On Nov. 29, 2018, the Department of Justice announced a revised approach to assessing corporate cooperation credit.
As announced by Deputy Attorney General Rod Rosenstein, cooperation credit is now conditioned on corporations identifying “every individual who was substantially involved in or responsible for the criminal conduct.” This marks a pivot from the 2015 Yates Memorandum, which required corporations to identify all individuals involved or responsible as a requisite for cooperation credit.
Notwithstanding the policy shift, as the number of individual enforcement actions brought by DOJ, the U.S. Securities and Exchange Commission (SEC) and other enforcement agencies continues to rise, companies remain strongly incentivized to investigate and identify individuals substantially involved in any alleged misconduct.
In this context, the interests between the corporation and an individual can quickly diverge. Thus, corporate executives with some meaningful nexus to the conduct in question are very likely to need separate representation.
Suppose there is a government investigation of a corporation and you have been retained to represent an executive of the corporation. Where do you start?
1. Discussion with Company Counsel
Typically, one of the first steps in an individual representation after being engaged by your client is to speak with company counsel. This is particularly important when your client is a current employee, and/or the company has agreed to indemnify your client.
Objectives of this meeting or discussion often include: (1) gathering background information, including when and how the investigation commenced, the enforcement agencies involved, and the status of the investigation; (2) whether and to what extent the company is conducting a parallel internal investigation; and, (3) understanding your client’s potential involvement and exposure.
2. Meet With Your Client
When you first meet with your client, keep in mind that your client will likely be completely overwhelmed being involved in any capacity in a government investigation. You should assume that your client has no familiarity with government investigations.
Provide your client with an overview of the investigative process, your role, and the relationship with company counsel. When describing your role, explain that you represent the client, not the company, and the value of separate representation.
The conversation regarding the investigative process should cover a general overview of government investigations, including the potential misconduct at issue, the typical timeline for government investigations of similar scope and size, litigation strategy to consider, and the potential outcomes.
If your client is a current employee, the individual should be made aware that he/she is likely required by their employment to cooperate with the investigation. If your client is a former employee, discuss whether cooperation is warranted (e.g. the company is paying for the legal representation) and weigh the benefits against potential issues that may arise based on the indemnification.
Moreover, during the meeting with your client, seek information to understand your client’s role in the organization to ascertain how your client fits in the investigation. After understanding your client’s role in the investigation, evaluate your client’s potential exposure or the degree in which your client’s potential testimony would be helpful to the government’s investigation.
The decision whether to cooperate may need to be made sooner rather than later.
3. Consider Whether to Engage in an Initial Discussion with Government
Consider whether to proactively contact the enforcement agency to introduce yourself as counsel for the executive. Doing so depends on the posture of the investigation, your client’s potential exposure, and any prior communications between company counsel regarding your client.
Remember that it is not always prudent to advertise that a decision was reached regarding the need for individual representation. If such a conversation does occur, be sure to lay the groundwork for a relationship grounded in trust and responsiveness. Try to better understand the focus of the investigation and glean where your client falls in the investigation (e.g., target, subject, or witness).
As with any representation, it is important to become a subject-matter expert. Gather information regarding the who, what, where, when, and how of the alleged conduct. Doing so typically involves some combination of: (1) document review, (2) client meetings, (3) independent research, and (4) potential conversations with counsel for other individuals.
- Document Review. Much of the fact-gathering involves reviewing company documents. Obtain access to documents, which likely involves working through company counsel.
- Client Meetings. After reviewing key documents, walk through them with your client. The objective is to add context to potentially problematic documents and to develop an overarching thematic timeline of the issues pertinent to the investigation. These meetings also serve as good preparation for future meetings with company counsel and/or the government.
- Independent Research. In an individual representation, it is important to understand how your client fits into the bigger picture. For example, you want to learn about how the business runs and operates, the corporate structure, key decision makers, the challenges faced by the company, as well as the company culture. You will also want to understand whether the company or your client has been the subject or target of prior government investigation.
- JDA Communications. As part of the fact-development phase, consider discussions with counsel for other individuals under a Joint Defense Agreement (JDA). Prior to engaging in JDA communications, determine if there is sufficient common interest among the individuals (to protect communications as privileged) as well as if and when the interests may diverge. Typically, one of the biggest benefits of a JDA is sharing knowledge and updates about the investigation, which can aid in the preparation of your legal strategy.
1. Internal Investigation
Company counsel may request an interview with your client in connection with its internal investigation. If possible, try to get a preview from company counsel of the topics and documents they are looking to review with your client.
In the event you agree to the interview, explain to your client what the interview will look like, your role during the interview, categories of information they are likely to seek, the types of questions they will ask, and how the client should approach the interview. You should also review key documents with your client. During the interview, be observant and try to glean from the line of questions, the key issues and potential areas of exposure.
2. Government Investigation
It is possible the enforcement agency responsible for the government investigation will request some type of interview with you or your client, dependent on the perceived relative culpability of your client.
There are various types of government interviews: some that require the presence of your client, some that do not, and some that are more formal than others.
- Attorney Proffer. The attorney proffer is where counsel for the client presents to the government facts gathered from the client. Oftentimes the facts included in the proffer are based on specific questions from the government. An attorney proffer is done without the presence of the client.
- Witness Proffer. The witness proffer is where the client, accompanied by counsel, voluntarily meets with the government and answers any questions directly. Witness proffers are not conducted under oath, but note that the information provided by your client could be used against your client in certain circumstances. Prior to agreeing to a witness proffer, consider negotiating the scope and subject matter of the meeting as well as a written agreement to obtain assurance that your client’s words will not be used against them in future proceedings (i.e., a proffer letter).
- CID Testimony. The government may, under a Civil Investigative Demand (CID), request oral testimony from the witness under oath. The CID describes the general purpose for which the demand is being issued and the general nature of the testimony. This format has serious ramifications as the testimony can be impeachable and admissible in future proceedings, including a criminal proceeding. Counsel for an individual is present when CID testimony is taken.
- Testimony pursuant to a Grand Jury Subpoena. This is the most formal form of an “interview” and presents the most risk for your client. If a grand jury subpoena is issued, it may indicate that the government views your client as a potential target and is seeking to develop evidence against your client. Counsel is not permitted to accompany the client to the grand jury room.
If your client has sufficient legal exposure to warrant prosecution or a formal resolution, there are a number of ways the government can proceed. The worst-case scenario is an indictment against your client.
The best-case scenario is a formal declination of prosecution. For those scenarios where the government determines that it lacks evidence to bring a successful case against your client, or if other mitigating factors dissuade the government from filing charges, it may offer other alternative forms of adjudication, such as a non-prosecution agreement (NPA), or a deferred prosecution agreement (DPA).
- NPA. The government agrees not to file charges against the defendant but reserves the right to restart the case and use the defendant’s admissions in a subsequent case if the defendant breaches the NPA. An NPA typically requires the defendant to comply with certain conditions, including continuing cooperation with the government. An NPA does not typically require an admission of wrongdoing.
- DPA. Under a DPA, the government grants amnesty in exchange for the defendant’s agreement to provide full cooperation in the investigation and to fulfill certain requirements under the agreement. In contrast to an NPA, the government files criminal charges in court against the defendant but agrees to waive the charges once the defendant meets the terms of the DPA.
When considering potential resolution options, counsel should inform the client of future obligations as required by the resolution. For example, consider whether your client would be required to testify in a potential trial or take on remedial measures such as disgorgement or suspension from the industry.
In addition, inform the client of how the resolution may affect his/her employment and other potential collateral consequences that could stem from the resolution. Be sure to understand when you would need to involve an employment lawyer to review and evaluate employment-related ramifications.
There is no one-size-fits-all approach to individual representation in the context of a government investigation. While this article has set forth an overview of common procedural steps, there are many factors that affect your approach and strategy.
Representing individuals requires counsel to carefully navigate competing interests and develop a strategy that considers potential exposure, adverse employment consequences, and collateral consequences.
John E. Kelly is a member at Bass, Berry & Sims PLC and also serves as managing partner of the firm’s Washington, D.C., office. He represents companies and individuals in internal investigations, government investigations, criminal prosecutions, and civil litigation in matters related to various enforcement, regulatory, and compliance issues, including those involving health-care fraud and the Foreign Corrupt Practices Act. He can be reached at email@example.com.
Lindsey Fetzer is a member at Bass, Berry & Sims PLC in the firm’s Washington, D.C., office. She focuses her practice on white collar and corporate compliance matters, including health-care fraud and abuse issues, representing clients in foreign and domestic matters involving the DOJ, the SEC, and other primary enforcement agencies. She can be reached at firstname.lastname@example.org.
Abby Yi is an associate with Bass, Berry & Sims PLC in the firm’s Washington, D.C., office. She works with clients on white collar and corporate compliance matters. She can be reached at email@example.com.