This Day On The Street
Continue to site
This account is pending registration confirmation. Please click on the link within the confirmation email previously sent you to complete registration.
Need a new registration confirmation email? Click here

5 Rules for Protecting Yourself in a White-Collar Criminal Investigation

NEW YORK ( TheStreet) -- Don't be fooled by the Department of Justice's failure to prosecute financial fraud following the economic meltdown of 2008. White-collar prosecutions actually are on the rise. And now that the presidential election is over, expect even more.

As a result, executives must avoid behaviors that can, even inadvertently, draw them into a federal criminal investigation. While every white-collar case is different, each shares common origins and causes. In no particular order, here are five ways to protect yourself from being accused of a white-collar crime:

1. When you hear the corporate Miranda warning, it's time to get your own lawyer.

Most executives assume their communications with corporate counsel about a legal problem are privileged, and that they are free to talk about problems at the company. They would be only half right.

In the seminal Supreme Court case Upjohn Co. v. United States, the court held that communications between company counsel and executives of the company are privileged, but critically, the privilege is enjoyed by the company, not the employee.

What does that mean for you, the executive? If the government were to come knocking, the company alone would determine whether those conversations are treated as privileged. And while you may expect loyalty from your employer, know that corporations in that situation face tremendous pressure to waive attorney-client privilege, and for many, the decision is an easy one: Tell the government whatever it wants to know in the hopes the company will be spared.

As a result, there has been an increased focus on so-called Upjohn warnings (otherwise known as the "corporate Miranda"), which require company counsel to advise employees that he or she represents the company.

Most executives dismiss this admonition as boilerplate legalese and assume the company will treat their conversation as confidential. But the reality is that you likely need to obtain your own lawyer who will look out solely for your interests. Company counsel will never say upfront that you need your own lawyer because his or her goal is to elicit information

Bottom line: If you hear the corporate Miranda warning, you should consult with your own lawyer.

2. Everything you say over email can and will be used against you.

Another rule in day-to-day behavior that will help you steer clear of white-collar prosecutions is to be careful about what you say over email. Know this fact: Virtually every email you send is preserved somewhere and will remain available to the government for years to come.

Avoid aggressive or loose dialogue over email. Emails containing statements like "killing the competition," "checking with my inside sources," and, worse, "we shouldn't be talking about this in writing," can, years later, be made to look sinister and corrupt regardless of good-faith intent or meaning. In every white-collar case, the government zeros in on a handful of colorful emails that make the person look like they're deserving of punishment.

Bottom line: Delicate subjects should be handled face-to-face or via telephone; avoid locker room talk over email; and assume every email you send will be read later in the worst possible light.
1 of 2

Check Out Our Best Services for Investors

Action Alerts PLUS

Portfolio Manager Jim Cramer and Director of Research Jack Mohr reveal their investment tactics while giving advanced notice before every trade.

Product Features:
  • $2.5+ million portfolio
  • Large-cap and dividend focus
  • Intraday trade alerts from Cramer
Quant Ratings

Access the tool that DOMINATES the Russell 2000 and the S&P 500.

Product Features:
  • Buy, hold, or sell recommendations for over 4,300 stocks
  • Unlimited research reports on your favorite stocks
  • A custom stock screener
Stocks Under $10

David Peltier uncovers low dollar stocks with serious upside potential that are flying under Wall Street's radar.

Product Features:
  • Model portfolio
  • Stocks trading below $10
  • Intraday trade alerts
14-Days Free
Only $9.95
14-Days Free
Dividend Stock Advisor

David Peltier identifies the best of breed dividend stocks that will pay a reliable AND significant income stream.

Product Features:
  • Diversified model portfolio of dividend stocks
  • Updates with exact steps to take - BUY, HOLD, SELL
Trifecta Stocks

Every recommendation goes through 3 layers of intense scrutiny—quantitative, fundamental and technical analysis—to maximize profit potential and minimize risk.

Product Features:
  • Model Portfolio
  • Intra Day Trade alerts
  • Access to Quant Ratings
Real Money

More than 30 investing pros with skin in the game give you actionable insight and investment ideas.

Product Features:
  • Access to Jim Cramer's daily blog
  • Intraday commentary and news
  • Real-time trading forums
Only $49.95
14-Days Free
14-Days Free
AAPL $94.19 -1.04%
FB $118.06 0.54%
GOOG $695.70 0.48%
TSLA $222.56 -4.20%
YHOO $36.00 -0.03%


Chart of I:DJI
DOW 17,651.26 -99.65 -0.56%
S&P 500 2,051.12 -12.25 -0.59%
NASDAQ 4,725.6390 -37.5850 -0.79%

Free Reports

Top Rated Stocks Top Rated Funds Top Rated ETFs