Beware of What Prosecutors Aren’t Telling You

By Pamela J. Bethel

Last week, we wrote about a cautionary lesson from some pending white-collar criminal cases: Watch what you put into an email. Whether you are guilty or innocent, your words may come back to bite you.

Here is another lesson from one of those cases, the New York state prosecution of former leaders and employees of the defunct Dewey LeBoeuf law firm.  Don’t ever become complacent about what prosecutors may be doing.  If you are in the prosecutors’ sights, you may find too late that you are a target of an investigation even if they don’t give you what you think is adequate warning.

In an eye-opening article on March 14, 2014, the New York Times examined the case of Zachary Warren, a low-level Dewey LeBoeuf employee who was recently indicted, along with three of the firm’s higher-ups, for accounting fraud. Although Warren, who had been a client relations manager at the firm before he went to law school, flew voluntarily last fall from his job as a federal appeals court clerk in Memphis to Washington, D.C., to speak with SEC investigators, he claimed he had no idea he was a criminal target until he received a call saying he had been indicted.

The government had told Warren that representatives of the D.A.’s office as well as FBI agents would be present or listening in at his interview, but he didn’t put two and two together and he didn’t even hire an attorney. He ended up not facing any SEC charges but being indicted for his alleged role in the accounting fraud at Dewey LeBoeuf. Warren was charged, in two separate indictments, with creating knowingly false business records. He faces up to four years in prison if convicted.

What the government did was apparently not illegal or unethical. A spokeswoman for the D.A.’s office told the Times that “the claim that an attorney with a federal clerkship could have any misunderstanding of what it means to speak with and agree to meet with the D.A.’s office is preposterous.”

To us, this is not a story of prosecutorial misconduct but a cautionary tale. If you are in any way asked to give information, even voluntarily, in a criminal matter, beware.  Consult an attorney immediately. Figure out your options and try to think the way a prosecutor might. Don’t ever be forced to make the claim that you were blindsided.

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