TRACE International
When Law Enforcement is at Your Door
By Mark A. Rush, Kirkpatrick & Lockhart Preston Gates Ellis LLP
I
n this era of aggressive corporate investigations, businesses
must prepare for the reality of federal agents or other law
enforcement officers appearing at their reception desks
with questions, requests for documents, and even search
warrants. Companies should ensure that any contact with law
enforcement is handled professionally and does not waive any
privileges or violate individual privacy rights.
Having a response policy in place
A company should establish a response policy and
communicate it to all employees, especially receptionists,
executive secretaries, and others whom law enforcement
agents are likely to approach first. This policy should identify
a designated person (DP) to respond to all requests. The DP
should be an individual with a significant degree of authority
and responsibility, and the policy should include a plan for
reaching the DP in the event of an investigation.
The initial contact
The government may initiate contact by telephone, a visit, or a
civil investigative demand (CID) or administrative subpoena.
The first interaction between law enforcement and the
corporation often sets the tone for the investigation, its scope,
and law enforcement’s willingness to make accommodations
based on a corporation’s time and staffing concerns.
6) Ask why the investigation was initiated.
7) Indicate to the agents the corporation’s intent to cooperate fully.
8) Explain that any substantive inquiries must be directed to counsel.
9) Provide the agents with counsel’s contact information and (a) in the case of a request, promptly make arrangements for the agents to speak with counsel; (b) in the case of a CID or subpoena, explain that
counsel will review the CID or subpoena so the
company can comply fully and promptly with the
demand without compromising its rights or the rights
of employees, clients, and customers; (c) in the case of
a search warrant, make clear that the agents will not
need to wait for counsel’s involvement and state that
the company will comply with any authorized
demands immediately. In addition, the DP should
notify the corporation’s counsel, read and obtain a
copy of the warrant, not agree to any search broader
than it authorizes, and raise the issue of retention of
counsel for all employees.
A response plan should include these steps for the initial
contact:
Other issues of concern
A company and its agents must consider many other issues
that, if not handled correctly during the response to an
investigation, may expose the company to collateral liability
or other business losses, including:
1) The person who is contacted should contact the DP immediately, advising of the request and presence of the agents.
2) If agents are physically present, they should remain in the reception area until the DP can greet them.
3) The initial contact person should not give the agents the name or office location of anyone except the DP.
During this initial contact, the DP should immediately take
the following steps:
1) 2) 3) 4) 1) Ascertain the identity of the agents and their agencies.
2) Ask to see the agents’ credentials—the privacy rights of a company’s employees and clients demand it.
3) Ask for business cards; if none are available, record the agents’ names and phone numbers.
4) Inquire as to the nature of the agents’ visit.
5) Ascertain the identity of the prosecutor assigned to the investigation.
Mark A. Rush (mark.rush@klgates.com) is currently a Partner
with the law firm Kirkpatrick & Lockhart Preston Gates Ellis
LLP and has defended corporations and individuals subject to
grand jury investigations and investigations by the SEC, EPA,
FTC, FDA and other agencies. The above guidelines have been
excerpted from ‘Corporate Responses to Investigative Requests by
the Federal Government’, by Mark A. Rush. The complete white
paper is available at www.klgates.com.
Preserving privilege and protecting privacy: the
company must not waive any potential privileges such
as attorney-client privilege, work product privilege,
doctor-patient privilege, and Fifth Amendment
privilege. The company must also protect the privacy
rights of employees, clients, and/or patients.
Protecting trade secrets and proprietary information
Managing public relations
Deciding whether to perform an independent
investigation
TRACE • Winter 2007-08 • Page www.TRACEinternational.org