Guide to White-Collar Criminal Defense: Responding to a Government Subpoena

Responding to a Government Subpoena

What You Need to Know

If you or your business has received a subpoena from the government, the stakes can feel overwhelming. Whether it’s part of a civil investigation, regulatory inquiry, or criminal proceeding, responding appropriately is critical. Mishandling the process can lead to unintended legal consequences, even if you’ve done nothing wrong. This guide will help you understand the basics of government subpoenas and how to respond effectively.

What is a Government Subpoena?

A subpoena is a legal document issued by a government agency or court that compels an individual or organization to produce documents, provide testimony, or both. Government subpoenas typically fall into two categories:

  1. Subpoena Duces Tecum: Requires the recipient to produce specific documents, records, or other evidence.

  2. Subpoena Ad Testificandum: Requires the recipient to appear and provide testimony under oath, either at a deposition, hearing, or trial.

Government agencies such as the Department of Justice (DOJ), the Securities and Exchange Commission (SEC), and the Department of Health and Human Services (HHS) frequently issue subpoenas as part of their investigations.

Why Did You Receive a Subpoena?

Receiving a subpoena does not necessarily mean you are the target of an investigation. You may be considered:

  • A Witness: Someone who has relevant information about the matter under investigation.

  • A Subject: Someone whose conduct is being reviewed but who is not yet formally accused of wrongdoing.

  • A Target: Someone the government believes has engaged in illegal activity.

Understanding your role in the investigation is crucial to formulating an appropriate response.

Key Steps to Take When You Receive a Subpoena

1. Do Not Ignore It

Subpoenas are legally binding, and failing to comply can result in penalties, including fines and even jail time. Respond promptly to avoid unnecessary complications.

2. Consult an Experienced Attorney

Immediately seek advice from a white-collar criminal defense attorney with experience handling government investigations. An attorney can help you:

  • Assess the scope and validity of the subpoena.

  • Protect your rights and privileges, such as attorney-client privilege and Fifth Amendment protections.

  • Negotiate with the issuing agency, if necessary.

3. Preserve Relevant Evidence

Once you’ve received a subpoena, you have a legal obligation to preserve all potentially relevant documents and information. Destroying or altering evidence can lead to allegations of obstruction of justice.

4. Understand the Scope of the Subpoena

Subpoenas often request a broad range of information, which can be time-consuming and costly to compile. Your attorney can help narrow the scope by negotiating with the government to ensure the requests are reasonable and relevant to the investigation.

5. Conduct an Internal Review

Before producing any documents or providing testimony, conduct an internal review to understand what information is being requested. This allows your attorney to identify potential risks, including any information that could raise red flags.

6. Meet Deadlines or Request Extensions

Subpoenas typically include a deadline for compliance. If the timeline is unrealistic, your attorney can request an extension. However, this must be done in good faith and with adequate justification.

Protecting Your Rights

Responding to a government subpoena involves balancing cooperation with protecting your legal rights. Key considerations include:

  • Privilege Protections: Certain documents may be shielded from disclosure under attorney-client privilege, work-product doctrine, or other legal protections.

  • Fifth Amendment Rights: If complying with the subpoena could incriminate you, your attorney can advise on asserting your Fifth Amendment rights.

  • Confidentiality: If the subpoena requests sensitive business or personal information, your attorney may be able to negotiate confidentiality agreements or seek protective orders to limit disclosure.

Potential Risks of Non-Compliance

Failing to respond appropriately to a subpoena can result in:

  • Contempt of Court: Courts can impose fines or jail time for non-compliance (18 U.S.C. §401).

  • Obstruction Charges: Destroying, altering, or hiding evidence can lead to criminal charges (18 U.S.C. §1512).

  • Damage to Your Reputation: Mishandling a subpoena can raise suspicion and harm your standing in the eyes of investigators, clients, and business partners.

Why You Need an Experienced Attorney

Navigating a government subpoena without legal guidance can be risky. An experienced white-collar criminal defense attorney can:

  • Provide strategic advice tailored to your situation.

  • Manage communications with the government to minimize exposure.

  • Protect your interests while ensuring compliance with legal obligations.

Conclusion

Receiving a government subpoena is a serious matter, but it doesn’t have to be overwhelming. By acting promptly, seeking legal counsel, and following a strategic approach, you can navigate the process with confidence and minimize potential risks.

If you or your business has received a subpoena, contact attorneys at Dynamis LLP or email whitecollar@dynamisllp.com, today. Our experienced attorneys are here to guide you through every step of the process and protect your rights.

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