Criminal Defense Lawyers

How Criminal Defense Attorneys Investigate Whistleblower Claims

How Criminal Defense Attorneys Investigate Whistleblower Claims

When a whistleblower makes allegations of wrongdoing that could potentially lead to criminal charges, the first step for any company or individual implicated is to hire an experienced criminal defense attorney. Criminal defense attorneys have a variety of tools at their disposal to conduct a thorough investigation of whistleblower claims and build the strongest possible defense for their client.

Understanding the Allegations

The starting point for any criminal defense attorney is to fully understand the whistleblower’s allegations. This means reviewing the whistleblower’s complaint in detail and identifying the specific laws or regulations that have allegedly been violated. The attorney will also want to learn as much as possible about the whistleblower themselves – their background, motivations for coming forward, and what evidence they have to support their claims.Thorough knowledge of the allegations is critical for developing an effective defense strategy. The attorney will formulate defense arguments to counter each element of the alleged violations. They will also devise a plan to undermine the credibility of the whistleblower if their testimony is a key aspect of the case.

Interviewing Witnesses and Principals

A hallmark of any defense investigation is for the attorney to conduct interviews of witnesses and principals (those implicated by the whistleblower) to gather information. The goals of these interviews include:

• Learning the full context of the allegations from the perspective of principals and witnesses
• Uncovering facts or documents that refute the whistleblower’s claims
• Identifying other individuals who can provide favorable testimony for the defense
• Assessing the credibility of the whistleblower versus other potential witnesses
• Developing alternative explanations for the alleged misconduct

Skilled criminal attorneys know how to conduct interviews in a way that draws out useful information while avoiding any missteps that could compromise the defense. They will focus the discussion on the specific allegations and identify gaps and inconsistencies in the whistleblower’s account.

Collecting Documents and Data

In addition to interviews, criminal defense attorneys will gather all documents and data that could be relevant to either proving or disproving the whistleblower’s allegations. This can include:

• Emails, memos, reports, and other corporate documents related to the alleged misconduct
• Phone records, travel receipts, and calendar entries that may provide an alibi or different timeline of events
• Financial statements, accounting records, and bank documents that contextualize any monetary allegations
• Digital forensic evidence from company databases, computers, or mobile devices
• Any physical evidence that could contradict the whistleblower’s descriptions

Thorough document collection and review allows the defense team to fully understand the circumstances surrounding the alleged violations from multiple perspectives.

Conducting Independent Investigation

Criminal defense attorneys have investigative resources at their disposal to dig deeper into whistleblower allegations and uncover additional facts. They may utilize professional investigators to interview a wider range of witnesses or engage forensic accountants to analyze complex financial transactions.The defense team may also conduct undercover investigations to test the veracity of whistleblower claims. For example, they could secretly record a conversation with the whistleblower to catch them contradicting their own allegations. Or they could have investigators attempt to replicate the alleged misconduct to demonstrate it did not occur.Independent investigation provides the defense with a more comprehensive body of facts for rebutting the whistleblower’s claims and formulating alternate explanations. It also strengthens credibility if the attorney can back up their defense arguments with objective evidence from skilled professionals.

Assessing Potential Criminal Exposure

A top priority for any criminal defense lawyer is to assess the actual criminal liability faced by their client based on the whistleblower’s allegations. The attorney will research the specific laws pertaining to the alleged violations and analyze previous cases prosecuted under those statutes. This allows them to gauge the strength of the whistleblower’s claims and the likelihood of indictment.If potential criminal exposure exists, the attorney will advise the client on options for avoiding charges – such as negotiating a civil settlement with regulators or attempting legal challenges to the whistleblower process. The goal is to find a resolution that satisfies investigators without leading to criminal prosecution.

Reporting Findings to the Client

Throughout the investigative process, the criminal defense lawyer will provide regular updates to the client regarding findings, defense strategy, and options going forward. Attorney-client privilege allows for frank discussions about the nature of the allegations and the client’s involvement.In the findings report to the client, the attorney will outline the whistleblower’s specific allegations, summarize the defense’s investigative efforts, highlight the most compelling defense arguments and evidence, assess the current risks and likelihood of criminal charges, and recommend next steps. This keeps the client fully informed on the status of the case and the attorney’s planned response.

Interacting with Regulators and Prosecutors

A criminal defense attorney’s investigation serves to prepare for any interactions with regulators or prosecutors related to whistleblower allegations. The attorney will approach these interactions strategically, using their investigative findings to advocate for the client.If regulators become involved, the attorney highlights cooperation, provides exculpatory evidence, and works to resolve any civil violations short of criminal referral. With prosecutors, the lawyer emphasizes defense evidence debunking the whistleblower’s claims and questions the legitimacy of the allegations and investigation.The aim is to persuade regulators and prosecutors that charges are unwarranted based on the defense’s investigative findings. Skilled criminal attorneys know how to present this information in the best light possible for their client.

Preparing a Defense Strategy for Trial

Should regulators or prosecutors pursue charges, the criminal defense attorney will mobilize the full force of their investigative findings to mount an aggressive trial defense. This can include:

• Filing motions to dismiss the charges or suppress evidence based on investigative findings
• Presenting testimony from friendly witnesses interviewed during the investigation
• Using documents and records obtained to contradict the whistleblower’s account
• Calling expert witnesses to debunk the whistleblower’s technical allegations
• Introducing evidence of whistleblower bias, lack of credibility, or ulterior motives
• Developing an alternative narrative backed up by defense investigation

Thorough pre-trial investigation allows the criminal defense lawyer to confidently fight the charges rather than advising the client to settle or plead guilty. Even if charges are filed, the attorney’s investigative findings can be weaponized to achieve full acquittal at trial.

Protecting the Client’s Reputation and Livelihood

Beyond defeating potential criminal charges, a good criminal defense attorney will also leverage their investigation to protect the client’s reputation and professional standing. This can mean:

• Crafting PR strategies to counter public assumptions of guilt
• Promoting defense evidence that refutes the whistleblower’s claims
• Seeking retractions or corrections of misleading media coverage
• Threatening defamation lawsuits against accusers making false allegations
• Advising the client on managing communications related to the allegations

For high-profile clients, allegations of criminal misconduct can be extremely damaging even if charges are never filed. An experienced criminal defense lawyer will take every measure possible not just to avoid conviction, but to protect the client’s overall livelihood going forward.

Conclusion

When faced with whistleblower allegations, launching a rigorous independent investigation guided by skilled criminal defense counsel is critical. The attorney’s investigative process aims to fully understand the allegations, collect exonerating evidence, assess criminal exposure, interact strategically with regulators and prosecutors, and ultimately defeat any charges or reputational damage. With an attorney’s expertise in building a defense case and protecting the client’s interests, companies and individuals can emerge from the whistleblower process with their freedom and reputations intact.

Sources

• When A Whistleblower Investigation Turns Criminal<sup>
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• Federal Whistleblower Cases | Eisner Gorin LLP<sup>
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• Beware of Potential Criminal Implications for the Improper Handling of a Whistleblower Investigation<sup>
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• IRS whistleblower in Hunter Biden investigation removed from probe, his attorneys say<sup>
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• IRS whistleblowers air claims to Congress about ‘slow-walking’ of the Hunter Biden case<sup>
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