Nearly every day in nearly every city in the United States, businesses and individual citizens are unexpectedly visited by some government agent, and we don’t mean mail carriers. These are local, state or federal agents, inspectors or investigators. They may be special agents for state and federal agencies such as Departments of Revenue, Environmental Protection Agencies or even law enforcement, like the FBI. They may be from agencies like OSHA, the SEC, or the Department of Labor. They may even be from one of the multitude of local, state or federal inspectors general offices, many of which have broad investigatory authority. Whatever their particular title or agency, they are all government agents, and most, if not all, have agreements, formal and informal, to share information and cooperate with each other’s investigations. So what you might say to one agency may as well be said to all of them.
The crucial question is: What do you or your employees do when these government agents appear? How you respond to the visit may have profound consequences, good or bad, for you or your business.
When special agents, inspectors or investigators knock on your door, they will likely be dressed nicely. They often begin by identifying themselves, followed by flashing a badge or other official credential. They appear friendly, and most are. They smile and may ask to come in to speak with you about “a few things.” Appearances aside, when government agents come knocking, you can be pretty sure they are not there to drink coffee, tea or water with you. They are there on business.
Put plainly, your government visitors are almost certainly conducting some sort of official investigation. As part of that investigation, they want information from you, which they may prefer to obtain in person. And whatever you tell or show them, they intend to use it. You’ll notice, for instance, they nearly always appear in pairs so there are two witnesses to whatever you or your employees say or do.
Perhaps they are interested in information about someone you know. Perhaps they are interested in obtaining copies of your business records. Perhaps they wish to speak with you about what one of your employees, co-workers or partners in your business has been doing. Perhaps, worse case, you are the subject of their investigation and they are interested in getting you to say something they can use against you. They are not required by law to tell you what their true purpose is, and the law generally allows them to intentionally deceive you as to their real interests.
Whatever the reason for the visit, and whatever their questions, saying anything to the government agents before you have a chance to consult with a lawyer is an enormous risk and a potentially damaging mistake.
As a citizen or as a business owner, you should be aware that you do have rights. You have the absolute right to not answer questions put to you by the government’s agents, even when politely asked. You also have the absolute right to speak with a lawyer before you respond to any questions from government agents. And, unless they have a search warrant from a court saying otherwise, you have an absolute right to ask the government agents to leave. (Search warrants and subpoenas for records, which government agents sometimes possess when they visit you or your business, are important and complex topics in their own right, which we will address in a forthcoming Insight on Business Rights post.)
As important, you should be aware that anything you say to a state or federal special agent, inspector or investigator may be used against you in a subsequent legal matter, whether civil or criminal. You also need to know that should you decide to answer their questions during their visit, any statements you make that are later deemed to have been knowingly false could subject you to significant penalties and severely compromise your legal position.
But wait, you might ask, what about my Miranda warnings? If they question me without giving those first, aren’t they prohibited from using anything I say against me? In a word: No. To be clear, the triggering event that requires law enforcement to provide you with your Miranda rights is your arrest and placement in custody, meaning you are not free to go. In other words, unless you are actually arrested or placed into police custody and not free to leave, you are not entitled to Miranda warnings. Therefore, any statement you make to government agents at your door or front desk do not have to be preceded by any Miranda rights. These statements, if made, will be treated as “voluntary” statements and can, if the government wishes, be used against you in a subsequent legal matter.
When government agents appear at your reception desk, front gate or front door, you or your employees will inevitably have a number of urgent questions: Am I required to do what the government agents say? What do I say? Should I invite them in? Who should I call? Am I in trouble? Is one of my employees in trouble? If I don’t cooperate, won’t they perceive that to mean that I have something to hide? These are all very good questions.
Perhaps most common, and the cause of more people making a mistake than any other concern, is the notion that if you fail to answer the government agents’ questions and do what they say you will “look guilty.” This is a common belief, but it is, to be blunt, plain wrong. When citizens tell a government agent that they want to speak with their own attorney to get objective legal advice before responding to the government’s question, they look smart, not guilty. We have represented professionals including lawyers, police officers, federal agents and even a few judges over the years, and every one of them, being familiar with the law and how government investigations work, inevitably choose to not answer questions from government agents before speaking with their attorneys. Of course, government agents would like you to answer their questions without taking the time to determine if it is in your interests to do so, but that may not be in your best interest. It is not their job to worry about what is in your best interest; that is you and your lawyer’s job, and that is why it is smart to discuss the matter with your lawyer first.
We are not suggesting it is never in a client’s interest to cooperate with government agents carrying out an investigation. Indeed, we often, after consulting with our client and the government and learning the relevant facts, advise clients to provide known information to the government. The crucial difference is that we only do so after making sure it is in the best interest of the client.
So what should you do when those government agents appear? Our general suggestions and recommendations can be simply summarized:
- Obtain the name and contact information of the government agents, ask them what they want, and obtain as much detail as they are willing to share;
- Inform them that you will have your lawyer contact them to discuss how to respond and that, until then, you cannot provide any information or answer any questions; and
- Contact your attorney as soon as possible. (Indeed, if you can contact your attorney when the government agents first appear, that is preferable because your attorney may be able to handle the interaction with the government for you, though this may not always be possible.)
The above steps will most likely not end the entire matter. As much as you may want it all to end with the closing of the door behind the government agents, that outcome is unlikely absent some sort of follow-up between your counsel and the government. As noted above, it is quite possible that once your attorney does follow-up, you may together agree that there is no risk to you in providing certain information to the government agents. On the other hand, you and your attorney may agree that it is in your interest to not provide the information. But whatever you agree to after consultation, you will have protected yourself or your business from the potentially devastating mistake of just “winging it” with trained investigators.
As set forth above, the answer to the question, “What to do when government agents arrive at your door?” is actually quite simple: Use your legal right to consult with a qualified attorney before deciding how and whether to answer government agent questions. Better yet, consider consulting with your attorney about this issue before government agents ever arrive and work out a simple but clear plan. To be safe and to protect your legal rights, every person and every business should know in advance the answer to the question: “What to do when the government agents arrive at your door?”
Note: This is the first in a series of blog posts from Greensfelder’s Governmental Interactions Group focusing on business rights. Please feel free to contact Patrick Cotter, Ricardo Meza, Richard Greenberg, or David Niemeier with questions or suggestions on future topics.