By: Patricia McHugh Lambert, Esquire and Aidan Smith, Esquire
Knock, knock! Who’s there? It’s the FBI. Or a State Trooper. Or an investigator from the Insurance Commissioner’s office. After the knock, the door opens and the business professional is handed a subpoena to appear and give testimony. No matter how politely the envelope is delivered, what is being delivered is always unwelcomed news.
The business professional needs to decide what to do next. Although each situation is different, there are some fundamentals do’s and don’ts in dealing with a grand jury or investigatory subpoena.
- Accept the subpoena politely. Refusing to accept a subpoena does not work. In most jurisdictions, a subpoena does not have to be placed into a person’s hands. It is officially served no matter how it is delivered. It does not help the situation to become belligerent with the law enforcement officials delivering the subpoena. In fact, if a person becomes too obstreperous, charges relating to obstruction or interference could be filed.
- Politely refuse to answer any questions without a lawyer. Too often, people who are served with a subpoena think that they can talk their way out of the situation. But anyone who has watched an episode of Law & Order understands that law enforcement officials are almost always in a questioning mode. Answering questions can get someone into trouble. For example, federal law prohibits a person from misrepresenting or lying to a federal agent. State laws have similar “do not lie” A business professional being served a subpoena should do no more than identifying themselves without speaking to a lawyer.
- Do not consent to a search without a search warrant. A grand jury subpoena requesting testimony does not permit the seizure of documents. Without permission, documents cannot be seized without the service of an official search warrant (or another type of official and formal request). To the extent a search warrant is served, the business professional should watch, take notes, and observe what it being taken. They should also immediately call their lawyer for advice as to what to do.
- Politely ask that law enforcement officials leave. After a grand jury or investigatory subpoena has been served, law enforcement officials generally have no right to remain on premises. They will generally leave the premises if one politely and firmly asks them to leave.
- Do not underestimate the power of a subpoena. A grand jury/investigatory subpoena cannot be ignored. If a person does not show up to provide testimony after being served a subpoena, there can be serious consequences and potential criminal prosecution.
- Do not destroy or alter records. Federal and state law makes it clear that a person who receives a subpoena may not delete, alter or destroy records that have been requested. Obstruction of justice is generally a federal felony. That said, records that have not been requested do not have to be produced. In general, unrequested information does not need to be produced. However, all records relating to the area of inquiry should be reviewed before any testimony is provided. This review should include consideration of all compliance issues, whether there are missing documents, and whether documents reveal inconsistencies.
- Call a lawyer. Lawyers can help a business person under their rights and obligations. Lawyers can help a person understand the potential exposures and whether there are risks. For example, a lawyer may contact the prosecutor issuing the grand jury subpoena. That inquiry may reveal that someone entirely unrelated to the business is being investigated and that there is no real risk to production of records or testimony. The lawyer may be able to negotiate a limited scope of testimony agreement, or some form of immunity for the statements that will be given. A lawyer can sometimes work wonders. When they can’t work wonders they can advise their clients of the risks.
The best advice for dealing with a grand jury subpoena or investigatory subpoena is to have a plan in place to deal with it before the knock comes.
Patricia McHugh Lambert has over 35 years of experience in handling complex commercial litigation and insurance matters. Ms. Lambert has worked on national class actions, significant litigation and regulatory matters for Fortune 500 companies. She has also assisted small and mid-sized companies and business executives with contract, real estate and commercial disputes that needed to be resolved quickly and efficiently. Ms. Lambert is best known as an attorney who knows the field of insurance. She has represented insurers, policyholders, and insurance producers in disputes both in court and before the Maryland Insurance Administration. Ms. Lambert can be contacted at 410-339-6759 and plambert@pklaw.com.
Aidan Smith is a Member at PK Law and part of the firm’s General Litigation/Insurance Group. Aidan focuses his practice on general litigation, criminal defense and family law matters. His ability to listen to his clients, assess their issues and concerns and use his knowledge and experience of the criminal and civil judicial systems to help them resolve their situations has been recognized and praised by many of his clients. Aidan can be reached by phone at 410-339-6764 and by email at asmith@pklaw.com.
