There are similarities and differences between the two.  While the same standard of proof for a conviction applies, how a case is handled between State and Federal Courts differs drastically.  In resolving a case in State Court, your white collar criminal defense lawyer can negotiate the exact outcome with the Prosecutor or District Attorney, conference the case with a judge, and tell you  prior to sentencing whether there will be incarceration, a term of probation, or what the restitution amount will be.  On the other hand, in Federal Court, when a case is resolved the ultimate outcome is decided by the Judge at the date of the sentence. While certain factual matters and dollar figure amounts can be agreed to with the Government or U.S. Attorney’s Office, these stipulations are ultimately not binding on the Court.   Prior to the sentencing in Federal Court, you will only know if there is maximum penalty and/or a mandatory minimum sentence, and the federal sentencing guideline offense level recommendation, but you will not know the exact penalty until the date of sentencing.

In Federal Court, all crimes are provided a base offense level.  Your base offense level is then adjusted upward or downward depending on your involvement in the case, and the offense characteristics and circumstances.  Your criminal history category is also calculated based upon your prior conviction history.  Based on your offense level and criminal history category, you can find the recommended sentencing guideline range for your crime.  The guideline range is a suggested number of months of incarceration. While the guideline range is not a mandatory sentencing range, and only serves as a guide for a Federal Judge to consider when imposing a sentence, many judges place great weight on the Federal Sentencing Guideline Range.

No. The Federal Sentencing Guidelines are no longer mandatory by decision of the Supreme Court.  They provide a set of factors that a Judge must account for when issuing an appropriate sentence.  Other sentencing considerations not included in the sentencing guideline calculation include how a defendant behaves after his arrest ,if there is mental health or substance abuse issues and whether the defendant commits to treatment and counseling; whether restitution can be paid; what amount of harm was caused to the victim;  whether the defendant suffers from any medical conditions; whether the defendant has family support; whether the defendant is employed ; and whether the defendant has the support of family and friends in the community.

It is critical to work with your attorney so that a judge will be able to see you as the person you are, and not just the offense you committed.

Criminal cases involve allegations that a crime was committed.  In criminal cases the government is seeking a conviction.  Charges are prosecuted by local District Attorney’s Offices, the New York State Attorney General, or Federal United States Attorney’s Office. If convicted, you could face potential incarceration, fines, surcharges, and restitution.

Civil cases are brought to seek money damages or to attempt to stop certain behavior or actions, legally known as injunctions.  Civil cases can be filed by individuals, corporations, or the government.

This is a very difficult question to answer, but it could be both.  Many investigations start as civil inquiries and end up identifying criminal actions.  The same is also true for criminal investigations.  Many criminal investigations end up resolving with civil resolutions.

Ultimately what distinguishes a civil action versus a criminal problem are intent and actions.  In other words, did the problem occur because of an underlying criminal act. Many factors go into determining how a case is investigated.  Certainly, it is always better to be working in the civil realm versus the criminal arena based on the potential punishment.  In the civil context, you can be required to stop performing a certain action or pay penalties, interests and other monetary damages.  In the criminal context, you can face civil penalties in addition to incarceration and a criminal record.

Yes.  Although it is rare, you can be charged with the same offense or fact scenario in both State and Federal Courts. State and Federal Prosecutors will usually get together and decide whether the case should be handled on the State or Federal level. Many considerations go into this choice including the nature of the crime, the potential punishment, the workload of a prosecutor or agency, and who discovered or investigated the crime.  For example, when cases are prosecuted in both State and Federal Courts for the same conduct, the State would prosecute a larceny and the Federal side would prosecute a tax evasion charge.

Ask your attorney about the Petite Policy, which is an internal Justice Department guide which states that absent compelling federal interests, the Federal Government should not prosecute whenever a State has done so. This is merely a guide; however, it is worth examining if you find yourself in this situation.

An internal investigation is when a company has some indication or allegation of wrongdoing or improper actions by its employees or corporate officers and the company wants to determine, what, if any, validity there are to these claims.  These allegations can come from an internal company source or from a governmental investigation. Ultimately, the investigation is used to determine if there was any wrongdoing, and, if so, to correct the problem.  At the end of the investigation it may be helpful for a formal report to be generated that identifies the allegation, the nature of the investigation, the findings, whether disciplinary action was taken, and the recommendations for corrective action.

Internal Investigations can be as minor or as complicated as the needs present. They may include interviews, forensic financial audits, document review, and legal analysis / memorandums.

There is no definite answer to this question, however the sooner the better after potential misconduct is discovered.  When a company has knowledge of alleged impropriety, it is best for the company to get out in front of the investigation and to conduct its own complete and thorough investigation.  In many cases, if a corporate investigation is conducted properly, a governmental agency will rely on the findings of the internal corporate investigation.  When conducting an internal corporate investigation, it is always best to develop a plan that protects the attorney client privilege of the company. Based on the results of the internal investigation, the company will be in a better place to determine its next course of action, including the possibility of self-disclosure, settlement, or taking the position that the company did not do anything wrong.

Failing to act could turn an otherwise isolated incident into civil or criminal consequences for those who learned of what was occurring and did nothing.

There is no exact formula or way to conduct an internal investigation.  The allegation of wrongdoing or impropriety depends on the scope of the investigation.  Most internal investigations include reviewing materials such as emails/text messages, interviewing employees, reviewing office policy and procedures, personnel files/employee reviews, board minutes, billing records, bank transactions, tax returns and other relevant documents.

This again depends on the nature and scope of the allegation and wrongdoing.  Depending on the investigation, it will be important to determine whether the investigation should be conducted by outside counsel, in-house counsel, a company’s HR department or compliance officer.  Depending on the allegations, auditors, accountants, and/or forensic consultants may be necessary to assist in the investigation.  It is recommended that attorneys be responsible for the investigation as the attorney client privilege or attorney work product privilege can be asserted.  Hiring outside counsel may provide a greater level of security and protection, as well as the availability to provide a complete and unbiased opinion.

Attorney review may also aid in deciding if additional/individual counsel may be necessary for one or more individuals. Even in those cases, there is a potential for joint-defense agreements that may be in the best interests of everyone involved as well as the company.

Not usually. Statements made during an internal investigation by an employee are not privileged or confidential unless there is a joint defense agreement in place for the employee.  However, as part of the internal investigation, the statements of the employee are protected and privileged as it pertains to the corporation.  The corporation has the ultimate choice as to whether to keep the statement confidential or disclose the contents as the company deems appropriate.

An Upjohn Warning refers to language contained in Upjohn Co. v. United States, 449 US 383 (1981), which provided greater protections to corporations with respect to attorney client privilege in conducting internal interviews.  Essentially, the Upjohn Warnings tell the employee that the attorney that is conducting the interview represents the employer and not the employee; that there is no attorney client privilege between the attorney and the employee; and that the company has the right to either disclose the contents of the communication or assert the attorney client privilege with respect to the communication between the attorney and the employee.  The Upjohn Warning acts as a corporate Miranda Warning.

Yes.  Employees are required to participate in internal investigations, or they may be subject to employee discipline.  In an internal interview, the employee must answer questions or participate in the investigation.

Yes, or you will be subject to employee discipline.  An employee must participate in an investigation.

Failure to participate can result in discipline including termination. An employee who does not want to answer questions may request their own lawyer.  However, an employer does not have to allow the attorney to participate in the investigation.

You may request your own attorney during a corporate investigation. Your company does not have to allow for one.  A lawyer is not required, and a company has a right to deny the access of an attorney during an internal investigation.  Contacting a lawyer is always a good idea in these situations to receive advice about whether to participate in the internal investigation.  For example, if you are accused of committing a crime, it may be better to lose your job than to make statements that could be used against you in a criminal case.

Also, even if the corporation ultimately denies full access to the attorney, they may be more willing to engage in negotiations with them on your behalf.

An employee who lies or does not tell the truth during an internal investigation is subject to discipline including termination.

Yes. Your company may pay for you have your own counsel.  If you are requested to give a statement or meet with law enforcement personnel, you have the right to be represented by a lawyer.  You should ask your company if they are willing to pay for your legal fees.  You can hire a lawyer of your choice.  Your company may recommend a lawyer(s) for you to consider.  You have the right to utilize these suggestions or to hire someone on your own.

It is critical you understand the difference between speaking during an internal investigation and speaking to law enforcement. While you may request an attorney during an internal investigation, the corporation may reject that request. You face termination for failing to participate. If being questioned by law enforcement, you have the absolute right to an attorney during questioning and your request cannot be denied.

No.  Absent a contractual obligation, your company does not have to pay for or provide you with an attorney.  You are always allowed to contact and hire a lawyer of your choice.

When contacted by law enforcement, you have three options: (1) speak with law enforcement; (2) refuse to speak; or (3) ask for time to respond after you have had time to consult with an attorney.

It is always advisable to contact an attorney prior to speaking with law enforcement.  You do not have an obligation to speak with law enforcement.  If you would like to speak to an attorney, you should be polite and ask for contact information and advise the law enforcement agent that you will have your lawyer contact them.

A subpoena is a request for documents to be provided at a date and time in the future.  In other words, you do not have to immediately turn over the records requested in the subpoena.  If you or your company receive a subpoena, you should immediately contact a lawyer.  Your lawyer may be able to extend the time frame to respond, reduce the scope of the subpoena, or file a motion to quash the subpoena.

It is important to distinguish the difference between a warrant and a subpoena.  A warrant is executed by law enforcement in the context of a criminal case and states the time, location, and items that can be collected pursuant to the warrant.  Once a warrant is issued there is nothing that can be done to stop a search.  If law enforcement indicates they have a warrant, you should comply immediately and ask to contact an attorney. Law enforcement is not required to immediately show you the warrant, however they are not allowed to lie about having one. Legal challenges to the warrant and/or its execution can be brought later.

Yes.  If you are being investigated by the Federal Government and lie to a federal law enforcement agent or United States Attorney, you can be prosecuted and charged with a violation of 18 U.S.C. § 1001 for making a false statement.  While it is not a crime to lie to law enforcement conducting a state investigation nonetheless, you could be charged with obstruction, filing a false instrument or perjury if your false statement were written or otherwise provided during sworn testimony. It is recommended that you consult with and/or hire an attorney PRIOR to discussing anything with law enforcement.

Sometimes after an internal investigation is completed, a company may have to decide whether to provide information to the government or governmental agency of their internal wrongdoing.  Making this decision is very difficult and should be made with the advice of counsel.  The benefits of self-disclosure or self-reporting include showing the government that your own internal compliance and controls have found a problem and that the problem has now been fixed.  The government or governmental agency may accept your report and not initiate a full-blown investigation.  The downside of self-reporting is that there is no way to prevent the government from conducting their own criminal or civil investigation.  In these cases, if the government believes the self-report was not enough, the potential consequences could be worse.  Self-disclosing or reporting may also provide waivers of the attorney client privilege.  The decision to self-disclose often comes down to the nature of the allegation, whether there is a pending investigation, and whether the problem can readily be fixed or remedied.

In many circumstances, the government or governmental agency expects and requires self-disclosure of a problem or issue.  Self-disclosure can eliminate or lesson potential civil or criminal penalties or charges.  Self-disclosing or reporting can be beneficial, but there is no guarantee.

Remediating a problem is always helpful.  However, fixing a problem may not eliminate or lessen the consequences.  Whether it is an investigation, a civil lawsuit or a criminal matter, it is always better to say that a problem was identified and is now corrected.  In civil cases, remediating a problem cannot be used against you.

In the criminal context, it is always beneficial to state that as soon as a problem was identified that it was addressed and fixed.  In addition, it is important to put in place policies, procedures and mechanisms so the conduct does not occur again in the future. Also, doing so may trigger the end of the problematic action and therefore begin the statute of limitations of any potential liability.

A joint defense agreement allows communications, work product and documents to be shared confidentially between multiple parties and their attorneys in an investigation, or an initiated civil lawsuit or pending criminal charge.  Joint defense agreements can be either written or oral.  However, it always preferred as soon as practicable to formalize an oral joint defense agreement in writing so there is no confusion as to the parameters of the agreement.  The joint defense agreement should be signed by all parties and their respective attorneys.  The downside of a signed joint defense agreement is that the document, in whole or in part, may be subject to disclosure during a litigation.

The common interest privilege provides protection for information or communication between parties in a litigation or investigation that share a common legal interest.  The common interest privilege is also known as the joint defense privilege.  This allows for meetings and communications to occur with multiple parties and their lawyers while maintaining attorney client confidentiality.