How to Choose a Federal Defense Attorney
5 Common Mistakes & Insider Tips for Choosing the Most Qualified Federal Defense Law Firm:
By: Dr. Nick Oberheiden
From the moment you find out that you are at risk for federal prosecution, everything you say and do matters. It doesn’t matter whether your are at the opening stages of a “routine” audit or federal agents have raided your offices. It doesn’t matter whether you think you are completely in the clear or you are certain that you are guilty. From this point forward, every decision you make needs to take the government’s investigation into consideration.
Bear with me. This is long, but it’s important.
Why are Federal Authorities Looking into Your Business or Practice?
From heath care to investment advisory services, businesses and professionals in numerous industries are subject to strict federal oversight. If your company is subject to federal reporting requirements or does business with the federal government, it is being monitored on a constant basis. Thanks to data analytics software, federal agencies can sift through extraordinary amounts of information around the clock, and all it takes is one apparent anomaly or outlier to trigger closer review.
From the U.S. Department of Health and Human Services (DHHS) to the U.S. Securities and Exchange Commission (SEC), federal oversight agencies face an extraordinary burden. So, when one of these agencies singles your company out, that means something. It means someone has decided that it is worth devoting the time and resources to take a closer look, and it means that you owe it to yourself, your employees, and your shareholders to make sure the inquiry is resolved quickly, discretely, and as favorably as possible.
At This Point, the Federal Government Already has the Upper Hand
So, what do you know about the federal government’s investigation? At this point, probably not much other than the fact that it exists. You might know more – for example, if you are a DEA-registered health provider, you might know that the DEA conducts routine inspections to verify compliance – but you might also be making assumptions. Is it really just another routine inspection? Or, has some piece of information or a new federal law enforcement initiative triggered a more-targeted inquiry? Furthermore, even if it truly is a routinely inspection, are federal agents going to come across information that could potentially have criminal implications?
On the other hand, federal authorities know exactly what they are doing. They know what they are looking for – and why – and they know when and how they plan to let you in on it. So, if you are going to defend yourself effectively, you need the experience to match theirs.
Mistakes to Avoid if You are in the Federal Government’s Crosshairs
When your business or practice is under investigation, the decisions you make can either help or hurt your defense, and there really isn’t much of a middle ground. Even when it comes to going about your day-to-day business, either you are affirmatively demonstrating compliance, or you are continuing to make mistakes that can lead to charges, fines, and other penalties.
In addition to these types of operational mistakes, there are strategic mistakes you need to avoid as well. For example:
Mistake #1: Entrusting Your Case to an Acquaintance or Family Friend
As a business owner, executive, or professional practitioner, you probably know some attorneys. You probably have family friends who are attorneys, and they are probably all very good at what they do.
But, what is it that they do, exactly? Unless they happen to be federal defense lawyers, they aren’t going to have the skillset you need.
Litigation is very different from transactional practice, and civil litigation is very different from criminal defense. In many ways, the chasm between state and federal criminal defense is even wider. Federal defense is a niche practice area, and it is one area in particular where it is essential to have highly-relevant experience. If you are dealing with a team of FBI agents and DOJ lawyers who have all spent their entire careers in civil service, you need your lawyers to understand how they think and be able to anticipate what they are going to do next. You also need your lawyers to be intimately familiar with the federal laws and constitutional principles that are fundamental to your defense.
If a lawyer is willing to take your case, doesn’t that mean he or she believes he or she has the wherewithal to represent you effectively? In the federal realm, this is not necessarily the case. In many cases, it is a matter of not knowing what they don’t know. The federal legal system is so complex and the federal investigative and criminal justice processes are so unique that most lawyers – in fact, the vast majority of lawyers – do not have a grasp of what is involved in federal defense practice.
In many cases, in addition to lawyers with relevant legal experience, it is also helpful to have consultants with federal law enforcement expertise. Former FBI and DEA agents who spent decades on the ground can provide invaluable insight into the investigative process. At Oberheiden, P.C., we focus our practice on federal defense, and we have built our defense team accordingly. Since we understand what is at stake, we also know what it takes to mount a successful defense. Our federal defense team includes:
- Career federal defense lawyers
- Former U.S. Attorneys and Assistant U.S. Attorneys
- Former DOJ prosecutors
- Former FBI and DEA Special Agents
- Former Internal Revenue Service (IRS) and Office of Inspector General (OIG) Special Agents
Mistake #2: Choosing a Law Firm Based on Legal Marketing, Not Legal Skills
Legal marketing is big business. While lawyers used to build their client list by making connections and establishing a reputation, in today’s world, any law firm with a website and an advertising budget can get clients in the door.
Of course, getting clients in the door and representing them effectively are two different matters entirely.
In federal defense practice, experience matters. Not just experience, but relevant experience. While any law firm can market itself to prospective clients in a particular practice area, it takes a particular skillset honed over years, if not decades, of practice to be able to make informed and confident decisions during a federal investigation.
Mistake #3: Hiring Lawyers Who Don’t Understand Your Business or Practice
In federal matters, there are two reasons why it is important for your lawyers to understand your business or practice: (i) any time spent learning about your business or practice is time not spent building and executing your defense; and, (ii) the time spent learning about your business or practice can – and will – be billed.
In order to provide efficient and effective legal representation, a federal defense lawyer must have two discrete bodies of knowledge. Not only must he or she must have in-depth knowledge of the relevant federal regulations, statutes, and case law, but he or she must also have an intimate understanding of the client’s business. While there will be an unavoidable learning curve (i.e. to understand the company’s policies and procedures and get to know key personnel), what a lawyer should not have to spend time on is learning about the client’s industry and the nature and extent of federal oversight involved.
When your business or practice is being targeted by the federal government, you need your legal team to hit the ground running. You need your lawyers to be asking the right questions while proactively advising you and your key personnel about the risks triggered by the investigation. You need your lawyers to be able to understand your company’s or practice’s records, and you need them not to stumble because they lack the knowledge required to execute a tailored and effective defense strategy.
Mistake #4: Expecting Your Legal Team to Handle the Entire Process for You
Importantly, while you need your lawyers to be able to intervene in the federal government’s investigation and communicate effectively with federal agents and prosecutors on your behalf, you should not expect to hand over the reins entirely.
While it may be tempting to clear your desk and get back to business as usual, the reality is that you do not want your lawyers working in a vacuum. You want them working with you and your key personnel collaboratively – asking questions, exploring potential lines of defense, and making sure everyone is on the same page when it comes to protecting your business or practice.
At Oberheiden, P.C., when we talk about our client’s “defense team,” our client is an integral member of that team. It’s a cliché, but we do truly get to know our clients personally. During the most active stages of your case, we will be in contact with you on a daily basis. We will keep you informed, seek your input when necessary, and make sure you agree with the approach we are taking. If our respective opinions about how to best approach your case diverge for any reason, this is an issue that we will want to address as soon as possible so that we can maintain a synchronized and cohesive defense. When you choose our firm to represent you, you can expect:
- Immediate consultation and 24/7 accessibility
- Regular communication with the attorneys and consultants handling your case
- Clear explanations of legal issues and options that you have available
- Thorough analysis and careful recommendation of defense strategies
- Proactive advice regarding compliance and risk mitigation
Mistake #5: Making Assumptions and Uninformed Decisions about Your Defense
Finally, I touched on this earlier, but it bears repeating: Making assumptions and uninformed decisions is one of the biggest mistakes you can make during a federal case or investigation. There are two primary reasons why.
First, you may end up defending against something that doesn’t need to be defended against. When you find out that you are being targeted by federal authorities, the odds are that you still won’t know why. While your gut reaction may be to respond immediately, if you start defending against the wrong allegations, you might end up doing more harm than good.
Second, if you are defending against the wrong allegations, then you aren’t defending against the right ones. If you put your efforts toward pursuing an inapposite (and potentially harmful) “defense” strategy, you are wasting time and resources that you could have used far, far more effectively.
There are other potentially-dangerous implications to making assumptions and relying on inaccurate or incomplete information as well. For example:
- You could unnecessarily disclose information that aids the government’s investigation
- You could unnecessarily disclose information that leads to new lines of inquiry
- You could waive crucial constitutional protections and statutory privileges
- You could get further behind as federal prosecutors continue to build their case
- You could miss opportunities to target a pre-charge or pre-trial resolution
Ultimately, achieving a favorable result requires proactive and strategic decision-making based on the advice of experienced legal counsel. Even if you are certain that you have nothing to hide, convincing federal authorities that this is the case is an altogether different proposition. If your business or practice is facing a federal case or investigation, you need experienced federal defense counsel. I know because I have seen the results first-hand. I have seen the incredible work that our team does for our clients, and I have also seen what happens when business owners, executives, and professionals make the wrong decisions.
Give Me a Call to Discuss Your Federal Case or Investigation
I’m sure you have questions, and I would be happy to answer them for you. Even if you don’t know exactly what you need to ask, we can talk about your situation and develop a plan to move forward. If you are interested in working with our firm, I also want to get to know you personally; and, equally important, I want to make sure you feel 100% comfortable choosing us to represent you.