Make no mistake: the prosecutor wants the factual accounts of corporate employees, no matter how high or low level, before counsel for a corporation under investigation “lawyers up” the employees by stating to her that he represents the Corporation and the employees, or discourages interviews without him present. Worse, the prosecutor fears that the Corporation’s attorney will encourage the employees to “take five” – this, possibly, an obstruction of justice.[1]�
Or, she wants interviews before the Corporation’s criminal attorney hands employee(s) to a “friendly” lawyer(s). His fees will be paid by the Corporation, and the prosecutor worries that such “independent” attorney will encourage his client(s) to “cooperate” with corporate counsel through a joint defense agreement.[2]� The prosecutor may question, even aloud, whether the “independent” attorney’s advice that his clients cooperate with the Corporation would comply with his obligations to individuals themselves under investigation, and may also later impair the prosecutor’s ability to unbundle a joint-defense agreement without violating the attorney-client privileges of those who go to trial.[3]�
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