Part 1: Informal Interviews

Sometimes, agents will show up at a person’s home, or approach a potential witness at some other non-threatening location. The agents may or may not advise the employee that the person has the right to decline to answer any questions. Also, the agents may inform the person that anything the person says could possibly be used against the person later. As a result, people who are not prepared to respond to a government investigator may consent to the interview, not knowing that he or she has the option to refuse.

If a government investigator approaches any citizen, the person may feel nervous. After all, if the investigator believes the person lied, the investigator may initiate criminal charges for lying to an officer. Further, that conversation could lead to enormous legal costs in the event that the government subpoenas the person for a deposition later. People who lack preparation or knowledge may not recall details when responding to questions; government investigators can twist words, or later use a person’s words to malign, or cast doubt on the person’s character.

A company should take proactive measures to prepare people for the possibility of a government investigation.  It should also provide general training about a person’s rights in the event that a government agent asks for an interview.  That training should include instructions, or options, that an employee may consider if approached by an agent. Some guidelines on training may include what a person should do if:

Employee informs company that a government investigator wanted to speak with him or her:

If an employee lets the company know that a government investigator made contact, the company may want to hire an attorney for the employee. The attorney may speak with the prospective witness to talk about rights the person may have. A prospective witness may decline to speak with the investigator, or the witness may choose to have an attorney present. The company’s lawyer may try to intervene and ask if the questions pertain to the company; if so, the company’s lawyer may ask for an opportunity to attend the interview with the witness.

The witness speaks with the government, but the company doesn’t know until after the interview:

If the company learns about the interview after the witness spoke with investigators, a lawyer should attempt to speak with the employee. Neither the company’s lawyer, nor anyone else, should make the person feel as if speaking with the government violated anything at all. By speaking with the employee, the lawyer should attempt to learn the substance of what the government wanted to know.

Although the lawyer may advise the employee of his or right to counsel, no one should retaliate against the person in any way. Any type of retaliation or judgment could work against the company, potentially eliciting accusations of violating whistleblower statutes or obstruction of justice charges.

The company should prepare employees whom the government may target for interviews.

The best time to prepare for a government investigation would be before the government investigation begins. In other words, our team at Compliance Mitigation encourages leaders to train for best practices, consistent with the compliance manual. That training should include guidance for people to consider in the event that government investigators target them.

1. The company should help all employees understand their rights to counsel, and their rights to refuse to speak with investigators.
2. Training should include real-life stories of people who have been dragged into government investigations, showing the disruption those investigations can cause.
3. The company should never advise employees to hide, deceive, or mislead a government investigator; they should also train on the penalties that can follow for a person if the investigators accuse the person of lying.
4. Although government agents may use their authority to intimidate people into talking, a person has the right to refrain from saying anything to a government investigator.
5. If a person talks with a government investigator, and the investigator accuses the person of lying, the government may charge the person with a federal crime that could result in a five-year prison term.
6. A person has the right to have counsel present if he or she talks with a government investigator.
7. If a person hires a lawyer, that lawyer will represent the person and not the company. The conversations a person has with the lawyer of record will remain between the client and the lawyer—unless the person authorizes the lawyer to share the information with others.