honed over years, if not decades, of practice to be able to make informed and confident decisions amidst a federal investigation.
MISTAKE #3: HIRING LAWYERS WHO DON’T UNDERSTAND YOUR BUSINESS OR PRACTICE
There are two main reasons why it is important for your lawyer to understand your business or practice in federal matters. First, the time spent learning about your business or practice is time that is not spent building and executing your defense Second, you can ––and will–– be billed for the time spent learning about your business or practice.
In order to provide effective and efficient legal representation, the best federal defense lawyers must have two discrete bodies of knowledge. Not only must they have in-depth knowledge of the relevant federal statutes, regulations, and case law, but they must also have a strong understanding of the client’s business. While there’s always an unavoidable learning curve (i.e. to understand the company’s policies and procedures and get to know key personnel), what a lawyer should not need to spend time on is learning about the client’s industry and the nature and extent of federal oversight involved.
When your business or practice is being targeted by the federal government, you need your legal team to hit the ground running. You need your lawyers to be asking the right questions while proactively advising you and your key personnel about the risks triggered by the investigation. You need your lawyers to be able to understand your company’s or practice’s records, and you need them not to stumble from lacking the knowledge necessary to execute an effective defense strategy that is curated to your specific situation.
MISTAKE #4: EXPECTING YOUR LEGAL TEAM TO HANDLE THE ENTIRE PROCESS FOR YOU
You need your lawyers to be able to intervene in the federal government’s investigation and communicate effectively with federal agents and prosecutors on your behalf, but you should not expect to hand over full control of your case.
Although it may be tempting to pass everything off and get back to business as usual, the reality is that you do not want your lawyers working without you. You want them working and collaborating with you and your key personnel. This means asking questions, exploring potential lines of defense, and making sure everyone is on the same page when it comes to protecting your business or practice.
At The Justice Foundry, when we talk about our client’s “defense team,” our client is a key member of that team. It’s a cliché, but we really do get to know our clients personally. During the most active stages of your case, we will be in contact with you every day. We will keep you informed, make sure you agree with the approach we are taking, and seek your input when necessary. If our respective opinions about how to best approach your case diverge for any reason, this is an issue that we will want to address as rapidly as possible so that we can maintain a synchronized, cohesive defense. When you choose our firm to represent you, you can expect:
- Clear explanations of legal issues and options that you have available
- Immediate consultation and 24/7 accessibility
- Proactive advice regarding compliance and risk mitigation
- Regular communication with the attorneys and consultants handling your case
- Thorough analysis and careful recommendation of defense strategies
MISTAKE #5: MAKING ASSUMPTIONS AND UNINFORMED DECISIONS ABOUT YOUR DEFENSE
Lastly, this was mentioned earlier but it bears repeating: Making assumptions and uninformed decisions is one of the biggest mistakes you can make during a federal case or investigation. There are two primary reasons why.
First, you may wind up defending against something that doesn’t need to be defended against. When you find out that you are being targeted by federal authorities, the chances are that you will not know why. While your gut reaction may be to respond immediately, if you start defending against the wrong allegations, you might end up doing more harm than good.
Second, if you are defending against the wrong allegations, then you aren’t defending against the right ones. If you put your efforts toward pursuing an inappropriate (and potentially harmful) “defense” strategy, you are wasting time and resources that you could have used much more effectively.
There are other potentially harmful implications to making assumptions and relying on inaccurate or incomplete information as well. These dangers include, but are not limited to:
- You could unnecessarily disclose information that aids the government’s investigation
- You could unnecessarily disclose information that leads to new lines of inquiry
- You could get further behind as federal prosecutors continue to build their case
- You could miss opportunities to target a pre-charge or pre-trial resolution
- You could waive crucial constitutional protections and statutory privileges
Ultimately, achieving a favorable result requires proactive and strategic decision-making based on the advice of experienced legal counsel. Even if you are absolutely sure that you have nothing to hide, convincing federal authorities that this is the case is a completely different proposition. If your business or practice is facing a federal case or investigation, it is critical that you have experienced federal defense counsel. I know because I have seen the results first-hand. I have seen the impressive work that our team does for our clients, and I have also seen what happens when business owners, executives, and professionals make the wrong decisions.
