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2007 Fredrikson & Byron, P.A.

Criminal Law Practice Tips for Civil
Lawyers:
Presented by
John W. Lundquist
Richard H. Kyle, Jr.
Dulce J. Foster
What to do When the Feds
are at the Door
2007 Fredrikson & Byron, P.A.
Execution Of A Search Warrant
Get Out Of The Way!!
2007 Fredrikson & Byron, P.A.
Execution Of A Search Warrant
Get Out Of The Way!!
When the Client Calls
Travel to the site of the search if possible.
Contact the agent in charge or lead prosecutor.
Obtain a copy of the search warrant.
Make clear that you are representing the company.
Inform agents (and prosecutor) that they are not to
speak to anyone during the search.
Make arrangements to receive
copies of seized business records.

2007 Fredrikson & Byron, P.A.
Responding to Subpoenas
U.S. District Court
Subpoena in a
Criminal Case

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2007 Fredrikson & Byron, P.A.
Responding to Subpoenas
Documents are not protected by the Fifth
Amendment, but other limits may apply:
Attorney-client and other privileges may apply
Protected patient information should not be disclosed
without a court order or patient consent
Limits on unreasonable or overly burdensome requests may
be negotiated with government counsel
If negotiations fail, bring a motion to quash or modify the
subpoena (F.R. Crim. P. 17(c)(2))

U.S. District Court
Subpoena in a
Criminal Case

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2007 Fredrikson & Byron, P.A.
Responding to Subpoenas
Documents are not protected by the Fifth Amendment, but
the act of producing documents may be protected:
Fifth Amendment privilege against producing incriminating
evidence
Individuals may seek act of production immunity as a condition to
responding to subpoenas
Butseeking act of production immunity may prompt the
government to get a search warrant
Corporations cannot claim the Fifth Amendment
U.S. District Court
Subpoena in a
Criminal Case

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2007 Fredrikson & Byron, P.A.
Dont Destroy Documents
Or Hide Evidence
2007 Fredrikson & Byron, P.A.
Dont Destroy Documents
Or Hide Evidence
Clients must never destroy evidence once they
are aware that an official proceeding or
investigation is underway.
Cease routine destruction.
Destruction of documents can be a crime.
Federal Statute
Tampering with a Witness (18 U.S.C. 1512)
2007 Fredrikson & Byron, P.A.
Dont Destroy Documents
Or Hide Evidence
Exh. A: United States v. Arthur Andersen LLP
The E-mail
It might be useful to consider reminding the [accountants on
the Enron account] of our document retention policy.
The Criminal Statute
Whoever knowingly . . . corruptly persuades another person,
with intent to . . . alter, destroy, mutilate, or conceal an object
with intent to impair the objects integrity or
availability for use in an official proceeding.
- 18 U.S.C. 1512(b)(2)(B)
2007 Fredrikson & Byron, P.A.
Dont Destroy Documents
Or Hide Evidence
Lessons learned from the Anderson case:
Companies/individuals no longer criminally liable
absent proof of nexus between directive to destroy
documents and an intent to affect a government
proceeding or investigation.
Routine enforcement of comprehensive
document retention policies is critical.

2007 Fredrikson & Byron, P.A.
Employee Interviews
- Dont Talk To Strangers -
2007 Fredrikson & Byron, P.A.
Dont Talk To Strangers
The Government Investigator Has The Right To
Contact An Individual And Request An
Interview.
The government investigator does not have the right to
insist upon an interview.
And its improper for him or her to pressure anyone in
an attempt to obtain an interview.
2007 Fredrikson & Byron, P.A.
Dont Talk To Strangers
Individuals Have The Right To Talk Or Not Talk
With Investigators.
In all situations individuals have the right to consult
with legal counsel before deciding whether or not to
talk to the investigator.

If a person decides that they are willing
to be interviewed, they have the right
to insist upon any precondition they
desire.
2007 Fredrikson & Byron, P.A.
Dont Talk To Strangers
Individuals Have The Right To Talk Or Not Talk
With Investigators.
For example, they can require that the interview be
conducted only in the presence of legal counsel.
Regardless of the individuals decision, the individual
has every legal right to tell his or her employer
about the government contact.

2007 Fredrikson & Byron, P.A.
Always Tell The Truth
2007 Fredrikson & Byron, P.A.
Always Tell The Truth
If an individual is going to talk, he/she must tell
the truth when talking to government agents.
Failure to do so may, in and of itself, be a
violation of the law.
Federal Statutes
False Statements (18 U.S.C. 1001)
Obstruction of Justice (18 U.S.C. 1505)
Perjury (18 U.S.C. 1621)
Minnesota Statutes
Perjury (Minn. Stat. Sec. 609.48)
2007 Fredrikson & Byron, P.A.
Always Tell The Truth
Exh. A: United States
v. Martha Stewart.
2007 Fredrikson & Byron, P.A.
Advising The Client To
Take The Fifth
2007 Fredrikson & Byron, P.A.
Advising The Client To
Take The Fifth
Fifth Amendment Primer
U.S. Constitution, Amendment V
No person shall be compelled in any criminal case to be a
witness against himself.
Witnesses may invoke their Fifth Amendment right in
civil as well as criminal proceedings.
Depositions
Interrogatories
Document Requests
Test: testimony sought would tend to
incriminate witness.
Not a bar to the production of documents.
2007 Fredrikson & Byron, P.A.
Advising The Client To
Take The Fifth
When a Client Should Take the Fifth.
Client is a formal subject or target in parallel
criminal proceeding.
Be Careful What You Ask For
Adverse inferences.
Stay of Civil/Administrative Proceedings.
2007 Fredrikson & Byron, P.A.
Resist Governments
End Run Around You


2007 Fredrikson & Byron, P.A.
Resist Governments
End Run Around You
The Applicable Rules
Rule 4.2 of the Minnesota Rules of Professional
Conduct
In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the
lawyer knows to be represented by another lawyer
in the matter, unless the lawyer has the
consent of the other lawyer or is authorized
to do so by law or a court order.
2007 Fredrikson & Byron, P.A.
Resist Government
End Run Around You
The Applicable Rules

Local Federal Rule 83.6(d)
The Minnesota Rules of Professional Conduct adopted by the
Supreme Court of Minnesota as amended from time to time by
that Court are adopted by this Court except as otherwise
provided by specific rules of this Court.

2007 Fredrikson & Byron, P.A.
Resist Government
End Run Around You
Whose Right Is It Under Rule 4.2?
The focus of Rule 4.2 relates to the obligation of
attorneys to respect the relationship of the adverse
party and the partys attorney.
The right created by this rule belongs to counsel and
not the client.
Waiver of this right is only valid if
made by counsel.

2007 Fredrikson & Byron, P.A.
Resist Government
End Run Around You
Who Must Abide by Rule 4.2?
Attorneys licensed in Minnesota (or who must abide by
those rules under the U.S. District Court Local Rules).
A lawyer is also responsible for the conduct of
associated non-lawyers if (1) the lawyer orders the
conduct, or (2) ratifies the conduct.
2007 Fredrikson & Byron, P.A.
Resist Government
End Run Around You
Who Is the Client?
The Company
Management
Employees
Former Employees?
Blanket assertions regarding representations.

2007 Fredrikson & Byron, P.A.
Resist Governments
End Run Around You
The Appropriate Remedy
Suppression of evidence.
2007 Fredrikson & Byron, P.A.
Conducting An Internal
Investigation
2007 Fredrikson & Byron, P.A.
Conducting An Internal
Investigation
When to conduct an independent investigation.
Corporation discovers a possible violation of law by
one of its employees/agents.
Corporation seeks to avoid criminal prosecution in
post-Enron environment.
2007 Fredrikson & Byron, P.A.
Conducting An Internal
Investigation
Procedures for conducting internal investigation.
Establish formal process under supervision of an attorney.
Attorney not a target/witness
Attorney did not give advice about subject
Preserve privileged information.
Employ independent agents.
Assure confidentiality.
Make disclosure to employees.
Corporate Miranda warning.
Continuing supervision by counsel.
2007 Fredrikson & Byron, P.A.
Dont Become A Witness In
Your Own Case
2007 Fredrikson & Byron, P.A.
Dont Become A Witness In
Your Own Case
Rule 3.7(a) Lawyer as Witness
A lawyer shall not act as an advocate at a trial in which
the lawyer is likely to be a necessary witness except
where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client.
2007 Fredrikson & Byron, P.A.
Dont Become A Witness In
Your Own Case
Rule 3.7(a) Lawyer as Witness
Depositions, while available under the Rules of
Criminal Procedure (21.01 et seq.), are rarely
employed as a discovery tool in criminal cases
Hire an investigator to conduct any witness interviews.
Unless you want to be a witness in your own case.
2007 Fredrikson & Byron, P.A.
Thompson and McNulty Memorandums
Rethinking Corporate Liability

The Thompson Memorandum

In the wake of Enron, the Department of Justice issued
the Thompson Memorandum, which made clear that
corporations deemed not cooperating with criminal
investigators were more likely to face criminal
indictment.
In assessing cooperation, prosecutors consider (1)
whether the corporation was advancing legal fees or
otherwise indemnifying its employees and (2) whether
the corporation waived the attorney-client privilege
and attorney work product doctrine for materials
related to any internal investigations.
2007 Fredrikson & Byron, P.A.
Thompson and McNulty Memorandums
Rethinking Corporate Liability
The McNulty Memorandum

In response to wide criticism by the Courts, Congress,
the defense bar and business community, the DOJ
issued the co-called McNulty Memorandum, which
modifies the Thompson Memorandum in several key
areas.
Federal prosecutors can no longer consider a business
organizations indemnification or advancement of
attorneys fees to individual employees when evaluating
a corporations cooperation.



2007 Fredrikson & Byron, P.A.
Thompson and McNulty Memorandums
Rethinking Corporate Liability
- A limited exception is where the totality of the
circumstances show that [indemnification or the
advancement of attorneys fees is] intended to impede
a criminal investigation. In such cases, the fee
arrangement will be considered as a factor in
determining whether the corporation is acting
improperly.

2007 Fredrikson & Byron, P.A.
Thompson and McNulty Memorandums
Rethinking Corporate Liability
- The practice of requesting and evaluating corporate waivers of
attorney-client privilege and attorney work product will
continue where there is a legitimate need for privilege
information.

- A legitimate need is determined by (1) the likelihood and
degree to which the privilege information will benefit the
governments investigation; (2) whether the information can be
obtained in a timely and complete fashion by using alternative
means that do not require waiver; (3) the completeness of a
voluntary disclosure already provided; and (4) the collateral
consequences to a corporation resulting from a waiver.

2007 Fredrikson & Byron, P.A.
Settlement Statements to Federal Regulators
No Longer Privileged
Old Federal Rule of Evidence 408
Traditionally settlement statements to federal
regulators, such as the SEC, were privileged and,
therefore, protected from disclosure to federal law
enforcement for use in criminal proceedings.
2007 Fredrikson & Byron, P.A.
Settlement Statements to Federal Regulators
No Longer Privileged
Amended Rule 408 (effective December 1, 2006)
Rule 408 no longer prohibits the introduction in a
criminal case of statements or conduct during
compromise negotiations regarding a civil dispute by a
government regulatory, investigative, or enforcement
agency.
By contrast, officers of settlement are still protected
from admission in criminal proceedings.
Thus, any admissions of liability made by a client or a
clients lawyer during settlement negotiations with
federal regulators can be disclosed for use in criminal
proceedings.
2007 Fredrikson & Byron, P.A.
Settlement Statements to Federal Regulators
No Longer Privileged
Minnesota Rule of Evidence 408
No change yet
2007 Fredrikson & Byron, P.A.
Seeking
Indemnification
2007 Fredrikson & Byron, P.A.
Always investigate potential insurance coverage
Existing D & O policies may cover the costs of defense
for corporations and/or their employees
Claims must be asserted within policy time limits
Notice of investigation (subpoenas, target letters, etc.)
may trigger obligation to tender claims
Seeking
Indemnification
2007 Fredrikson & Byron, P.A.
Seeking
Indemnification
Indemnification from Employers
Indemnification mandatory under certain conditions.
Minn. Stat. 302A.521.
No other coverage
Conduct taken in employees official capacity
Employee acted in good faith
No improper personal benefit to employee
No reasonable cause to believe conduct was unlawful
Conviction not an automatic bar to indemnity
Includes judgments, fines and defense costs



2007 Fredrikson & Byron, P.A.
Talking To The Press
2007 Fredrikson & Byron, P.A.
Talking To The Press
Clients with criminal exposure should rarely, if
ever, talk to the press.
What a client tells the press will likely be
admissible later at trial.
If you represent a corporation, review press
releases with companys public relations people.
Consider hiring outside public relations firm.
2007 Fredrikson & Byron, P.A.
Consult With A
Criminal Defense Lawyer
2007 Fredrikson & Byron, P.A.
Consult With A
Criminal Defense Lawyer
If a civil case has criminal overtones, talk to a
criminal defense lawyer.
No different than consulting with other specialists
or experts.
Criminal defense lawyers are lots of fun.
We tell great stories.
2007 Fredrikson & Byron, P.A.
When the Feds are at the Door
1. Execution Of A Search Warrant Get Out Of The Way!!
2. Responding to Subpoenas
3. Dont Destroy Documents Or Hide Evidence
4. Employee Interview - Dont Talk To Strangers
5. Always Tell The Truth
6. Advising the Client to Take the Fifth
7. Resist Government End Run Around You
8. Conducting An Internal Investigation
9. Dont Become A Witness In Your Own Case
10. Thompson and McNulty Memorandums
11. Seeking Indemnification
12. Settlement Statements to Federal Regulators No Longer Protected
13. Talking To The Press
14. Consult With A Criminal Defense Lawyer

John W. Lundquist - (612) 492-7181
Richard H. Kyle, Jr. - (612) 492-7333
Dulce J. Foster - (612) 492-7110

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Criminal Law Practice Tips for
Civil Lawyers:
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