Corporate outside counsel are often called upon to handle a variety of tasks for their clients, from representing them at trial to conducting internal investigations or review of procedures. Outside counsel may also be the representative of the client for purposes of receiving and responding to inquiries, including from the government. If a client is subject to a formal governmental investigation, that client will often retain counsel who specializes in that sort of defense. However, there can be additional risks for a client and outside counsel when the FBI or another governmental agency with enforcement power makes an inquiry regarding a client who is not subject to a formal investigation. An agent could come to outside counsel—announced or unannounced—to ask questions about the client's business, relationships or financials. The government may contact corporate attorneys on an “informal” basis, such that white collar or criminal attorneys may not yet be involved. This can create a tension for outside counsel. On one hand, the attorney may wish to be candid or even helpful to the agent, particularly if the attorney believes that consultation may help the client by clearing up misunderstandings. On the other hand, the attorney generally has a duty to guard the confidences and secrets of a client, particularly where revealing that information would cause the client to face criminal liability or a government investigation. In addition to the risks to the client by an attorney's participation in government inquiries, there are also risks to the attorney. That is because, in recent years, investigations of corporate misconduct have increasingly sought to hold that corporation's attorneys accountable as well. Because corporate or other attorneys may lack experience in navigating these issues, here are some tips to consider when the government comes calling. Obligations of Confidentiality Many attorneys facing this issue will first consider whether they are even permitted to respond to inquiries regarding a client's business or finances, no matter how informal. Pursuant to Rule 1.6(a) of the Georgia Rules of Professional Conduct, “[a] lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client,” unless the client gives informed consent for the attorney to provide information or the attorney is forced to disclose by court order or process. Thus, when an attorney is asked questions about client activities, there could be a risk that responding to those questions could implicate confidential information or be detrimental to the client. There are limited exceptions to the requirement of confidentiality that sometimes apply in a criminal investigation, particularly if there is a risk of harm to another party. Under Rule 1.6(b)(1)(i) of the Georgia Rules of Professional Conduct, a lawyer may choose to reveal information “to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law.” Notably, this provision is not mandatory. Further, this exception only applies “if the harm or loss [resulting from the criminal conduct] has not yet occurred.” This likely arises from the notion that an attorney is not supposed to act as a witness against a client. Thus, there are limited circumstances in which an attorney may act to prevent harm to others, but if that harm has already occurred, disclosure against the client is not permitted. Obviously, it is unethical for an attorney to assist a client in fraudulent or illegal conduct. However, it is not a violation for attorneys to decide not to take preventive action. Cmt. [12]. The maximum penalty for violating the tenets of Rule 1.6 is disbarment, a serious risk. Risks to Counsel Even if clients expressly authorize their attorney's participation or cooperation in questions from a government agent, there still may be some risk to the attorney. Indeed, when an attorney answers questions about possible corporate misconduct by a client, the government may focus on whether the attorney has culpability for the client's actions. An attorney who suggests to the government that the attorney had knowledge or awareness of the client's conduct could then face indictment or become a material witness. Further, if the client's conduct is under the government's microscope, any advice provided by the attorney to the client in furtherance of that conduct could face similar scrutiny. In addition, even if the attorney is not specifically targeted, the unauthorized disclosure of confidential information could lead to a bar complaint or even a malpractice claim. Don't Go It Alone When first contact is made by the government—even if the attorney is told the agent just has some “informal” questions about a client—most attorneys will immediately notify their law firm's counsel as well as the client's in-house counsel. Because responding to questions about a client from a government agent exposes the client, the attorney, and even the attorney's firm to potential risk, there is no need for the attorney to go it alone. By involving the firm's in-house or outside counsel, the attorney can benefit from additional advice on how to proceed. In addition, the attorney can help ensure that her or his evaluation of what to do next is protected under the privilege shared by the attorney and the firm's counsel. In-house counsel can also involve outside counsel, if necessary, to assist the firm and the attorney. Shari L. Klevens is a partner at Dentons US in Atlanta and Washington and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team. Alanna Clair is a partner at Dentons US in Washington and focuses on professional liability and insurance defense. Shari and Alanna are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2019 edition of “Georgia Legal Malpractice Law.”