This article offers practical advice for professional people (lawyers included) and business executives who are served with a federal grand jury subpoena.
There are two types of grand jury subpoenas, ad testificandum, for an appearance to testify, and duces tecum, to produce documents or other physical items. There are three precautions that I offer to all people who are served with a grand jury subpoena. One, refrain from answering any questions asked by the agent who serves the subpoena, except acknowledging your name. You will gain nothing by answering the agent’s questions.
Two, seek the advice of a lawyer who is experienced in grand jury matters. The third precaution is to avoid speaking with people who are involved with you in the transaction that may be the subject of the subpoena. The first inclination may be to call those people and attempt to get the facts correct. Prosecutors would regard this as “getting your story straight.” This can easily be regarded as an attempt to obstruct justice, which is a federal felony. Many white-collar criminal cases are brought on this charge alone. The other people involved with you may have already been contacted by the prosecutor and may be cooperating. Your intended innocent meeting may be recorded, and your former associate may elicit damaging historical information.
Do not think this is a warning that applies only to bank robbers or hijackers of armored trucks. Many activities regarded by the business community as merely sophisticated practices may be regarded by federal prosecutors as federal crimes. Under certain circumstances, federal statutes may turn many seemingly sophisticated financial transactions into federal offenses.
I cannot over-emphasize engaging an attorney who deals regularly with these matters. I have seen many situations where a general practice or civil practice attorney has given improper advice that has resulted in a person being indicted when it could have been avoided.
There are a number of steps that must be taken by an attorney who represents a person who has received a grand jury subpoena ad testificandum. The first is to determine if the witness has any possible exposure and if there are others who may have already implicated the individual. The attorney representing the witness may be required to do a thorough investigation to determine how to advise the client. The attorney will not accept the client’s version of events at face value. The tactics for such representation are beyond the scope of this article, but suffice it to say that asserting the Fifth Amendment privilege against self-incrimination is always a possibility. Many experienced white-collar criminal defense attorneys start with the proposition that their client will assert the Fifth Amendment rather than testify. They feel that there may be many people who have given the prosecutor their versions of events that do not fit with their client’s version, and, if the client testifies, the prosecutor may choose to believe them and indict the client for perjury. It should be noted that the prosecutor will make the initial determination to pursue perjury violations, not the grand jury.
If you are an attorney and receive a personal grand jury subpoena ad testificandum or duces tecum for client files, major alarm bells should go off. The Department of Justice requires a prosecutor to get special permission from the assistant attorney general in charge of the Criminal Division in Washington, D.C., before issuing a grand jury subpoena to an attorney. The issuance of such a subpoena means the prosecutor has reason to believe the client has committed a federal crime and you, the attorney, assisted the client, knowingly, or unwittingly. These subpoenas are not confined to criminal lawyers but may well be served on an attorney advising clients on civil matters. Whatever the factual situation, do not attempt to handle this situation yourself. Engage a criminal lawyer to represent you personally, regardless of what your own client may think. The engaged attorney may advise that you and your client have conflicting interests and may advise you to cease your representation of the client.
If you are employed by a large corporation and receive a grand jury subpoena ad testificandum, you must immediately confer with in-house counsel or outside counsel for the corporation. That attorney will decide the strategy. Tactics for such a response are beyond the scope of this article — with this important caveat: Although communications between you and company counsel are covered by the attorney-client privilege, the privilege is the company’s and the company can waive it. There has been a disturbing practice regarding the waiver of corporate attorney-client privilege. In order to negotiate a settlement with the government, many law firms will advise the company to waive the privilege as part of the settlement. As part of the settlement agreement, the corporate lawyer’s notes regarding the interviews of the officers and employee are turned over to the government, with possible prosecutions of individual company officials and employees as a result. This is not always the case, but it has occurred enough times to be troublesome.
If you are a company employee who has received a grand jury subpoena ad testificandum, you should raise the issue of your personal privilege at the first meeting with the company counsel. If the company’s attorney’s response is not helpful, it is best to seek the advice of an outside attorney who is experienced in white-collar matters. That attorney will advise you how to proceed. These matters can become very complicated and you may need individual advice.
The subpoena duces tecum to obtain documents is mostly used for corporate or business documents but occasionally for personal documents. A subpoena for corporate documents of a large corporation is usually served on a responsible person in the corporation. The selection and production of these documents is a complicated process beyond the scope of this article. Suffice it to say, once a subpoena duces tecum is received, no documents should be destroyed, regardless of whether they are the subject of the subpoena, unless cleared with counsel.
A subpoena duces tecum directed to a small professional corporation or partnership is usually served on a major shareholder or officer. The same admonition applies: If you are that person, ensure that no documents are destroyed, regardless of the scope of the subpoena. Destroying documents that are the subject of a grand jury subpoena may amount to obstruction of justice. Indictments are often brought on this charge alone. Conviction could result in a jail sentence without the prosecutor proving an underlying crime.
If the documents exist, they must be produced, even if they contain evidence of your own wrongdoing. You may be permitted to produce the documents to the investigating agent or the prosecutor without appearing at the grand jury. If the prosecutor requires you to appear, you must answer whether the production contains all the documents requested. The production relates to the documents that existed at the time of the service of the subpoena, not which exist at the time of production. If there are documents missing, you may assert the Fifth Amendment as to what happened to those documents if such an answer will tend to incriminate you. There is a Fifth Amendment privilege regarding producing documents of a small corporation in which the act of production itself is incriminating. This is a narrowly construed privilege and can best be dealt with by an experienced attorney.
A grand jury subpoena to an individual for a purely personal item such as a personal diary or a personal recording is a gray area. A subpoena duces tecum for a personal non-business item may very well be beyond the protection of the Fifth Amendment. Based upon dicta in a Supreme Court case several courts have held that any item that was prepared voluntarily must be produced.
A grand jury is a secret proceeding; the grand jurors and the prosecutor are not permitted to disclose what occurs inside the grand jury nor to disclose the service of a grand jury subpoena. This secrecy requirement does not bind the witness who receives the subpoena or appears before the grand jury. The witness is free to disclose that he or she has received the subpoena and is free to disclose the questions asked of the witness in the grand jury.
There is one area involving grand jury secrecy that promises to produce litigation in public corruption cases. A public official, such as the clerk of court or an administrator of an office containing public records who receives a grand jury subpoena, may disclose the contents of that subpoena to third parties, including the media. Disclosure that the records pertaining to certain people or business entities have been subpoenaed might make salacious reading for the media but would be very damaging to those people or entities. I am aware that certain U.S. attorney’s offices have convinced federal judges to issue orders prohibiting the recipient of the subpoena from disclosing the existence or content of the subpoena to third parties. It is only a matter of time until the proper factual situation will provide the opportunity for the media to contest such an order.
In summary, receipt of a grand jury subpoena should be regarded as a serious matter with troublesome consequences. It is an area that requires expert advice. One should not proceed without the advice of experienced counsel.
To receive a copy of Peter Vaira’s previously published article “The Grand Jury, A Frank Appraisal,” e-mail Peter Vaira at firstname.lastname@example.org. •
Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of “Eastern District Federal Practice Rules, Annotated” (Gann Law Books). He may be contacted concerning issues of Eastern District practice at email@example.com.