To avoid the potential catastrophe of a federal indictment, business firms are taking extraordinary steps to placate federal prosecutors. And those prosecutors now regularly insist on the following:
- That business firms surrender or “waive” their attorney‐client privilege,
- That firms must pressure their employees to waive their constitutional right against self‐incrimination,
- That firms facing indictment refuse to advance legal fees to employees under investigation — even if a firm concludes that an employee was just following directions or is otherwise innocent of any wrongdoing, and
- That embattled firms must discharge certain employees at the direction of the government — even if a firm concludes that an employee was just following directions or is otherwise innocent of any wrongdoing.
Any organization that balks at the government’s demands risks months of negative publicity as prosecutors characterize a legal defense as “impeding” or “obstructing” the investigation. It is no overstatement to say that the enforcement of the criminal law, at least insofar as it applies to investigations of organizations, amounts to a state‐sponsored shakedown scheme in which business firms are extorted to pay penalties that are grossly out of proportion to any actual misconduct.