Attorneys around the country—even those without a white-collar or criminal practice—are facing a new ethical issue relating to law enforcement. An agent of the FBI or another governmental agency comes to the attorney’s office, either by appointment or unannounced, and begins asking questions about a client who is not otherwise subject to a formal governmental investigation. The agent may ask about the client’s business or relationships or may even ask to see the client’s financial documents or files in possession of the attorney.
For those attorneys who do not routinely engage with federal authorities, they may feel the tension of dueling interests. 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.
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