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Vol. 73, No. 2, February
2000 |
 Previous
Page
When the FBI Comes to the Door
Federal rules provide a mechanism for prosecutors to challenge
multiple representations.14 The
presumption is that a client gets to pick the attorney, though
that may be overcome by the prosecutor's demonstration of
an actual conflict or a serious potential for conflict.15 In addition, Wisconsin Supreme Court
rules place an ethical obligation upon attorneys to maintain
conflict-free representation, though the rules do provide for
a waiver by clients under certain circumstances.16
Responding to Subpoenas for Records
The most frequent overlap of civil practice with federal criminal
cases is where a client company receives a federal request for
copies of records. As mentioned above, in most instances, this
will be in the form of a grand jury subpoena and may simply be
the routine gathering of information. The subpoena itself may
in no way suggest any impropriety of the client. For example,
if a target has submitted false statements to secure a mortgage
loan, the prosecutor may need the broker file to link the flow
of false information to the victim lender, even if the broker
committed no wrongdoing. In such cases, the prosecutor routinely
will inform the attorney of the client's status as a witness.
(In some instances, however, it may be too soon in the investigation
for the prosecutor to classify the recipient of the subpoena;
and, as stated above, the situation may be fluid and the broker's
status could change.)
A discussion between attorneys on the practical aspects of
responding to a records subpoena also is routine. Topics generally
include the scope of the records search, extensions of time to
retrieve records, and copying costs. Matters regarding scope
are important to both sides, since no one wants to review thousands
of pages of documents when only a few are relevant. In addition,
if records are stored off site, an extension of time to gather
the records may be needed.
Reporting a Federal Crime
Another public misconception is how federal cases develop.
Unlike television portrayals, no one swears out a complaint to
start an investigation. In many white collar cases, a citizen
(or business) simply reports the matter to the FBI or U.S. Attorney's
Office or some other federal agency, and an investigation is
begun. Usually a victim is prompted to report a matter because
of a loss of money. Also generating cases are banks, which under
federal law are required to report suspicious activity;17 and federal agencies that monitor particular
conduct, such as the U.S. Trustee's role in bankruptcy cases.18
Civil attorneys also are common initiators of criminal fraud
cases. Having developed an expertise in a particular field, such
attorneys can easily recognize when unusual, and possibly criminal,
conduct may have been present. In such instances, a letter or
telephone call to the U.S. Attorney's Office or the FBI
often is enough to prompt at least an initial review. A civil
attorney making such a report carries important credibility for
law enforcement officers evaluating how to devote limited resources.
Restitution and the Victim Company
Where a client company has been found to be the victim of
a federal offense, various provisions of federal law allow remedies
that assist the civil attorney.19
When restitution has been ordered, the U.S. Attorney's Office
and the U.S. Probation Office will monitor the defendant's
finances to ensure compliance with a court's order of restitution.
This monitoring carries the threat that if a defendant is not
making good-faith restitution efforts, the court can order an
additional prison sentence.20
In addition, for the victim company pursuing civil remedies,
a federal criminal conviction may estop the defendant from denying
the essential allegations of that offense in any subsequent civil
proceeding.21 The criminal judgment
also may be used by a victim as a lien on property of the defendant.22
The Public Record
As mentioned above, a grand jury investigation is conducted
in secret. Certain aspects, though, result in the public filing
of documents. Search warrants, for example, are obtained through
probable cause findings generally made on the public record.23 Indictments, motions, plea agreements,
and trial transcripts also are public documents.
For civil attorneys, this public record can be a help and
a burden. An attorney pursuing civil remedies for a client may
find the FBI has uncovered a wealth of information that otherwise
would not be found during civil discovery. On the other hand,
when a client has participated in criminal proceedings, even
as just a witness, there is no sealing of that participation
from public notice and unwanted notoriety may take place.
The Mind-set of the Federal Criminal Bar
Wisconsin has four federal judges and three magistrate judges
in Milwaukee that routinely hear criminal cases; in Madison,
two judges and one magistrate preside. Federal prosecutors are
located in offices in both cities and only occasionally will
a prosecutor from outside the respective offices handle a case.
The defense attorneys who routinely handle federal white collar
cases is also a small group.
As such, the federal criminal bar in Wisconsin is considered
to be well known by individual judges. Many attorneys believe
that, whether intentional or not, judges monitor the performance
of attorneys to ensure compliance with standards that the judges
want to have followed in federal court. As one attorney has joked:
You don't really know the rules unless you know the judges'
views of the rules.
The result is an emphasis on the long run. One case, no matter
how important to an individual client, usually is not considered
a justification for departing from expected norms. Prosecutors,
knowing that they may be in front of the same judge the next
day, certainly consider this factor. Defense attorneys, many
of whom are former prosecutors, carry the same concerns. Attorneys
unfamiliar with such standards, however, may find themselves
losing credibility by fighting issues that have long been settled
but not necessarily published.
Avoiding Malpractice
Attorneys almost daily face the dilemma of whether they are
getting too far afield from their regular areas of practice.
If an FBI agent comes to the door of your civil client, are you
competent to advise the client?
Wisconsin Supreme Court
Rule
20:1.1 states, "A lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for
the representation." The comment to the rule provides, in
part: "A lawyer need not necessarily have special training
or prior experience to handle legal problems of a type with which
the lawyer is unfamiliar. A lawyer can provide adequate representation
in a wholly novel field through necessary study."
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Steven Biskupic, Marquette 1987, is a prosecutor
in the U.S. Attorney's Office, Milwaukee, prosecuting white
collar crimes. His views do not necessarily reflect those of
the U.S. Department of Justice.
David Cannon, Marquette 1960, is a litigation
partner at Michael Best & Friedrich LLP, where he has represented
several clients in federal investigations. He is a former Milwaukee
County District Attorney and U.S. Attorney for the Eastern District
of Wisconsin. |
For those not involved in the economic ramifications, the
easy answer would be to consult a criminal lawyer in every instance.
But for the paying client, that may not be the best solution.
If the client is simply a witness producing records or other
historical information, there is a certain amount of overkill
involved with calling in a defense attorney in every instance.
After all, FBI and other federal agents interview citizens every
day. The defense bar would remain awfully busy if that were the
standard.
The key is ascertaining whether the civil client is simply
a witness; or, as discussed above, a subject or target. If the
client is a witness, there should not be a problem with a civil
lawyer advising the client on the contact. If the client is a
subject or target, the civil lawyer should make sure he or she
has knowledge of criminal proceedings - otherwise, consultation
with a criminal attorney would be a good first step.
In any case, however, it helps to understand the terms that
agents and prosecutors routinely use.
Endnotes
1 See U.S.
Const. Amend. V; Fed. R. Crim. P. 6, 7.
2 Fed. R. Crim. P. 7(b). The waiver
must be in open court after the defendant has been apprized of
the nature of the charges.
3 See Fed. R. Crim. P. 5,
6.
4 United
States v. Williams, 504 U.S. 36 (1992).
5 See Title
12, U.S.C., §§ 3401-22.
6 U.S. Attorney's Manual,
Title 9, Ch. 11-150. See also United States v. Gillespie,
974 F.2d 796, 798 n. 1-2 (7th Cir. 1992).
7 Id.
8 Id.
9 Id.
10 See Title
18, U.S.C., §§ 6001, et seq.
11 See United
States v. $87,118 in United States Currency, 95 F.3d
511, 516 (7th Cir. 1996).
12 See, e.g., Title
42, U.S.C., § 7606.
13 See Title
41, U.S.C., § 57.
14 Fed. R. Crim. P. 44(c) provides
for a hearing when a single counsel represents more than one
charged party. Litigation in a precharging setting may arise
from the prosecutor's attempt to contact one of the represented
parties. See U.S.
ex rel O'Keefe v. McDonnell, Douglas Corp., 152
F.3d 1252 (8th Cir. 1998).
15 See Wheat v. United
States, 486 U.S. 153 (1998).
16 See
SCR 20:1.7, et seq.
17See, e.g., 12 C.F.R.
353.
18 Title
18, U.S.C., § 3057.
19 See Title 18, U.S.C.,
§§ 3663, 3663A,
3664.
20 Title
18, U.S.C., § 3583(e)(3).
21 Title
18, U.S.C., § 3664(l).
22 Title
18, U.S.C., § 3664(m)(1)(B).
23 See Fed. R. Crim. P.
41.
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