All of the talk in the news about obstruction of justice should serve as a reminder of the importance of knowing what you can and can’t do when a government investigation begins.
Several actions that may sound entirely normal and seem legal can be characterized as obstructing justice. For example, if you were to forbid an employee from talking to a government agent, the government would certainly view that as obstruction. If, before talking to an agent, people get together to “compare notes” and make sure that their recollections are accurate, that seemingly innocent activity can also result in allegations of obstruction.
Make sure that your employees are aware that they are always free to talk with representatives of the government. But you also want to stress that they are almost certainly not required to talk with an agent either. With the exception of a few state licensing boards, which require licensees to cooperate in an investigation, the government cannot compel anyone to testify without a subpoena. (Even the state boards that require cooperation will generally permit the licensee to obtain counsel and schedule the interview at a convenient time.)
There is another very important point that you need to explain to employees before any investigation begins. Reassure employees that they are always permitted to notify you if they receive contact from a government agent. Agents will sometimes indicate that they would appreciate it if the employee didn’t tell anyone about the government contact.
There is nothing wrong with “appreciation.” I would “appreciate it” if you sent me $100 in the mail or if you choose to hire me based on this article, but just as you are under absolutely no obligation to do so, an employee is under no obligation to maintain the secrecy of the government contact. When a person with a gun and badge makes a request, it can be very difficult to refuse. You want employees to understand that the request for discretion is a request, not an order. If the agent characterizes it as an order, he or she is acting unethically. Your best hope is to assure and then reassure employees multiple times, well before any contact with a government agent, that they are free to inform you of contact.
Most agents are ethical and will frame the instruction as a request, but I am aware of some situations in which the government has implied that it’s improper to discuss contacts from an agent. In one extreme example, a United States Attorney’s Office in the southeastern U.S. sent one of my clients a subpoena that read “the United States Attorney requests that you do not disclose the existence of this subpoena. Any such disclosure would impede the investigation being conducted and thereby interfere with the enforcement of the law.”
Because such language is inaccurate, the American Bar Association complained. My understanding is that the government has agreed to refrain from using this type of wording going forward, but that doesn’t mean it will never happen again. The only time that the law authorizes the government to require people to refrain from discussing an investigation is when it involves certain terrorism and banking investigations. In the healthcare world, people are always free to tell you when they’re contacted.
If you would like a wallet-sized laminated card describing the do’s and don’ts regarding interaction with a government agent, please send me an email at dglaser@fredlaw.com (please include your snail mail address) and I will send one right out.
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