Sunday, April 16, 2006

Seven Things a Prosecutor Probably Won't Tell You

The current issue of Corporate Board Member Magazine has an interesting article by Robert Calo, a former federal prosecutor who is now a partner at Lane Powell in Portland, Oregon, entitled "Seven Things a Prosecutor Probably Won't Tell You (I Know.  I Used to Be One.)" (here).  In any criminal investigation, knowledge of what the government is -- or may be -- doing is important for determining how to proceed.  Calo's article points out that much more may be going on than meets the eye, and should be considered whenever the possibility of an investigation arises and particularly during the course of one.  His list, which includes a much greater explanation of each point, is:

  1. "Subpoeanas are on their way."
  2. “Surprise! I may send grand-jury subpoenas to your customers or vendors too.”
  3. “I may send in an armed posse with a search warrant.”
  4. “Other agencies may also be investigating your company.”
  5. “You don’t have to waive the attorney-client privilege.”
  6. “Not only do I want to settle the criminal action, I want the company to undertake a costly modification of its entire corporate compliance structure.”
  7. “Even if I don’t bring charges, I may make it tough for you to defend yourself against civil suits.”

Number five, regarding privilege waivers, may take on even greater importance after the Sentencing Commission's recent decision to remove from the corporate sentencing guidelines the reference to waiving the attorney-client privilege and work product protection as an indicia of cooperation. (ph)

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