• March 18, 2010

Bill Michael, former Green Beret, judge advocate, federal prosecutor and Dorsey & Whitney white collar crime lawyer hosted a panel of three Assistant U.S. Attorneys, Joe Dixon (corporate and investments (Petters) prosecutor), Mike Cheever (prosecutor for tax crimes), and Tim Rank (prosecutor for cybercrimes) on white collar crime in Minnesota.

The U.S. Attorneys Office is staffing up.  “Business is good.”  White collar crime prosecution often ticks up when the economy goes down.  OK, now tell me something I don’t already know, you might fairly be thinking.

A.U.S.A. Cheever suggested that, in his area, tax fraud/tax evasion, the “targets” often see the government coming a long way off (starting, maybe, with an audit?). Lawyers may get involved relatively early on in the process and might face a question of “whether to do something or do nothing.”

Cheever suggested that lawyers in this situation might want to give this some careful thought to “doing nothing.”  Often a client will give a lawyer only partial information, will elicit advice based on that selective information to seek the protection of a “reliance on advice of counsel defense.”  The lawyer may then find herself sitting uncomfortably as a witness (or worse?) at some later date.

A.U.S.A. Rank spoke about cyber crime.  When corporate clients are the victims of a computer security breach, Rank suggested, they should think seriously about getting the U.S. government involved, sooner rather than later.  Sure, your client might not want to let the world know of its computer vulnerability.  On the other hand, the government has tools at its disposal, particularly if the problem is from outside the U.S., which citizens and private companies do not have.

Rank cautioned however that the feds will not want to step into what is really primarily civil litigation.  The government may suggest to a business with a cybercrime issue that it pursue the civil case first, with the U.S. coming in later if warranted.  Conversely, the government may suggest the civil litigant “step aside” and await the completion of a criminal action before pursuing a case civilly.

Finally, the A.U.S.A.s, questioned by Bill Michael, addressed the common situation of the civil litigator’s assisting a client in responding to a subpoena from the U.S. government.

In the vast majority of cases, a third-party subpoena is served on a person or entity as a “witness,” not a “subject,” and not a “target.”  As such, the individual or company subpoena’d, in most cases, has nothing to fear.  If one’s client is a “subject” of an investigation, it means they may be in the proverbial cross-hairs.  If one’s client is a “target,” it is the focus of a criminal investigation and the civil litigator might want to explore joining up with a criminal defense lawyer.

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