INTRODUCTION
The greatest challenge to a lawyer in the representation of one who is the subject or target of a criminalinvestigation comes from the fact that, in most cases, he or she is unaware of the investigation until it is wellunderway, and has already picked up momentum toward the initiation of criminal charges.
It is uncontrovertible that many criminal charges can be avoided by early intervention by experienced counsel.Those that cannot be avoided can certainly be better defended by an attorney who has entered the fray early inthe process, and is fully aware of the nature and scope of the problem by the time an indictment is returned.
Hence, it is valuable to focus on the response to a criminal investigation, particularly in the health care field, inwhich even the most careful and conscientious providers are under constant and inquisitional scrutiny. Thisscrutiny comes from intermediaries and investigators with the burning desire to claim they have discovered fraud.
This article will outline the manner in which such investigations begin, how to prepare for them, and how to dealwith them once the fact of the investigation becomes known.
THE FIRST NOTICE OF A CRIMINAL INVESTIGATION
There is, of course, no precise list of how a health care criminal investigation begins. A criminal investigationcan have as its genesis an anonymous tip, a complaint from a disgruntled employee or, more likely, a disgruntledformer employee, information provided to federal authorities by a competitor, the filing of a qui tam lawsuit, oran audit by an intermediary. Information from such sources finds its way through fraud units of intermediaries tothe OIG of HHS, to the TBI or FBI and, ultimately to one of the federal health care fraud units within the Officesof the United States Attorneys.
Notice of a criminal investigation can be very clear, such as the execution of search warrant or service of a grandjury subpoena for testimony or documents. Now we can expect the first notice of trouble for a health careprovider in the form of AIDS, Authorized Investigation Demands pursuant to 18 USC 3486.
Sometimes, however, the fact that a criminal investigation is underway must be determined from more subtleindications. Notice may come from the fact that employees (current or former) are being interviewed at their homes, or a change in the pattern of regulatory inspections or audits.Whatever the means of notice, counsel for a health care provider in today’s atmosphere will do well to anticipatethat, at some point, most providers will feel the pressure of such an investigation, whether deserved or not. Thosethat give thought to that prospect and plan accordingly will have the best chance to avoid criminal prosecution,and failing that, to properly defend themselves.
PREPARING FOR A CRIMINAL INVESTIGATION
Preparation for a criminal investigation must be done in a number of subject matter areas. The preparation for response to grand jury subpoenas and authorized investigation demands altogether differentfrom the preparation for response to the execution of a search warrant. The grand jury subpoena and theinvestigative demand normally call for a response by the submission of documents after a period of time. In fact,18 USC 3486 specifically provides for Aa reasonable period of time within which the objects can be assembledand made available.@ The execution of a search warrant, on the other hand, is without prior warning or notice.The only warning your client has is that of the executing officer Aknocking and announcing@ his or her identityand purpose. Such Awarning@ is normally followed by a large number of armed agents wearing blue jackets with gold letters FBI on the back, swarming the premises, bringing shock and fear to the management and employees.
Under the latter circumstances, absent prior planning and coordination, the result is chaotic. You, as counsel,may be miles away, perhaps in another city or state. Your hospital administrator, home health care executive, ordoctor has no clue as to how to react or what to do. Employees have no idea whether they must submit to theinterrogation which regularly accompanies such raids or even whether they can or should stay or leave. I canassure you that the execution of a search warrant is the result of a carefully thought out plan, with differentagents assigned to different parts of your clients offices and assigned to the task of interrogating employeesexpected to be present. The prosecution knows ahead of time what their agents are going to do, as well as howand when they are going to do it. May it never happen to your client, but if it does and you have not performedbasic preparation for such event, you will bear a heavy burden for what follows.
Preparing for the Execution of a Search Warrant
A search warrant will normally be the investigative method of choice in those situations in which the government perceives that the A prior notice@ provided by subpoena or investigative demand may result in the destruction of documents or an incomplete or dishonest response.
A reasonable course of action in preparation for the execution of a search warrant will involve the designation and training of a response team@, the education of employees as to their rights and responsibilities in the event of a search or interrogation, the reasonable efforts to protect privileged documents, and anticipating and preparing for media attention.
The Response Team
First, the provider should put together a team to respond to the crisis. This team should consist of a response coordinator for each facility it operates, the corporate counsel, and managers of various relevant work areas. Thisteam should have the prior guidance of counsel and should be provided with a check list of actions to be taken ifand when confronted with officers or agents armed with a search warrant.
The Response of the Response Team-
Actions to be taken at the beginning of the search:
(1) Do not obstruct or interfere with the execution of the search warrant.
(2) Request a copy of the search warrant and the affidavit in support of the search warrant. Often the affidavit insupport has been sealed, but if it has not it should be provided with the warrant.
(3) Request identity of the agents or officers serving the warrant and conducting the search. Most federal agentscarry professional cards. Ask that each agent provide a card, and make a list of all of the agents.
(4) Immediately notify corporate counsel and outside counsel. Fax a copy of the search warrant to counsel,together with the name of the agent serving the warrant.
5) Request that the search not commence for a reasonable time sufficient for counsel to be notified and havetime to arrive at the place to be searched. This will not normally be granted, but should be requestednevertheless.
(6) Notify government agent that all inquiries should be directed to the response coordinator.
(7) Close office and send home all employees except the members of the response team.
Actions to be taken during the search:
(1) The response coordinator/s should accompany the agents at all times during the search. The conduct,
statements and questions of the agents should be carefully recorded.
(2) The areas of search should be recorded, together with the identity of the agent/s conducting the search of eacharea.
(3) Carefully note or record the length of the search, the items searched for and seized, and the location fromwhich the items or documents were taken.
(4) If employees consent to an interview (see below) the identity of each employee interviewed and careful notesof any statements made should be taken.
(5) In the event agents seize files which contain privileged documents, such as correspondence to and fromcounsel, internal audits prepared by or at the direction of counsel, etc., request that such documents be sealedwithout further examination, and delivered to the magistrate for an in camera review before being turned over tothe law enforcement agency, and, if necessary, pending appropriate motions by counsel for the provider.
Actions to be taken after the search:
(1) Obtain a copy of the inventory of the search from the agent/s. This will normally be left by the agents at theconclusion of the search.
(2) Arrange for copying of documents seized. Normally this should consist of one copy of everything that wasseized and a copy of documents designated by counsel as those necessary to analyze to determine the areas ofexposure and potential course of the investigation.
(3) Consider the filing of a Motion to Unseal Affidavit, and a Motion for the Return of Property, pursuant to Rule41, Federal Rules of Criminal Procedure
(4) Arrange for an early meeting with the Assistant United States Attorney, to determine, so far as possible, thenature, scope and direction of the investigation.
Responding to AIDS and Grand Jury Subpoenas
As previously noted, the service of an investigative demand and/or a grand jury subpoena, whether duces tecumor testimonial, normally allows for a more deliberate and considered response than that occasioned by the execution of search warrant.
The application of the concept of a Response Team is also helpful in dealing with such demands or subpoenas.The team should consist of a response coordinator, corporate or provider counsel, outside counsel, and onemanager or employee from each facility, department, or area covered by the subpoena or demand. Acting withthe guidance of counsel experienced in such matters, the response coordinator and his or her team should:
(1) Note the date and time of service, along with the identity and title of the agent serving the subpoena.
(2) Immediately suspend all routine purging or destruction of documents.
(3) Carefully, with the advice of counsel, review the investigative demand or subpoena, determining its natureand scope.
(4) Meet with senior management and those directly involved with the facility, division, activity or programdescribed in the subpoena to identify all sources of the requested documents and the location of thosedocuments.
(5) Assign the task/s of collecting documents called for by the subpoena to particular member of the responseteam according to his or her area or department, and the delivery of such documents to the response coordinator.
(6) Prepare a memorandum setting forth the assignments, setting deadlines for the delivery of documents to theresponse coordinator, making clear that no documents are to be destroyed or altered, and informing all concernedthat failure to produce any requested document, whether intentionally or otherwise, will expose the provider andits employees to accusations of obstruction of justice.
(7) Bate stamp all documents to be produced and create a database or other index to organize, catagorize andidentify the documents produced.
(8) Separate all privileged documents, including correspondence and memoranda to and from counsel as well asinternal audits performed at the direction of counsel, and prepare a letter to the appropriate Assistant UnitedStates Attorney, advising of the claimed privilege.
(9) Copy all documents to be produced, being sure that the copy is in the exact order and form as the documents produced.
Counsel for the provider should meet as early as possible with the Assistant United States Attorney assigned to the matter, to determine, so far as possible, the nature and scope of the inquiry or investigation. Depending on thestrategy required by the circumstances, counsel may want to discuss the possibility of narrowing the scope of thesubpoena. If the scope of the investigative demand or subpoena is unreasonably broad, lacking in particularly,includes privileged or otherwise protected materials, or in the case of subpoena, constitutes an abuse of the grandjury process after an indictment has been returned, and no agreement can be reached as to such matters with theUnited States Attorney’s Office, relief can be sought from the United States District Court. Mere excessive costof producing the documents is rarely, if ever, enough to quash the subpoena.
Education of EmployeesRights and Responsibilities
The Question of Whether and When to Educate EmployeesThe employees of any company, agency or provider in an industry or activity that has been targeted forinvestigative or prosecutorial scrutiny, such as those in health care, should be carefully informed as to their rightsand responsibilities in the event of an investigation. Some agencies express reluctance to do so because ofmanagement concerns that even bringing up the possibility of an investigation will unnecessarily cause concernand damage morale among the employees.
While such concern is understandable, it can be lessened by an explanation to the employees that suchinvestigations or inquiries from state and federal agencies have become routine, even though, the provider hasdone nothing wrong, and that this step is being taken on the advise of counsel as a routine part of employeeeducation. In order that such concerns be reduced, it is recommended that such material simply be included inemployee meetings that have other purposes, such as discussing general office policy, changes in employeeinsurance or other benefits, or other similar matters.
When to expect employee interviews
Employee interviews are inevitable in any investigation, and while they may be the first indication of theexistence of an investigation, such interviews often accompany the service of a search warrant. Agents assistingwith the execution of a search warrant are often assigned to attempt interviews with certain personnel during thesearch. When the first indication of an investigation is the service of an investigative demand or a grand jurysubpoena, a provider can expect that reports of employee interviews by IG’s or FBI agents will soon follow.
If some prior education of the employees has not occurred irreparable damage may result from statements madeby employees that are uninformed, ill informed or willing to speculate about matters outside their knowledge.
What should employees be told
Most employees who are uninformed and are approached by government agents believe that they have no choice but to speak with such agents. They are often confronted at home, sometimes at night, without prior warning, Abadged@ (shown agency credentials) and told that the agent is there to talk to them. You can count on the factthat, even if the employee has some exposure, he or she will not be informed by the agent that they need notspeak with the agent if they do not want to do so, or that the time and place of an interview can be determined bythe employee. Nor will the employee be told that, if the employee desires, an attorney, either personal to them oran attorney for the provider, can be present at such interview.
Since you can anticipate that no such advice will be provided by the investigating agency, it is incumbent oncounsel for the provider to do so. In order to prevent misunderstanding, confusion, or misconstruction of theadvice, it is recommended that the advice to employees be reduced to writing. The format of a notice or advice to employees which we have used in the past is as follows:
NOTICE TO EMPLOYEES
The company has been served with a subpoena from the (identify investigating agency) which seeks certain company records relating to (state general scope – such as accuracy of certain claims of reimbursement).
The legal staff for the company is providing you this letter to advise you that you may be contacted by investigators seeking to interview you regarding any knowledge you may have about this matter. You should beaware of the following:
(1) Investigators have the right to contact you and to request an interview.
(2) You have the right to speak with investigators. You also have the right to request a time and place for thisinterview which is convenient to you.
(3) You also have the right to decline to be interviewed.
(4) You have the right to consult with legal counsel prior to deciding whether to submit to an interview. Counselfor the company is available to meet with you. You also have the right to retain your own attorney.
If you do consent to an interview:
(1) You have the right to have an attorney present during the interview, to confer with an attorney in advance,and to terminate the interview at any time.
(2) Statements made to investigators may constitute legal admissions which may later be used as evidenceagainst you, the company or both, in legal proceddings.
(3) Remember that you should TELL THE TRUTH, and should state only matters you know to be a fact. A falsestatement to an investigator may constitute a criminal offense.
Meeting with Employees
There are advantages for counsel to meet with affected employees and to distribute a letter or notice along thelines set forth above at such a meeting, or at a series of meetings if the number of employees render a singlemeeting impractical. By meeting with such employees at the outset of the investigation, counsel can often dispelrampant rumors, quiet some fears, and respond appropriately to questions and concerns. It is advisable to recordsuch meetings to guard against later claims that counsel was attempting to interfere with or obstruct theinvestigation.
Responding to a Grand Jury Subpoena for Testimony
It may be the case that counsel for each employee (or clearly segregated groups of employees) will be in placebefore a grand jury subpoena is served. If not, the service of a grand jury subpoena should make clear thatcounsel for the employee is necessary. The corporation’s internal investigation will hopefully be underway by thetime a grand jury subpoena is served and therefore the employee will have been interviewed by the company’scounsel. See supra. There will therefore be a basis to evaluate the employee’s criminal exposure and thepotentially incriminating information the employee knows. If not, the service of grand jury subpoena shouldprompt these steps.
Immediately after appearing before the grand jury, each witness should be debriefed while the witness’srecollection is fresh. It is important to ascertain the crux of the questioning by taking notes of the prosecutor’squestions. Further monitoring of the grand jury is recommended by keeping track of witnesses that appear beforethe grand jury and attempting to interview all such witnesses.
FINDING THE WEAKNESSES AND THE STRENGTHS:THE INTERNAL INVESTIGATION
Immediately upon notice that the company is being investigated for criminal violations, an internal investigation should begin. The purpose of this investigation is simple: find the facts. The undertaking of the investigation ismore complicated.
The first thing the provider must decide is who will conduct the internal investigation. While the corporationmay choose to have an non-attorney orchestrate the investigation, there are distinct advantages to having anattorney do so. First, an investigation is likely to raise some complex and sensitive legal issues. Second, theattorney-client privilege will be able to protect communications integral to the investigation.
Once the provider decides to use an attorney to conduct the investigation, it must decide whether that attorneywill be in-house or outside counsel. While in-house counsel may have more access to the information about the outside counsel has the advantage of appearing more objective and if properly selected will already have a working relationship with the prosecution representatives and agents in charge of the investigation. Forthis reason the government’s lawyers and agents may respond better when working with outside counsel. Onbalance, the most effective internal investigations are conducted by outside counsel working closely with in-house counsel.
To initiate the internal investigation, management should distribute a letter authorizing the investigation. Furtherthe letter should inform the employees of the investigation and seek the employee’s cooperation with theinvestigation.
During the investigation all employees who have or are likely to be interviewed by the government should beinterviewed. At the beginning of the interview counsel should inform the employee that counsel is thecooperation’s attorney and not the employee’s personal attorney. Further, counsel should advise the employee thatthe attorney-client privilege is held by the cooperation. Finally, the employee should be informed that he or shehas the right not to talk to counsel (or to the government); and, if the employee chooses to talk, he or she mayhave a personal attorney present.
Counsel must keep a record of the information told to the employee at the initiation of the interview. Counselmust also be careful not to engage in Amisleading@ conduct or speech which might be constructed as tamperingwith the witness in violation of the Federal Obstruction of Justice statutes. See 18 U.S.C. 1512 and 1518(discussion supra). Finally, it is a good idea for counsel to have an assistant present who can be a witness to theprocedure followed and the conversation. The interviews should not be recorded and the employee should not beasked to review and sign the memorandum of the interview. If recorded or signed, the memorandum of interviewbecomes the statement of that witness. Thus, if that employee is called as a witness for the company at trial, theprosecution would be entitled to his or her statements. The creation of such witness statements should thereforebe avoided.
While conducting the internal investigation, counsel should remember to interview former employees andsuppliers as well. Counsel must bear in mind that no attorney-client privilege will apply to these interviews.Further, these people are likely to be hostile witness at trial.
At the conclusion of the internal investigation counsel should prepare a memorandum which summarizes thefacts; analyzes the applicable legal principles; identifies any weaknesses in the corporation’s practices; outlinesarguments against criminal or administrative sanctions, and recommends any corrective actions or othermeasures which would improve operations.
ISSUES THAT CUT ACROSS ALL ASPECTS OF THE COMPANY’S RESPONSE
There are several issues that counsel will have to keep mind in responding to a criminal investigation andconducting an internal investigation. The following paragraphs will serve as checklist of those issues and therules that govern decisions with respect to them.
A. Protecting Privileged InformationFrom the outset of the criminal investigation, attention should be given to protecting privileged information.Privileged information issues arise at all stages of the investigation. Government agents may seek materials forwhich a privilege may be asserted in the execution of a search warrant, an administrative inspection, or through agrand jury subpoena. Potentially applicable privileges include attorney-client, work product, self-evaluation andthe fifth amendment.
Attorney-Client Privilege
The attorney-client privilege protects all confidential communications between the client and the attorney madefor the purpose of securing or rendering legal advice s opposed to business advice. Upjohn v. United States, 449U.S. 383 (1981); Diversified Industries, Inc. v. Meredith, 572 F. 2d 596, 610 (8th Cir. 1978) (en banc). Further,the individual must have been a client or a potential client at the time of communication. 1d. This privilege does not extend to all communications.
The attorney-client privilege cannot be asserted for communications made tothird parties or for the purpose of committing a crime or tort.The attorney-client privilege can sometimes extend to communications made between the corporation’s attorneyand corporate employees depending upon the context the communication was made. See Upjohn v. UnitedStates, 449 U.S. 383 (1981); In re Coordinated Pretrial Proceedings in Petroleum Products Anit-Trust Litigation,658 F. 2d 1355 (9th Cir. 1981), cert. denied, 455 U.S. 990 (1982) (former employees); Baxter TravenolLaboratories, Inc. v. LeMay, 89 F.R.D. 410, 413-14 (S.D. Ohio 1981) (prospective employees). Certainrequirements must be met before such a privilege attaches. First, the communication must be made within thescope of the employee’s corporate duties. Secondly, the communication must be made at the direction of theemployee’s supervisor. Likewise, the employee’s communication must be essential to the corporation’s counselfor purposes of providing legal advice to the corporation. 1d.
Work Product Privilege
In addition to the attorney-client privilege, counsel may also protect the disclosure of materials under the workproduct doctrine. See Hickman v. Taylor, 329 U.S. 495 (1947); Fed. R.C.P. 26 (b)(3). The work product doctrineprotects the disclosure of materials prepared by the attorney in anticipation of litigation. 1d. These materials mayinclude witness interviews containing counsel’s thoughts and impressions and any documentation of counsel’splanning or legal strategy (i.e. notes, memoranda, correspondence, etc.).
Work product privileges also extend to materials prepared by those hired to perform services for the criminalinvestigation. These include but are not limited to the following: private investigators, accountants, consultantsand contractors. It is therefore important to have such expert assistants report only to counsel representing thecorporation.
However, the work product doctrine is only qualified privilege. Work product relating to factual matter and notopinion may be obtained by the prosecution by showing a substantial need in the preparation of its case or anundue hardship in obtaining the substantial equivalent of the materials by other means. See e.g., United States v.Brown, 478 F. 2d 1038, 1041 (7th Cir. 1973).
It is important to note that some materials produced by a consultant or auditor may not be protected under thework product doctrine or the attorney-client privilege. An example would be a consultant’s reports relating to thecorporation’s compliance with environmental regulations. Furthermore, audits are even harder to protect whenthey are routine and used for business advice as opposed to legal advice. As discussed above, since self-auditreports can be key evidence for the prosecution’s case, concerted efforts must be made to prevent theirdisclosure.
Self-Evaluation Privilege
The self-evaluation privilege is an emerging legal principle that has not been accepted by all courts, and somecourts only recognize the privilege in certain areas. See e.g., Ligon v. Frito Lay, 19 Empl. Prac. Cas. (BNA) 722(N.D. Tex. 1978); EEOC v. ISC Financial Corp., 16 Empl. Prac. Cas. (BNA) 174 (W.D. Ms. 1977). It was firstarticulated in Bredice v. Doctor’s Hospital, Inc., 50 F.R.D. 249 (D. Ct. D.C. 1970), aff’d mem., 479 F. 2d 920(D.C. Cir. 1973).
The self-evaluation privilege grants qualified protection for documents falling within the grey areas surroundingthe attorney-client privilege and the work product privilege. See Note, The Privilege and Self-Critical Analysis,96 Harv. L. Rev. 1083 (1983). Most courts that recognize the self-evaluation privilege require that three criteriato be met. First, the information must result from a critical self-analysis undertaken by the party seekingprotection; second, the public must have a strong interest in preserving the free flow of the type of informationsought; finally, the information must be of the type whose flow would be curtailed if discovery were allowed.@1d. at 1086.
The privilege will also not be extended unless the document was prepared with the expectation that it would bekept confidential and has retained its confidential nature. See Dowling v. American Hawaii Cruises, Inc., 971 F.
5/16/2018UntitledDocumenthttps://www.rddjlaw.com/articles/resp_health.html8/102d 423 (9th Cir. 1992); James F. Flanagan, Rejecting a General Privilege for Self-Critical Analyses, Geo. Wash.L. Rev. 551, 574-76 (1983) (citing 8 J. Wigmore, Wigmore on Evidence 2285 at 527 (1961); see also Peterson v.Chesapeake & Ohio Ry., 112 F.R.D. 360, 363 (W.D. Mich. 1986) (holding that self-evaluation privilege was notavailable because the report was not Aperformed with the expectation that the analysis [would] remainconfidential@ and in fact had not been kept confidential); Westmoreland v. CBS, Inc., 97 F.R.D. 703, 706 (S.D.N.Y. 1983) (same).
The self-evaluation privilege is most often used to protect documents created as a result of a confidential internalinvestigation to determine if the law has been violated. Like other privileges, the self-evaluation privilege is notabsolute. See In re Crazy Eddie Securities Litigation, 792 F. Supp. 197, 205 (E.D.N.Y. 1992) (refusing to allowthe plaintiffs access to the accounting firm’s internal report). It is to be applied only to Aanalysis or evaluationitself and not to the facts upon which the evaluation was based.@ 1d. at 204.
One area in which the self-evaluation privilege has had little recognition to date is in the area of environmentalaudits. Cf. United States v. Dexter Corp., 132 F.R.D. 8 (D. Conn. 1990)(holding that self-evaluation privilegeshould not protect environmental audits in a Clean Water Act civil case). Accordingly, the self-evaluationprivilege is far from a solid shield against disclosure of an internal environmental audit.
Fifth Amendment Privilege
Only an individual and not a corporation may use the fifth amendment privilege. If a provider is incorporated,this privilege is most often asserted in the situation where the act of producing a document itself is incriminating.The exposure of individuals within the organization should be carefully analyzed and individual attorneys shouldbe retained to advise them in regard to that exposure and the rights that person has against self incrimination.
Asserting Privileges
If the corporation asserts that certain documents contain privileged information, the prosecution may request aAVaughn@ index. See Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973) cert. denied 415 U.S. 977 (1974). AAVaughn@ index requires the party claiming the privilege to list all documents claimed to be privileged and thereasons for their privileged character without disclosing their confidential nature.
In addition to a AVaughn@ index, the prosecution may attempt to redact the privileged documents to require thedisclosure of those parts that do not contain confidential information. See United States v. United ShoeMachinery Corp., 89 F. Supp. 357, 359 (D. Mass. 1950). Under the doctrine of severability , the party claimingprivileged information must disclose all parts of the documents that do not clearly contain privilegedinformation.
Counsel must zealously protect the documents containing privileged information because the ramifications ofdisclosure can be devastating. Not only could the disclosure significantly assist the prosecution, but thedisclosure could also constitute a Aknowing and voluntary@ waiver as to all communications on the samesubject. In re Martin Marietta, 856 F. 2d 619 (4th Cir. 1989); Westinghouse v. Republic of the Philippines, 951F.2d 1414 (3d Cir. 1991).
B. Obstruction of Justice Throughout the investigative process, counsel for the company and corporate representatives must walk a linebetween aggressively responding to a criminal investigation and refraining from conduct that could beconstructed as obstruction of justice.
There are four federal statutes which deal with the issue of obstruction of justice: 18 U.S.C. 1503, 18 U.S.C.1505, and 18 U.S.C. 1512m and now health care’s own, 18 U.S.C. 1518, part of HIPAA, as enacted in 1996.These statutes are interpreted broadly and an understanding of them is essential when representing a providerunder investigation for alleged health care fraud.
Section 1518 appears to be the broadest of them all and provides as follows: OBSTRUCTION OF CRIMINAL INVESTIGATIONS OF HEALTH CARE OFFENSES: (a) Whoever willfully prevents, obstructs, misleads, delays or attempts to prevent, obstruct mislead, or delay thecommunications of information or records relating to violation of a Federal health care offense to a criminalinvestigator shall be find under this title or imprisoned no more than 5 years or both.(b) As used in this section the term Acriminal investigation@ means any individual duly authorized by adepartment, agency, or armed force of the United States to conduct or engage in investigation for prosecutionsfor violations of health care offenses.@
The expansion of the breadth of the new obstruction of investigation@ offense thus enacted is apparent whencompared to sections 1503 and 1505 which are virtually identical and apply to pending judicial proceedings andadministrative proceedings respectively. On its face the former applies to any matter under investigation whilethe latter sections prohibit behavior which would influence, intimidate, or impede a juror or court official; and,any conduct which would influence, obstruct or impede the due administration of justice. We do not yet havejudicial interpretation of Section 1518. In order to violate 1503 and 1505, the defendant must act with knowledgeof the pending proceeding and with a specific intent to impede the administration of justice. See generally UnitedStates v. Barfield, 999 F.2d 1520 (11th Cir. 1993); United States v. Vesich, 724 F.2d 451 (5th Cir. 1984); UnitedStates v. Hass, 583 F.2d 216 (5th Cir. 1978), cert. denied 440 U.S. 981 (1979); United States v. Aguilar, 994 F.2d609 (9th Cir. 1993).
Like 1518, Section 1512 is much broader than 1503 and 1505.. This section is known as the witness tamperingsection of the Victim and Witness Protection Act. While it prohibits threatening and intimidating behavior whichAinfluence[s], delay[s], or prevent[s] testimony or which causes a person to withhold testimony or destroyevidence@, it also prohibits the use of Amisleading conduct@ to achieve these same ends. This statute should bereviewed in detail to ensure that no misleading conduct is used while interviewing witnesses.
The general guides to avoiding obstruction of justice allegations are as follows:
1. Never tell a witness not to talk to a government agent or tell anyone else to give those instructions.
2. Never destroy or hide a document or tell anyone else to do so.
3. Never alter a document or tell anyone else to do so.
4. Never (of course) tell a witness to lie.
5. Protect yourself against obstruction allegations by having a witness present when you do interviews.
C. Obtaining Counsel for EmployeesThe issue of counsel for employees will arise early on in the investigation – as soon as a government agent wantsto interview the employee. Accordingly, counsel must be prepared early to make a recommendation on whetherthe corporation should retain counsel for the employees.
Retaining counsel for all the individual employees who are involved in the investigation will have the advantageof helping the employees to feel more at ease and protected.
In addition, it will avoided conflict of interest problems between the corporation and the employees, as welllessen the risk that obstruction of justice allegations will be made against the corporation’s dealings with theemployees. Finally it will provide additional protection against the government’s covert attempts to contact theemployees.
D. Coordinating a Defense Once the employees have independent counsel, the corporation’s counsel should work with employee’s attorneysto coordinate an effective defense. Such an arrangement will allow the pooling of money, time, and information.
For added benefit, the various defendants may wish to enter into a formal Joint Defense Agreement. Thisagreement will allow the attorney-client privilege to be extended to all information shared among the variousparties. This privilege will remain intact even in the event that a defendant withdraws from the Joint DefenseAgreement.
In order to qualify for such an agreement, the defendants must share a common interest. Further the information must be necessary to facilitate the representation and the materials exchanged must be confidential. See Hunydee v. United States, 355 F.2d 183 (9th Cir. 1965). While the agreement does not have to be written tobe valid, a written agreement has the advantage of clarifying the objectives and reducing the chance of conflict ofinterest.
When considering whether to enter into a Joint Defense Agreement, counsel should fully advise the client of allthe potential consequences of entering into a joint defense agreement.
E. Discussions with the Prosecution – Disclosure of the Internal Investigation
While it is likely that at some point during the investigation counsel will want to discuss matters with theprosecution, counsel must be very cautious and sensitive to unintentional waiver of attorney-client privilege.Disclosure of the internal investigation may constitute a waiver of all related matters. See In re Martin Marietta,856 F.2d 619 (4th Cir. 1989); Westinghouse v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991).
In order to insure that the privilege is not waived, counsel should first attempt to strike a deal with the prosecutorthat any discussions will be off the record. Such a deal should be reduced to writing if possible. If that does notwork, counsel can speak in hypothetical, although this approach is strained. As another alternative, counselshould seek an agreement that the discussions are protected under Federal Rule of Criminal Procedure 11(e)(6)(D) prohibiting use of statements relating to plea negotiations.
Conclusion
The keys to an effective response to a criminal health care investigation are planning ahead and quick actiononce the investigation is underway. This combination will enable counsel and the client to get on top of theinvestigation quickly, keep pace with the government, and be able to articulate reasons why the case should notproceed to indictment.Not only weathering, but effectively responding to, a health care criminal investigation is absolutely essential.Oftentimes, the very continued existence of the provider as an entity is at stake. It is thus critically important forthe provider and the counsel who advise it to be well prepared to address this ever present risk of providinghealth care in this increasingly regulated area.