The Importance of Full Disclosure to Your White Collar Defense Attorney

April 2019

This article is one of a series of articles on white collar defense and investigations.

Let me start by saying that I hope you never have to confront the issues raised in this article.  But should you or someone you know face such issues, this article will provide you with information that could prove to be very useful. 

Honesty is the Best Policy

As a white collar defense lawyer for the better part of two decades, I cannot stress enough the importance of developing a trusting relationship with your attorney when facing potential criminal charges.  First and foremost, you must be completely truthful and fully forthcoming to your attorney in connection with your culpability as to the charges you face.   Your lawyer cannot properly defend you and give you sound legal advice if he/she doesn't know exactly what happened, and particularly if you intend to cooperate in an investigation. In such a case, you must tell your attorney about any prior criminal activity, even if it is unrelated to the case being investigated.  When seeking legal advice from your attorney, any information you communicate is privileged -- the government is not entitled to know what you tell your attorney, and you are therefore free to tell your attorney about any of your misdeeds. 

Full Disclosure is Fundamental

Once possessing a full set of facts, your attorney can develop an appropriate defense strategy for you.  If you withhold information, whether it is because you haven't fully accepted responsibility for what you did, or because you are embarrassed, concerned for your reputation, concerned about what your attorney may think of you, or for any other reason, your attorney simply will not be able to give you the proper legal advice you need.

For most clients, entrusting a defense attorney with the details of your history and actions is a process.  It often takes time to build a relationship and the necessary foundation of trust before opening up, but it must be done, and the sooner the better.

Hypothetical Cooperation Scenarios

Let’s assume that you run a medical laboratory, and were involved in a fraudulent kick-back scheme in which you paid-off doctors in exchange for lucrative referrals for medical tests.  You receive a federal grand jury subpoena for testimony and records.  When you first discuss the case with me, you are hesitant to “come clean” about the kick-backs.  You then discuss what to do with your spouse, and decide to tell me everything, and that you want to cooperate with the government.  Armed with this information, I will quickly reach out to the prosecutor, schedule a proffer session, offer to have you fully cooperate, and ultimately attempt to convince the government not to bring any charges against you.  You may have to testify before a grand jury or even at trial, but it’s well worth it if you aren’t charged, or if any charges against you are substantially reduced. 

As another example, suppose you are being investigated in a bank fraud case, and are considering cooperating with the government.  As is my practice, I advise you to disclose any unrelated criminal activities that you either participated in or knew of.  Suppose that, during debriefing, you reveal to me a fraudulent scheme in which you were involved or knew of that is unrelated to the scheme for which you are being investigated.  I would relay this information to the government.  They then might open up a new investigation, for which you would get cooperation credit. 

Proffer Dos and Don’ts

Before an attorney or a client can meet with prosecutors and agents for an evidence proffer concerning the matters being investigated, the client must be truthful, and provide a complete and accurate accounting of the alleged events and any prior illegal activities to his or her attorney. This will enable the attorney to make an informed decision whether to even provide a proffer.  Moreover, if incomplete or untruthful information is provided to prosecutors and government agents by a client during a proffer session, the client can be prosecuted for false statements to the government and/or obstruction of justice, offenses which are often easier to prove than the underlying crime itself.  Finally, false testimony before a grand jury or at trial can result in perjury charges, as well as obstruction charges. 

Your Attorney’s Obligations

It is important to recognize that your attorney also has obligations - - to keep you informed as to what is going on in your case and what to expect going forward, in an effort to make you feel comfortable and encourage full candor from you. 

The Takeaway

You must be honest and truthful with your white collar attorney, or indeed, any attorney you retain in a litigation, and not hold anything back. This permits your attorney to develop an appropriate legal strategy and gives you the best chance for the most favorable outcome possible under the circumstances of your case.

For more information on this issue and related matters, please contact:

David M. Rosenfield at [email protected] or (212) 592-1513.

© 2019 Herrick, Feinstein LLP. This alert is provided to inform clients and other parties about news and legal developments that may affect or interest them. The information is not intended as legal advice or legal opinion, and should not be construed as such.