Whether arriving as a “dawn raid,” an agent’s knock at the door, or service of a civil subpoena, government contacts often come out of the blue and always involve high stakes. A swift and careful response is critical to ensuring the company’s legal rights are preserved, potential damage is contained, and reputational harm is minimized. Maintaining transparency and cooperation with the government while safeguarding the company’s legal rights can be challenging. This article identifies key types of government visits and inquiries and provides best practices for companies to prepare for them.
Although your company may only receive government visits and inquiries occasionally, it is important to adopt proactive policies and practices in advance because government contacts can occur at any time, with no warning, and carry significant risks. Those risks include (1) providing inaccurate or incomplete information that undermines the company’s credibility with investigators and prosecutors, leading to greater scrutiny and fewer accommodations; (2) having company representatives intentionally or recklessly provide incomplete or inaccurate information, resulting in potential charges for obstruction of justice or false statements; (3) providing more information than is necessary, without helpful context, leading the government to broaden its investigation beyond what otherwise would have occurred; (4) failing to conduct an internal investigation, with the result being that the company misapprehends its legal risk and misses the opportunity to place the company in the best possible position; and (5) inadvertently waiving attorney-client privilege. Privilege law is complicated, and it is easy to waive privilege without careful control over the flow of information. For example, sharing results from an internal investigation with business persons or financial auditors who do not need to know the information for giving legal advice may waive confidentiality.
The first and most fundamental step in preparing for government contacts is to adopt a company policy on government visits and inquiries. This policy can provide the basis for training your workforce and promulgating procedures to implement the policy at specific locations.
A well-crafted policy, with supporting procedures and training, will address the following points:
Foley is here to help you evaluate the effectiveness of your policies and improve your company’s readiness in case of a government contact. We have the resources to help you prepare and respond to these high-stakes situations, including multinational investigations. Please reach out to the authors of this article, your Foley relationship partner, or our Government Enforcement, Defense & Investigations Practice Group with any questions.