How to instruct staff without obstructing justice
How to instruct staff without obstructing justice
The worst has happened. Federal agents pursuing a health care fraud investigation are at your door with a search warrant or request for records, and your office is thrown into disarray.
How well you’ve prepared your staff to handle the shock and confusion of the investigators’ initial assault could make all the difference for your practice, experts say.
Your first move is to ask the agent in charge to instruct his or her people not to talk to your employees, says Philip L. Pomerance, a health care lawyer with the Chicago firm of Hinshaw & Culbertson. If the agents continue in their attempts to interrogate the staff, continue to state your objection.
Next, advise your employees that they have the right not to answer the questions directed to them. However, you must not tell them outright not answer questions; the investigators may construe that as obstructing justice or even witness tampering. Object strenuously if you believe an agent is intimidating anyone. If employees agree to be interviewed, insist that your lawyer be present during the interview. Record the interview, if possible.
Quietly — and as quickly as possible — send all nonessential employees home. Advise the agent in charge that you are sending the employees home for the day.
"In rare instances, you may want to stay open the rest of the day, but it is generally better to close during a search," says Pomerance.
It might be worthwhile to keep some employees on site to help the agents call up computer information and other documents subject to search, if only to reduce the risk of damage to your property, Pomerance says. "Make it clear to the agent in charge that you are not consenting to the search, but that the employees are here to ease the disruption and damage to your business caused by the search," says Pomerance. "Then send all remaining employees home."
The agent in charge has no authority to detain the employees. He or she may ask for a list of the employees’ names, addresses, and phone numbers. You aren’t required to produce this information, but you might as well; the investigators will discover it anyway during the search, and providing it up front may reduce employee contact with the agents, Pomerance says.
Remember that because most employees will be confused or even afraid, you should reassure them that business will continue as usual. Also, talk with your lawyer about how to best educate employees about the allegations being brought.
"Clients often are very resistant to educating their staff about the nature of the investigation. However, I believe that it is far better for an employee to learn about the search from a supervisor or co-worker than to receive information by watching the 10 p.m. news," says Pomerance.
You may also get questions from employees about their need to hire a lawyer. "You must talk with your attorney about the right of employees to individual counsel — and whether the practice should pay for it — as soon as is practical," says Pomerance.
"Remember that the investigators may contact key employees right after the search while the shock is still fresh," he says. "You may want to advise employees of their ability to retain counsel before an agent knocks on their door. Finally, make certain that no employee attempts to remove company property from the search scene, or to destroy or hide any property or materials."
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