Lugar de Noticias Haynes and Boone

Ethical and Practical Issues Arising In the Face of a Govt. Investigation
05/11/2001
Robin P. Hartmann

Introduction

Enforcement actions against corporations and their employees are becoming more common, especially criminal enforcement actions. These actions raise several conflict and ethical issues that must be addressed by lawyers defending either the company, the employees, or both. Many of these conflict issues are inherent in any situation where the degree of liability varies across a collection of people or entities. Some of these conflicts arise or are exacerbated, only because of certain aggressive tactics the government uses in its investigations.

While substantial space in this article is devoted to ethical conflicts arising within criminal defense situations, the line between civil enforcement actions and criminal enforcement actions is becoming increasingly thin and fuzzy. There are several reasons for this increasing overlap, but perhaps the most important is that government agencies have come to believe that civil fines do not prompt companies to invest the resources necessary to comply with increasingly complex regulations. Government agencies have come to believe that only when individual executives are sent to jail do corporations take note and change their behavior. See, e.g., Memorandum from Eric H. Holder, Jr., Deputy Attorney General, to All United States Attorneys (June 16, 1999) ("[I]mposition of individual criminal liability on such individuals provides a strong deterrent against future corporate wrongdoing.") (1) Accordingly, any lawyer defending either a corporation or its employees in the face of any type of government investigation should always be on guard for the possibility that the investigation "turns criminal." Hence, all corporate counsel should be aware of the conflict issues and practical considerations discussed in this article, whether they arise in civil enforcement actions or in criminal enforcement actions.

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