The government loves to visit subjects and targets of its investigations. Why? They get access to individuals and information without counsel's presence and the ability to ask questions and learn new information.
In today's environment, every company should be prepared. Every possible occurrence should be anticipated. The government may approach executives and officers at their home for a 730 am chat, may serve a grand jury subpoena anytime during the day, may show up early in the morning with a search warrant in hand, or may be ready to hand cuff officers and make sure the press is there to see the "perp" walk. Former US Attorney Rudy Guliani was famous for conducting mass arrests in white collar suites with plenty of press to watch, film and report.
How do you prepare for the government's visit?
Many of these ideas seem obvious but it is surprising how many companies have no protocol in place. They just cannot believe that anything will happen to them.
Every company should:
-- Identify now all the potential persons who may need to be notified quickly in the event of a crisis.
-- For each person, identify a backup person.
-- For each person, obtain work, home and cell numbers.
-- Update the call list regularly. Keep the call list in a place where it is easily accessible 24 hours a day (and not dependent on computer access).
Within the company, the list should include: In-house Counsel; CFO/Treasurer/Senior Management; Investor Relations/Corporate Communications personnel; Security personnel; and Key HR/IT Personnel.
Outside the company, the list should include: Outside Counsel; Media Relations Consultants; Crisis Management Consultants; potentially Auditors; and IT Specialists.
If the government shows up with a search warrant in hand, the company must act quickly. The agents will not only be searching through every location where the documents may exist, but they will be conducting on-the-spot interviews of employees.
Employees need to understand how to examine a search warrant, understand the limitations and their rights under the search warrant. In case the agents want to search an area not covered under the search warrant, employees need to know how to respond to a request for consent to search. Most importantly, employees need to delay the search as much as they can so that counsel arrives on the scene. On-the-spot interviews need to be limited -- non-essential employees can be sent home and remaining employees can be advised of their rights by counsel.
Counsel and employees can seek information from the government agents; monitor the search; and learn how to preserve and protect possible privilege claims.
After the search is completed, counsel needs to conduct a post-search inventory and debriefing to gather as many clues and tips as to the nature of the federal investigation.
I think companies must have policies to clearly lay out roles and responsibilities in a crisis. I used to call it the SHTF policy (the last three letters are "hits the fan.")
ReplyDeleteIt had another name on the books, of course.
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