One snowy night, a former executive of a pharmaceutical company arrived home to find a car parked in front of her house. Two men in dark suits got out of the car, walked toward her, and identified themselves as federal agents. They wanted to speak to her, they said, about an ongoing investigation involving her prior employer. Did she have a few minutes to talk?
The executive responded that she would be happy to cooperate, but would need to schedule a better time. The agents were insistent, saying that they had flown in from another state to talk with her, but the executive politely held firm. She took the agents’ business cards and said she would get back to them. Then she went inside and called her former employer’s legal department.
Across the country, the CEO of a Fortune 500 company answered the doorbell in the evening to find two agents on his doorstep. They asked if they could speak with him for a few minutes. He told them that he had guests arriving for dinner in two hours, and the agents assured him that it wouldn’t take long.
His mind began racing as he wondered what they might be interested in. But he was confident he hadn’t done anything wrong, and figured that the matter would go away if he took care of it now. So he invited them in, sat down with them at his kitchen table, and answered their questions — for an hour and a half, with one of the agents taking copious notes of the conversation. The next day, the company received a subpoena from the Department of Justice, as part of an industry-wide investigation that lasted several years.
These stories are based on real-life instances in which executives came face-to-face with what is commonly known as the “knock and talk.” Law enforcement historically has used this investigative tool with great success to obtain statements from witnesses before they can consult with counsel. During a “knock and talk,” law enforcement agents approach an individual with whom they would like to speak, as part of an ongoing investigation. Often, the approach is made at the individual’s home in the evening, when she is likely to have her guard down. The agents generally do not serve a subpoena or otherwise compel anyone to talk. They simply ask if the witness is willing to do so, and make clear from their words and demeanor that they would very much appreciate a “few minutes” of her time. Very often, witnesses go along — and make statements, without the benefit of legal representation or advice, that can be used against them later in regulatory enforcement actions or even criminal prosecutions.
You may have heard of this tactic and believed that it was only used against petty drug dealers or the occasional fraudster accused of bilking investors. However, this method has long been employed to obtain evidence to bolster investigations involving alleged healthcare fraud, securities fraud, and antitrust violations, among others. Moreover, the government routinely approaches executives and former executives of major companies in every industry sector using this technique, and it is a bread-and-butter tactic in federal criminal and regulatory investigations.
In short, it is critically important to know your rights when the FBI or another law enforcement agency shows up at your doorstep. Below are practical pointers to remember if you ever are faced with this unnerving situation:
Understand that you are completely within your rights to speak — or not to speak — with law enforcement agents. However, there are virtually no circumstances in which talking to the government before consulting with counsel will benefit you. Whether you think you have anything to worry about or not, the government has some reason to believe that you have information relevant to their investigation — and unless you consult with counsel, it is very difficult to assess whether it is in your interest to talk with an agent. Speaking with the government without the benefit of counsel almost never makes the matter “go away”: it simply provides the government with another piece of evidence to use in building a case (against someone else, or possibly against you).
If you choose not to speak to an agent, be polite but resolute in declining the invitation. Agents are trained in techniques intended to make you feel as though you really should talk — that is, unless you have something to hide. Don’t give in to this pressure. Take their business cards or write down their contact information. Once you are in a private place, call your lawyer for advice. You and your lawyer can discuss whether meeting with the government is advisable, and if so, when and on what conditions the meeting will take place. You also should call your employer’s legal department and report the contact. Often, the company will recommend and pay for counsel with extensive experience in investigations to represent you, if you do not already have your own attorney.
If you do choose to speak to an agent on the spot, there is one inviolable rule: tell the truth. Do not lie or mislead the agent. Not telling the truth can be the basis for a prosecution for obstruction of justice or making a false statement to a federal agent, entirely separate from the underlying matter being investigated. The risk of unwittingly committing a false statement or obstruction violation is another powerful reason to obtain counsel’s advice before making any statement.
Haywood Gilliam is a partner with Covington & Burling LLP and the former chief of the Securities Fraud Section of the U.S. Attorney’s Office in San Francisco.