What Can Turn a Lawyer into a Target?
Contact Federal Criminal Defense Attorneys at Oberheiden P.C. to Make Sure Your Law License and Your Freedom Are Protected When the FBI Investigates You
Given the number of lawyers in the United States, criminal prosecutions of lawyers appear to be a statistical anomaly. Obviously, any lawyer can be charged just like a non-lawyer for misconduct that occurs outside the scope of legal practice (e.g. drunk driving, pornography offenses, computer crimes etc.). Similarly, any lawyer can be held responsible for not paying owed taxes. Of particular interest, however, are those situations in which a lawyer in essence becomes an ally of his client and willingly participates in the client’s criminal misconduct.
Drawing the demarcation line between “acting as a lawyer” and “operating as a business person” in these types of mingled settings can be onerous. While it is fairly established that the federal government will not prosecute a lawyer for merely giving “wrong” or “incorrect” legal advice, the government may scrutinize the legitimacy of the law practice if prosecutors suspect the lawyer primarily acting as a business promoter to an illegal enterprise. Whether it is the Michael Cohen case or any of the examples displayed below, virtually all prosecutions of lawyers have in common that the alleged misconduct has nothing to do with the attorney practicing law or giving (right or wrong) legal advice. Counter-indications of a legitimate law practice include:
- The lawyer does not act as a lawyer, but as a business advisor.
- The lawyer only has one “client,” that is the client under investigation.
- The lawyer offers his trust account to “hold” or “hide” money for a client.
- The lawyer has a vested interest (e.g. ownership) in his client’s business.
- The lawyer does not operate a real law firm (e.g. no trust account, no law firm incorporation).
- The lawyer gets paid for “approving” deals.
FBI Investigations against lawyers are delicate issues. After all, lawyers are officers of the court and any government action necessarily involves complex questions of attorney-client privilege protection and work product doctrine. If you find yourself in a situation in which you need reliable legal advice, please call Oberheiden P.C. today to discuss your matter in full confidence.
About Nick Oberheiden
Dr. Nick Oberheiden is a federal criminal defense attorney with significant experience representing attorneys, prosecutors, and law enforcement agents in FBI and OIG investigations. Trusted as lead counsel in federal defense cases in currently over 40 states, Nick understands that it is not just your freedom and your reputation, but also your license and your credentials about which you are concerned. Thus, in each representation, the goals are clearly defined.
- No criminal charges.
- No license revocation.
- No publicity.
Nick has proven his skillset by avoiding criminal charges in hundreds of federal cases. Unlike most other lawyers, Nick exclusively focuses on federal law, in particular on criminal investigations involving the U.S. Department of Justice, the FBI, the SEC, the IRS, and the Office of Inspector General. Nick is the go-to lawyer for anyone seeking effective advice in critical personal situations. For a free consultation, call Nick today.
How We Can Help You
The team of former Justice Department prosecutors at Oberheiden P.C. has helped many lawyers stay unnoticed from the public while they are under investigation. When a lawyer approaches Oberheiden P.C. for help, Nick Oberheiden and the other senior attorneys at Oberheiden P.C. utilize their immense federal experience to carefully analyze the situation and to follow proven protocols that have saved all of their attorney clients from prosecution. Depending on the circumstances, Nick may advise you to withdraw from the client in question, to initiate a litigation hold, to cease communications with affiliated parties, or even to prepare for a meeting with the U.S. Attorney’s Office and the FBI. Some of Nick’s recent lawyer representations include:
- Defense of a Business Owner in Attorney Michael Cohen Investigation. Among the many high-profile cases with Nick’s involvement was the investigation against Michael Cohen, former attorney to the President. Nick represented a close business partner in this Grand Jury investigation and important questions regarding the scope and limitations of the attorney-client privilege had to be addressed and resolved. Nick avoided criminal charges for his Los Angeles based client.
- Defense of Lawyer in a Ponzi Scheme. The FBI and the U.S. Attorney’s Office accused a corporate lawyer of having abused his law practice credentials to facilitate, support, and enable a federal investment fraud conspiracy. Nick successfully defended that lawyer without criminal charges ever being brought against Nick’s client. The lawyer continues to practice law without the public or the bar association ever knowing about the investigation.
- Defense of Lawyer Before Grand Jury. Nick defended a lawyer in a federal grand jury investigation. The lawyer was accused of a number of financial crimes, primarily for participating in a federal securities fraud conspiracy. In a series of meetings and presentations at the U.S. Attorney’s Office, Nick convinced the government to not charge his client, but to use her as a witness for the government’s case-in-chief. The lawyer continues to practice law without any license reprimand or charges.
- Defense of Lawyer for Making a False Statement to the FBI. Nick defended a prominent lawyer in a federal investigation spanning multiple federal districts. The FBI accused Nick’s client of having made materially false statements to law enforcement in the context of an FBI probe. Nick was able to clarify the situation and ultimately established that no “materially false” statements were made. The lawyer continues to practice without any of her clients or the bar association awareness of this federal case.
- Defense of Lawyer as a Trial Witness. Nick represented a lawyer client accused of having aided and abetted in various financial crimes. To avoid his client’s exposure, Nick convinced the government to accept an “attorney proffer.” In that proffer, Nick spoke to the FBI and federal prosecutors on his client’s behalf introducing a new perspective of what really happened to the government. Instead of charging Nick’s client, as originally contemplated, Nick convinced the Justice Department to consider Nick’s client as a potential trial witness against the main defendants. All defendants pleaded guilty and Nick’s client was never charged and never had to testify in public.
- Defense of Lawyer in Whistleblower Action. Nick represented a lawyer in a federal lawsuit naming Nick’s client a defendant in a federal civil conspiracy case. Accused of participating in a fraud scheme, Nick’s client was targeted as a facilitator of the underlying scheme. The U.S. Attorney’s Office declined to intervene and the plaintiffs dismissed the case against Nick’s client. Nick cleared his client’s name before the case was unsealed.
- Defense of Prosecutors and Federal Agents. Nick represented a number of current prosecutors and federal agents in various internal investigations involving the Office of Inspector General (OIG) and other internal investigation units. Not one of his clients lost his or her security credentials and not a single case turned into a termination of employment or charges.
If you find yourself under investigation or want someone to assess your exposure, feel free to call Nick Oberheiden and his team of former federal prosecutors and defense attorneys today, including on weekends. No junior lawyer will be on your case and no secretary will waste your time.
Signs That a Lawyer Is Under Investigation
Most federal indictments come announced. Interpreting critical indications in federal cases and drawing the right conclusions to provide effective legal advice is what leads to a track record of hundreds of avoided charges in FBI, OIG, DEA and Justice Department probes. If you experience any of the following symptoms of an investigation, please call Dr. Oberheiden right away.
- Your (Only) Client Is Under Investigation
- FBI Agents Stop by Your House to Interview You
- You Hear Rumors of an Investigation Against You
- You Receive a Grand Jury Subpoena
- Agents from the Office of Inspector General Request Your Interview
- The Government Shows Up with a Search Warrant
- You Receive a Target Letter from the U.S. Attorney’s Office
- You Get Arrested
Don’t make the common mistake. Don’t hesitate, develop a defense strategy right away. The more time you give the government to build or maintain a bad perception of you, the more difficult it is to fix that perception on the back end. Find out today what Nick and his team of former government attorneys can do for you.
Why Lawyers Get in Trouble
- Tax Fraud (26 U.S.C. 7206)
- Bank Fraud (18 U.S.C. 1344)
- Insurance Fraud (18 U.S.C. 1007)
- Mortgage Fraud (18 U.S.C. 1014)
- Securities Fraud (15 U.S.C. 78j, 78jj; 18 U.S.C. 1348)
Theft & Abuse of Trust Account
- Theft of Government Funds (18 U.S.C. 666)
- Embezzlement (18 U.S.C. 641)
- Stealing of Client Funds
- Mail Fraud (18 U.S.C. 1341)
- Wire Fraud (18 U.S.C. 1343)
- Fraudulent Withholding of Settlement Monies
- Money Laundering (18 U.S.C. 1956)
- Obstruction of Justice (18 U.S.C. 1512)
- Perjury/ False Statement (18 U.S.C. 1001)
- Hiding Money for a Client
Mingling Legal & Business Interests
- Accepting Kickbacks for Referrals
- Willful Participation in Client’s Criminal Enterprise
In any “lawyer” investigation, it is important to realize the importance of securing experienced counsel. At Oberheiden P.C., our experience in defending lawyers allows us to know how to balance your obligations as a lawyer to a client and your interest of self-defense. Don’t hesitate with your call to us so that you don’t have to go through what these former members of the bar had to endure. Here are examples of recently indicted attorneys.
- Example 1: A Georgia attorney was indicted for wire fraud and aggravated identity theft. The government claims that the attorney used the identities of dozens of former clients to apply for hundreds of thousands of dollars in fraudulent litigation advances to pocket the loaned money himself. The clients were completely unware that their names were used for non-existing litigation matters.
- Example 2: An attorney was indicted and subsequently sentenced to 10 years in federal prison for stealing more than $ 25m from a federal healthcare program. The case has been investigated by the local U.S. Attorney’s Office, the FBI, the Department of Health and Human Services (HHS), the IRS, the Office of Inspector General (OIG), and the U.S. Postal Service. The attorney did not act in his capacity as an attorney, but rather as a business person.
- Example 3: A California attorney was indicted for accepting millions of dollars for illegal patient referrals in connection with compound pharmacies. The indictment claims that the lawyer acted as a marketer for a pharmacy and in that capacity obtained illegal monies. The attorney did not act in her function as an attorney.
- Example 4: A New York attorney lied to federal agents in connection with a federal criminal investigation. The U.S. Attorney’s Office indicted the lawyer under 18 U.S.C. 1001 (False Statement to a Federal Agent) and a federal judge in New York sentenced the lawyer to prison.
- Example 5: A Texas attorney was recently indicted for utilizing his trust account to hide his client’s money from government access and for failing to report and pay tax income. The government claims a conspiracy between client and lawyer and outlined how the trust account was further used to pay personal expenses to evade federal income taxes. The lawyer abused his IOLTA account to commit crimes.
- Example 6: A South Carolina attorney was recently charged with mail fraud and theft of government funds in connection with a failed election campaign.
- Example 7: A lawyer was indicted for his alleged role in a healthcare fraud conspiracy. The U.S. Attorney’s Office claims that the lawyer received kickbacks for referring PI clients to a hospital in exchange for cash. The federal Anti-Kickback Statute makes it a crime to incentivize anyone (not just physicians) to refer business to a healthcare entity or provider in exchange for remuneration. The lawyer did not act as a lawyer, but as a business person, according to the government.
- Example 8: An immigration attorney was indicted and subsequently sentenced to several years in prison for fabricating and manipulating immigration records. The attorney entered a guilty plea admitting that in several instances the attorney misrepresented the true immigration status of his clients to maximize profits.
How Can a Lawyer Defend Himself or Herself in Light of the Attorney-Client Privilege?
While it is true that lawyers are bound by the attorney-client privilege, they are not helpless in a situation when they become the target of an investigation. In general, the Attorney-Client Privilege protects from discovery confidential oral and written communication by a client with its attorney for the purpose of obtaining legal advice in the attorney’s capacity as a professional legal advisor. See Astra Aktienbolag v. Andrx Pharms., Inc., 208 F.R.D. 92, 103 (S.D.N.Y. 2002). In general, only communications seeking or providing legal advice are protected from discovery by law.
Crime-Fraud Exception. The attorney-client privilege does not apply if you or your client used your legal work product or advice to engage in a crime or fraud. If “the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud,” there is no privilege. see, e.g. Tex. R. Evid. 503(d)(1). If your services were used, with or without your knowledge, in order to engage in a crime or to defraud any third party, such conduct may result in a loss of the attorney-client privilege. See, e.g. Granada v. First Court of Appeals, 844 S.W.2d 223, 227 (Tex. 1992).
Advice of Counsel & Legal Malpractice. If your client attempts to assert an advice of counsel defense based on allegedly improper or erroneous recommendations by you, the Attorney-Client Privilege will be waived as to all relevant advice you provided to the client. This means that you may reveal any and all privileged and confidential information to third parties, including state and federal authorities. In re Fresh & Process Potatoes Litigation, 2014 U.S. Dist. LEXIS 50828 (D. Idaho Apr. 11, 2014). Similarly, if a client argues that you engaged in legal malpractice, courts authorize attorneys to defend themselves and the law permits attorneys to disclose confidential and privileged information about the client as part of their defense. See Home Indemnity Co. v. Lane Powell Moss and Miller, 43 F.3d 1322 (9th Cir. 1995).
Mistakes to Avoid When You Are Under Investigation
- Accept that You Are a Client, Not a Lawyer. Lawyers are tough clients to have. After all, they all went through law school, passed the bar exam, and they are familiar with the law and the legal process. However, when a lawyer is under investigation and seeks help, that lawyer must accept the fact that he or she is now the client, not the lawyer on the case.
- Talking to Federal Agents. Most lawyers do not realize that talking to a federal agent is governed by 18 U.S.C. 1001. This federal statute makes it a federal felony to lie, misrepresent, or withhold material information when talking to federal law enforcement. The consequence of that fact is simple, even though it is rarely followed. Do not, under any circumstances, talk to a federal agent without first being professionally and adequately prepared by experienced counsel. You will never be able to undo your statement and any incorrectness may lead to charges.
- Do Not Hesitate to Call for Help. Federal investigations are often a race against the clock. While cases may develop over years, it is often only a relatively short time frame between becoming aware of a pending investigation and the window of opportunity to act. If you have reason to believe you are or might be in trouble, call Oberheiden P.C. right away to increase your chances of non-prosecution.
Protect Your License. Call Oberheiden P.C. Today.
Contact federal criminal defense attorney Nick Oberheiden today for a free and confidential consultation. Nick is here to help and to accomplish the same results he has obtained for lawyers before you. All consultations are free and confidential.
- Personal Injury Attorneys Accused of Fabricating Accidents
- Corporate Attorneys Accused of Helping in Ponzi Schemes
- Attorneys Receiving Kickbacks for Referrals in Healthcare Cases
- Lawyers Targeted for Tax Fraud or Tax Evasion
- Lawyers Involved in Malpractice Investigations
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.