It is not entirely uncommon for an advisor to be contacted by criminal authorities regarding accounts they manage. While the contact is generally limited to information or documentation regarding the relationship, it is not a contact to be taken lightly.
Let’s consider the following hypothetical example (an analogous scenario could be an initial phone call from the FBI requesting information or documentation). You’re sitting in your office drinking your third cup of coffee when your secretary says there are two FBI agents who want to speak to you. Naturally you ask what it is about, but they refuse to provide her with any further information.
When you receive a call like this, your first decision will be your most important. You could tell your secretary you will not speak to them and direct them to your legal counsel. While this doesn’t satisfy your curiosity, it’s not an unacceptable response. Frankly, almost anyone who has experienced these types of visits will encourage you to do just that.
Let’s assume, however, that you do not tell them to just go away. Tell your secretary to put them in the nearest conference room and shut the door. Under no circumstances should you let them roam through the office. On your way to the conference room, ask your secretary or an associate to take copious notes of everything said during the meeting, beginning with the full identification of both agents.
Legal Fallout for Advisors
Beware! No matter what the circumstances of their arrival, there is absolutely nothing the FBI can do that requires you to speak to them on any subject whatsoever. However, when you walk into that room, you are voluntarily agreeing to speak to them and you may be waiving some very important rights. If you decide to engage them in conversation, you should immediately determine your own status. Are you a target of a criminal investigation or are you a potential witness against a coworker, employee or client? At this juncture, you should be obtaining information from the agents, not providing any information to them.
FBI agents always travel in pairs and write down what they think you said. Their notes then become gospel and nearly irrefutable. Consequently, even an innocent misunderstanding can lead to catastrophic consequences in a criminal prosecution. It’s not what you say to the FBI that you need to fear, it’s what the FBI agents are prepared to swear you said.
Therefore, as Mark Twain once said, “It’s better to sit quietly and appear stupid than to open your mouth and prove it.” Your best choice is not to give them any information until you have had an opportunity to consult with a professional criminal defense attorney.
If the agents come with a grand jury subpoena, just take the subpoena and ask them to leave. Call your corporate attorney and get a referral for a criminal defense attorney.
If they arrive with a search warrant, let them search. Under no circumstances should you resist or struggle with the agents; you will surely be arrested for obstruction of justice or even worse, get hurt. Remember, the government can get a warrant to search your office even if it has no basis to believe you have committed a crime. All they need to allege is that there may be evidence of a crime on the premises, regardless of who committed it.
Under these circumstances, your best alternative is to take your cell phone, briefcase and laptop, and leave. Unless the agents have a warrant for your arrest, they cannot force you to remain on the premises while they search. If the agents ask for the combination of the safe or the password for the computers or even the location of files or automobiles, you should refuse to respond. The legality of the search can be litigated at a later time, but the voluntary disclosure of passwords, combinations or locations cannot.
These are just a few suggestions as to how to handle an unexpected visit from the FBI or any other government agency. The most important thing you can do is immediately consult with a professional criminal defense attorney.