In times past, prosecutors were only—or at least primarily—interested in putting your clients in jail and fining them. And regulators were only trying to sue your clients for money, or to regulate them by lawsuits that sought to put your clients out of business or impose significant limitations on how they could do business going forward.

Not so true anymore. More often than one might think, you show up at a prosecutor’s office after a grand jury subpoena duces tecum is served by the FBI to discuss the investigation. When there, you encounter, along with the FBI agent, a representative of, say, the SEC, CFTC or HHS—thus communicating to you that your client is in for a multi-pronged battle. Meaning, you affirmatively know right then that communications with or proffers to the prosecutor on your client’s behalf may be considered, not only by the prosecutor’s office, but also by the regulatory agency. Well, at least you know! And you might decide, right then and there, that you will not be forthcoming, or as forthcoming as you might otherwise be if you were just dealing with criminal investigation personnel.

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