Not all criminal cases or civil actions brought by the Government start with an arrest or the filing of an enforcement action. Frequently, you find out that you are under a Government Investigation well in advance of an arrest or the filing of a lawsuit against you. As soon as you believe that you are under investigation, you need to consult and retain an experienced criminal defense and/or regulatory attorney. If the Government has been investigating you for months, if not years, time is of the essence and you need to be proactive in finding counsel and getting them up to speed on what you believe the investigation relates to.
How Do I Find Out if I Am Under Investigation?
The method by which you find out that you are under Government Investigation depends in large part by which agency is investigating you. Typically, you find out that you are under investigation in one of these ways:
- You receive a Grand Jury Subpoena compelling your testimony or a production of documents before a Grand Jury signed by a local prosecutor, an Assistant Attorney General or an Assistant U.S. Attorney;
- You receive a target letter that states that you are a target of an ongoing Grand Jury (most common in federal court);
- You receive a Subpoena from the Securities and Exchange Commission compelling a production of documents, and potentially On-The-Record Testimony;
- You are notified by your email provider, or a social media platform that a while ago they provided information pertaining to your email or social media account to the Government in response to a search warrant or a subpoena;
- Agents, investigators or police officers show up at your house, or your job seeking to speak to you;
- You find out that other individuals that may have involvement in your case are being contacted, interviewed or have been arrested.
A very brief description of what a federal investigation entails can be found on the Department of Justice’s website.
What Should I Do If I Find Out That I am Under a Government Investigation?
When you find out that you are under investigation by the Government, it is important to stay calm and limit the number of people you discuss the Subpoena or the agents making contact with. Although it is natural to share and try to get opinions and insights of other people into your situation, it can do more harm than good at this stage.
Do Not Discuss the Investigation or Case with Anyone
There are two main reasons why discussing the fact that you are under investigation may not be in your best interests. First, unless you have privilege in your communications with the other party, the other party can be subpoenaed to disclose the conversations that you’ve had with them about the case, or after finding out that you were under investigation. Certain communications are privileged, such as those with your attorney or your physician or therapist. Although spousal communications are generally privileged, that privilege can be waived and therefore is not as strong as attorney-client or physician-patient privilege.
The second reason why you should not discuss the matter with anyone is that you do not know if anyone has been approached by the agents yet. It is very possible that the other individuals involved in your case have already been interviewed by the agents are are currently cooperating. Potentially cooperating against you. It is also possible that down the road, you may consider cooperating on the case against others. Reaching out to your co-conspirators or other individuals with knowledge of the case, may eliminate cooperation as an option for you down the road. Although cooperation doesn’t make sense in every case, we still try to preserve that option for the client, in the event it is determined to be the best course of action down the road.
Be Strategic in Thinking About the Case and Evidence
As you start thinking about the case, it would be useful for you to figure out what evidence or documents may exist. This applies to both problematic materials and evidence, as well as evidence that can be beneficial to your case. Generally, our recommendation is that you don’t write anything down during this strategy phase. If you are inclined to write things down, you may want to use a separate notebook and label the cover and every single page as “Attorney Client Privileged Document.”
Do Not Delete or Destroy Any Evidence
If you are thinking that you now have advance notice that you are under investigation, and thus can use this advance time to destroy evidence, delete emails or encourage witnesses to provide the investigators with false information, DO NOT DO IT. Chances are, the Government has already filed preservation orders with your email provider, social media platform and cell phone carrier, thus deleting any documents or materials will have absolutely no use.
Additionally, the prosecutors have a theory of prosecution called consciousness of guilt. That means, if there is a change in your behavior after finding out that you are under investigation or after your arrest, that change in behavior can be used against you at trial. Thus, to the extent that you are able, do not delete or destroy any evidence or speak to anyone you believe may be testifying against you at trial.
Interview and Retain An Attorney
Who you hire to represent you is probably the single most important decision you can make for your case. Here is some guidance on interviewing and retaining private counsel.
Should I Talk to the Agents or Produce Documents Before I Have An Attorney?
No, you should not talk to the agents or produce any documents before retaining an attorney. Although the agents may make it seem like there is urgency in speaking to them, and if you don’t come in immediately, you will lose any opportunity to meet with them and talk to them about your case. That is simply not true. Almost always, the option to come in and meet with the agents and the prosecutors is on the table, even if it happens much later in the case.
Additionally, it is important to have someone review the documents you are providing to the Government. Some of the documents can be withheld on the basis of privilege or because they are not responsive to the Subpoena. Furthermore, some agencies, like the Securities and Exchange Commission have a very specific format in which they would like to receive documents and how the documents should be organized and labeled. Spending money on an attorney to help you with the production will save you many headaches down the road on how the documents are to be submitted.
What Happens After You Find Out You Are Under Investigation?
There is no specific course of action that happens after you find out that you are under investigation. Usually, you retain an attorney and your attorney makes contact with the case agents and with the prosecutor to confirm that you have retained counsel. This is done so the agents don’t attempt to question you and in the event they are looking to arrest you, they now know that you have an attorney who will coordinate your voluntary surrender.
Your attorney will probably have several meetings with you and request any documentation or evidence that you have. This is done so the attorney gets up to speed and is in a better position to figure out if it makes sense to meet with the prosecutor during this Government Investigation stage. In some situations, coming in and talking about the case either in an attempt to talk the prosecutor out of charging you, or attempting to resolve your case very early on makes sense. In cases where it is tough to determine what the case is about and how much the prosecutor and the agents know about the case, and your involvement, it may be best not to go in at all.
How Long Do Government Investigations Take?
There is no set duration for how long Government Investigations can take. Usually, the range is a couple of months to a couple of years. The duration of a government investigation depends on the length of the period that they are investigating, as well as the number of people under investigation and the scope of the conduct investigated.
Do I Ever Find Out If I Am No Longer Under Government Investigation?
No, unfortunately you don’t find out when the Government Investigation is over. The only way to tell is that the agents stop contacting you or your attorney, and the case goes dormant. Although some clients are very anxious about not knowing about the status of their Government Investigation, reaching out to the agents and the prosecutor is not recommended.
That is because the agents and the prosecutors have many cases that they are investigating and overseeing. In some situations, investigations get wrapped up because more pressing matters come in. By not initiating contact with the U.S. Attorney’s Office or the prosecutors, we are ensuring that the agents’ and the prosecutors’ attention is directed to other cases.
Contact Experienced Government Investigations Attorneys Today
If you or your loved one have questions regarding government investigations, or need representation, please call us at 212-729-9494 or contact us today to schedule your initial consultation. We have represented numerous clients on state and federal criminal as well as civil investigations and are happy to share our knowledge with you.