Tuesday, March 14, 2006

Is Hiring A Defense Attorney Obstruction of Justice?

The Second Superseding Indictment in the case of United States v. Singleton provides some fascinating language in Count Ten, an obstruction charge under 18 USC 1512(c)(2).  It seems that comments made by an employee during an internal investigation are now being used to form the charge of obstruction. The indictment actually states that the defendant "informed the Outside Lawyers that he had retained an attorney and wanted to reschedule the interview for a time when his attorney could be present.....The attorney was a criminal defense attorney." 

This approach of using employee statements during an internal investigation to form the basis of a charge in an indictment was seen in the case of Computer Associates (see post here).

The ramifications of the government taking this approach is that employees will be less likely to participate in internal investigations.  Such an approach will not be beneficial to the company, not assist the shareholders, and certainly destroys any trust between a company and its employees. And if the conversations will no longer take place, then the government will get nothing. This is not an impressive move by the government.  Is it really worth getting the information in these two cases to cause such damage to the corporate environment?

See Singleton Indictment here- Download 2nd_ss_singleton.pdf

(esp)(hat tip to Bill Jordan)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/03/is_hiring_a_def.html

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