Welcome to Federal Lawyers. If FBI agents just executed a search warrant at your company, you’re facing a situation that’s fundamentally different from a home raid – and most business owners don’t understand why until it’s too late. Your company’s lawyer is not YOUR lawyer. The internal investigation your company is about to conduct isn’t designed to protect you. It’s designed to identify who the company can sacrifice to save itself.
Here’s the counterintuitive truth that every business owner needs to understand immediately: the corporate attorney working on your case represents the corporation, not you personally. Under something called the Upjohn doctrine, everything you tell that attorney can be handed directly to federal prosecutors. The company owns the privilege. The company can waive it. And when prosecutors come offering the company a deal in exchange for individual accountability, you become the offering.
The FBI didn’t raid your business at random. Federal investigations don’t start with raids – raids are one of the final steps. By the time agents showed up with a warrant, the investigation has been running for months or years. Your employees may already be cooperating. Documents have already been subpoenaed. The government has a theory of the case. They’re not fishing. They know exactly what they’re looking for, and the raid is about obtaining the final pieces of evidence before indictment.
The Upjohn Trap: Why Your Company’s Lawyer Isn’t YOUR Lawyer
After the raid, your company will hire attorneys to conduct an “internal investigation.” This sounds like a good thing. It sounds like the company is getting to the bottom of what happened. Heres what you need to understand about what’s actually happening.
The 1981 Supreme Court case Upjohn Co. v. United States established that attorney-client privilege protects communications between a company’s counsel and its employees. But there’s a critical catch that most employees and even some executives dont grasp: the privilege belongs to the corporation, not to you personally.
Before interviewing you, corporate counsel is supposed to give you something called an “Upjohn warning” – sometimes called a “corporate Miranda warning.” This warning tells you three things: the attorney represents the company, not you; the attorney-client privilege belongs to the company; and the company can choose to waive that privilege and share everything you say with third parties, including prosecutors.
Think about what that means. Your cooperating with the internal investigation. Your answering questions honestly because you beleive the company’s lawyer is trying to help you. But every word your saying is being documented. And if the government comes to the company offering a deferred prosecution agreement – which requires the company to identify individuals responsible for wrongdoing – your words become the ammunition used against you.
The company’s attorney works for the company. Period. When the company’s interest diverges from your interest – and it will – you lose.
Attorney our lead attorney has seen this dynamic destroy business owners who thought they were doing the right thing by cooperating with internal investigations. The company’s goal is survival. Your goal is staying out of prison. Those two objectives are not aligned, and pretending they are will cost you everything.
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(212) 300-5196Consider what happened in the Enron investigation. Corporate counsel conducted extensive internal interviews with executives. Those executives cooperated fully, beleiving the company’s lawyers were there to help. When the company collapsed and prosecutors came calling, the interview memos became key evidence in criminal cases against individuals. The executives who thought they were helping the investigation were actualy building the cases that sent them to prison.
The same pattern has played out in pharmaceutical fraud cases, financial services prosecutions, and healthcare fraud investigations. Companies facing criminal exposure routinly cooperate with prosecutors by turning over the results of internal investigations – including detailed accounts of what individual employees said and did. The individuals who participated in those investigations typically had no idea there words would be handed to federal prosecutors.
Your Employees Are Already Cooperating (The Raid Proves It)
Heres something most business owners dont want to accept: by the time the FBI raids your business, your employees have probly already been talking to federal agents. The raid itself is evidence that the investigation is advanced.
Federal investigations dont start with dramatic warrant executions. They start with document review, financial analysis, surveillance, and witness interviews. Agents approach employees – sometimes former employees – and ask questions. They issue grand jury subpoenas for records. They build there case methodicaly over months or years before executing a search warrant.
The raid happens when investigators beleive they have enough to move forward but need specific documents or devices to complete the case. By the time agents are walking through your office, the government already has a theory. There not exploring possibilities. There gathering the final evidence.
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
What does this mean practicaly? It means some of your employees may already be cooperating witnesses. It means the person who smiled at you yesterday in the break room might have a cooperation agreement with the US Attorneys office. It means statements you made casually around the office – thinking they were just between colleagues – may already be documented in FBI 302 reports.
You arrive at your office Monday morning to find FBI agents with a search warrant seizing computers, client files, and financial records from your business. Your company's general counsel tells you not to worry and that the corporate legal team will handle everything for both the company and you personally.
Should I rely on my company's lawyer to protect my interests during and after an FBI raid on my business?
Absolutely not — you need to retain your own independent criminal defense attorney immediately. Under the doctrine established in Upjohn Co. v. United States, your company's attorney represents the corporation, not you individually, and anything you tell that attorney can be disclosed to the government if the company decides to cooperate. Federal prosecutors routinely pressure corporations into waiving attorney-client privilege and turning over employee interview notes as part of deferred prosecution agreements under the DOJ's corporate enforcement policies. Your personal attorney can invoke your Fifth Amendment rights, ensure you don't inadvertently make statements during internal interviews that become evidence against you, and negotiate directly with federal agents or prosecutors on your behalf.
This is general information only. Contact us for advice specific to your situation.
The FBI’s description of the federal criminal process shows how investigations progress through stages. What it dosent show is how long each stage takes or how much information the government accumulates before you ever know your under investigation. By the time the raid happens, the case against you may already be substantially built.
Look at the Carahsoft raid in September 2024. When FBI agents showed up at the major IT contractors headquarters, the investigation had been running since at least 2022 – more then two years of document gathering and witness interviews before the public ever knew anything was happening. The employees who were “surprised” by the raid probably shouldnt have been surprised at all – there colleagues had likely been talking to investigators for months.
This is the reality of federal business investigations. The raid isnt the beginning. Its closer to the end. And understanding this timeline matters because it changes how you should respond. Your not trying to prevent an investigation from starting. Your trying to manage one thats already well underway.
