How Can a Lawyer Help During an OIG Investigation??

It can be a stressful time for employees of a federal agency (and others who might be under investigation by an Inspector General’s office) to await the outcome of a process that feels uncertain and that can take quite a while to resolve.

You should not reach out directly to the OIG. Your attorney should do so for updates on the investigation. But be wary of an attorney who takes a hands-off approach to the process. Doing so is a mistake. An effective attorney will seek to build relationships with investigators, and advocate for you at every stage.

But at which stages during an OIG investigation, you might wonder, can an attorney have an effect on the outcome?

Agents Show up Unannounced

It’s common for people to discover that an OIG investigation is underway after agents show up unannounced at the office or at home. These interviews are presented as “voluntary,” which may be misleading. Your attorney is your most valuable resource from the start.

Rather than speak with the agents directly, you should instead reach out to your union (if you have one) or an attorney. Your union may be able to provide you with an attorney, if you are a member with full rights.

Your attorney’s first step should be to ask agents if you are a subject of the investigation or a witness, and whether the conduct at issue is an alleged policy violation or could possibly be criminal. The response to those questions informs every decision going forward.

At the outset of a case, an attorney should also find out if a “Kalkines” or a “Garrity” warning is applicable and what this means. It is also important to determine whether it is appropriate for you to decline an interview. In some cases, failing to comply with an interview request could result in disciplinary action, depending on the agency. If no immunity has been offered, you may be able to invoke your Fifth Amendment protections.

Once you complete the interview, do not think that the investigation process is over and you have no other opportunity to be heard. Your counsel should make periodic status inquiries, provide additional information you are asked to provide (after consulting with you), and also ask whether the scope or subject of the investigation has changed.

OIG investigators are often very aggressive about pursuing cases and attempting to stretch facts and/or the law, resulting in the pursuit of cases on the margins. Your attorney is your advocate at this stage, and will be able to respond, potentially in the form of an oral proffer or a written white paper, explaining why no misconduct or crime occurred.

It’s also important to know that many (but not all) OIGs reach out to your attorney before publishing their report, and may allow your counsel to view a draft and/or hear conclusions and recommendations for the report.

If the draft is not favorable, your counsel may (upon permission from the OIG) be able to prepare a response and submit it as an attachment to the final published report. This is likely your last chance to correct misperceptions and affect final conclusions. Even if the original conclusions are not revised, this gives you a chance to publicly air your side of the story.

But be careful: writing a response could have some downsides. For instance, if you are under criminal investigation, your written response could be an early preview of your defense, and if you end up making a statement that is later proven to be false, you could be subject to an obstruction charge for impeding the OIG’s investigation.

Harm of Publication

The report is out. Game over, right? Not at all. Your attorney has a lot left to do now. It’s time to change course and start trying to minimize the harm of publication.

The OIG may have referred the case to the Department of Justice or a United States Attorney’s Office. Your immediate priority is convincing prosecutors not to file charges, which may involve multiple phone calls and meetings with their supervisors.

A copy of the report has also been sent to the agency’s Office of General Counsel (OGC), so that the OGC may make disciplinary determinations. The OIG sometimes makes recommendations for specific penalties, but the OGC is not obligated to accept any of the OIG’s findings or recommendations for discipline.

Your counsel will reach out to the OGC in an attempt to avoid discipline altogether or lessen the penalty it seeks to impose. The OGC may be more open to these arguments than the OIG was.

If you are an attorney for the agency, the report may have also gone to your Office of Professional Responsibility (OPR). OPR inquiries are administrative but can have disciplinary repercussions or even result in a referral to the state bar, thereby putting your license in jeopardy.

Your attorney should reach out to any and all offices that received a copy of the report (including OPR, the Office of Whistleblower, and any others). They will determine the office’s internal process, the potential exposure you face, and what next steps are necessary. The OPR may want to interview you, but this may not be advisable if your case has been referred for criminal prosecution. A careful course of advocacy is critical to protecting your license.

People being investigated commonly feel a sense of anger and injustice, and want to have their voices heard. But you need to be careful about public statements while the investigation is ongoing, and it is wise to seek legal advice before making any public statements. If your rights were violated, it is possible to file a Privacy Act lawsuit. But consult your counsel before taking any action in this regard.

While OIG investigations lack rules of procedure and there is no roadmap as one progresses, akin to the plight of Kafka’s Josef K., there nonetheless are many opportunities for counsel to have an impact on the process. You need not feel that you simply have to passively endure the experience.

One more caution about the interview stage: there are some authorities suggesting that a voluntary interview with the OIG may result in a waiver of your Fifth Amendment protections. This is a fascinating topic for a future blog post.