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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.