If you are approached by an FBI agent, a U.S. Postal Inspector, an agent from the IRS Criminal Investigations Division, or any other agent of the government, what should you do, or not do?
First, do not talk to other people, other than a lawyer, about the fact that you believe you are under investigation or about the facts surrounding the apparent investigation. Remember, the people with whom you speak can be compelled to testify and what you say to those people can be used against you. Secondly, you do not want to say or do anything that might be construed as an obstruction of the investigation, such as telling a potential witness to lie or trying to get your “facts together.”
Statements you make to an attorney, on the other hand, are privileged and confidential. You can and should speak freely about the matter with an experienced federal criminal defense attorney so that you can determine the best course of action in light of the investigation.
Secondly, NEVER destroy or modify documents pertinent to the investigation. Again, this is obstruction of justice, which is a separate crime. This includes documents and files stored on a computer. However, you should make copies of any and all documents and/or computer hard drives that you believe to be pertinent to the investigation to review with your attorney.
I would strongly urge you to consult an attorney before making a decision to speak with a government investigator or agent, but if you do decide to make a statement to an investigating agent before any such consultation, don’t lie. Lying to law enforcement or to a grand jury is a separate crime that can be charged and will only make matters worse in terms of the underlying investigation.
WHY ITS IMPORTANT TO HIRE AN EXPERIENCED ATTORNEY
If you become aware that you are under investigation by a federal agency, it is essential that you talk to a lawyer familiar with federal criminal practice and federal investigations. You should, if possible, hire such an attorney before you decide whether to speak with investigators.
An experienced lawyer will help you to determine what your potential exposure might be, whether you could benefit from speaking with the government, and whether it will be possible to cooperate with the government to lessen your exposure to criminal charges.
If you have already talked to the agents prior to meeting with an attorney, knowing what you said will be very important for your lawyer. Sit down, and write a memo of what was said and what documents, if any, were reviewed. At the top of every page of your memo be sure to write or type “Attorney Client Privileged” and, at the start of your memo or note, explain that these notes are for your attorney. Try to include all details of the meeting in the memo, and add to the memo if you later recall additional facts from the meeting. Be sure to include everything you can remember. You might not realize that something you thought was unimportant was actually a very important detail.
If a prosecutor is already involved in the case, your attorney can reach out to the prosecutor to determine the status of the case. Most importantly, your lawyer will want to know whether you are being treated as a witnesses, subject, or target of the investigation. Remember, however, that your status can change. You can start out as a target, but, if the government learns more about you, they can decide you are merely a subject or a witness, or the reverse can happen. Your lawyer can determine the best course of action depending on your status and the information he/she learns in the course of your representation. A good lawyer will take a lot of time familiarizing him/herself with the facts/circumstances of the case to give you the best possible legal advice under the circumstances.