Nothing can be more stressful than having your business be the subject of a criminal investigation. The investigation itself can have serious ramifications for employees, result in lost business as well as interrupt typical business operations. With so much on the line, your business and your freedom, it is wise to contact legal counsel as soon as you have any indication a criminal investigation may be underway.
How does an environmental criminal investigation get initiated?
- Disgruntled former employees call investigators
- A current employee contacts authorities with information
- A witness or citizen contacts investigators and makes a complaint
- Sampling performed detects a significant problem
- Regulators notice inconsistencies in record keeping
- A significant event- a major spill, improper disposal of drums or dumping
The first time you may learn your company is the subject of a criminal investigation is when agents show up at your business with a criminal search warrant.
How you respond to a warrant or subpoena can have serious ramifications. Here are some key tips to keep in mind:
- Contact Legal Counsel Immediately- While legal counsel will not interfere with the execution of a warrant, they can ensure agents adhere to the scope of the warrant. They may also be able to observe the agents and see what pictures or documents they take during execution of the warrant.. Even if you believe you have nothing to be concerned about, owners and/or senior executives should not be interacting with agents. Attorneys can make sure during execution of the warrant the company demonstrates the proper level of cooperation without exposing their client to unnecessary risk.
- Information Regarding the Agents and Purpose of Investigation- Business cards should be requested from the lead agent and/or all agents conducting the search. The attorney should open up a line of communication with the agents regarding the scope of the criminal investigation.
- Scope of the Warrant- Read the warrant or subpoena carefully. Determine which portions of the facility and documents are covered. Does the warrant allow for the seizure of computers or other equipment? It is important that investigators are limited to the scope to the warrant.
- Do Not Interfere with the Warrant- Trying to prevent agents from taking items covered by the warrant or preventing access to records can result in obstruction of justice charges.
- Inventory of Seized Items- Request a copy of the inventory of seized times so you know what was taken during execution of the warrant.
How do you respond if the agents seek to interview employees during execution of the warrant?
This can be a complicated issue and should be left to your legal counsel. The owner of the company or senior executives should not and cannot instruct employees to not talk with investigators. Such directives from senior management could be deemed as improper, or even illegal by the agents. Employees can be informed they have the right to speak or not to speak and can also request that individual legal counsel be present before being questioned.
Who exactly an attorney may represent in a criminal matter is much more complicated than a civil case. Generally, in an environmental criminal investigation, an attorney cannot ethically represent the company, owners, senior executives and all the employees of the company. At best, one attorney can represent the company and senior executives and a separate attorney/firm would be retained to represent all non-target employees who desire the assistance of counsel. ("Target"- means an employee identified by investigators as possibly guilty of a crime) Depending upon the circumstances, each owner and or senior executive may even need separate counsel. This separation is important to avoid any conflicts that may arise between those that may have criminal culpability, and those that do not.