Last week, one of my clients got a letter from a state Attorney General. The letter requested information about two of the organization’s former employees. When the client forwarded me the letter, I suggested that I would call the author and confirm that my client wasn’t a target of the investigation. My client was nervous. “Won’t having a lawyer call on my behalf make me look guilty?” the client asked, continuing “Don’t only guilty people need lawyers?”
There is much to unpack there. I’ll start with a common adage: when a lawyer represents themselves, they have a fool for a client. Experience has taught that even lawyers benefit by bringing in another pair of eyes to handle problems. If lawyers shouldn’t represent themselves, it is extra clear that a non-lawyer shouldn’t.
There are many reasons for this. First, you don’t know what you don’t know. Again, a fresh pair of eyes can be helpful. But there are other benefits to having a lawyer make contact.
If you call an investigator, nothing will stop them from starting to interrogate you. They can ask anything they want. If you’re worried about how it will look having a lawyer call on your behalf, imagine how it will look if you try to shut down an agent’s questions – when, mid-call, you regret not engaging counsel. Worse yet, let’s say that you make some factual mistake during the call. You’re now on the hook for making a false statement during an investigation. Having a lawyer make the call on your behalf provides an inherent buffer, lowering the risk that the call takes an unexpected turn.
Second, I wouldn’t tie yourself in knots trying to determine whether a particular course of action looks guilty or not. After all, agents are well-aware of the fact that people think it makes them look bad to get a lawyer. The result could be some sort of psychological Catch-22: guilty people don’t retain counsel for fear of looking guilty. You may arouse suspicion by NOT engaging counsel. Don’t get trapped by mind games about appearances. Focus on substance.
But I really want to emphasize the strongest argument for engaging counsel. If you’ve ever watched a cop show or read a newspaper article about investigations, you know the length to which a government agent will go to try to keep someone from engaging counsel.
There is a reason for that.
People who have counsel are less likely to get convicted. Agents don’t want people to get counsel, because it makes their work more difficult. And that should tell you all you need to know. This point is illustrated brilliantly by a Gary Larson cartoon. The cartoon features a man talking to a shark in a boat, as other sharks circle hopefully. The shark says “I’ll tell my people you’re going to stay in the boat, but I warn you, they’re not gonna like it.”
It’s absolutely true that government agents will be annoyed at you for getting counsel. But the reason for their displeasure is that their job will be harder.
Larson’s The Far Side offers the perfect analogy. Would you rather jump in the water and have happy sharks (government agents), or stay in the boat – that is, engage counsel and refuse to talk, and annoy them? Personally, I am staying in the boat. Finally, the letter ends with the statement “Please note that the data regarding investigations is confidential, and I request that you treat this information accordingly.” Just a reminder that while the STATE may be required to keep the information confidential, YOU are not. The government’s request is just that: a request. That’s importantly distinguishable from a requirement.
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