When a government investigation targets a company, the general counsel often becomes the focal point for managing the response. But in this role, counsel must take extra care not to cross the line from defense into obstruction. Both federal and state laws impose serious penalties for actions that may be construed as tampering with evidence, misleading investigators, or obstructing proceedings. Understanding these risks—and taking proactive measures—can help general counsel protect themselves while guiding their organizations through difficult investigations.
Federal Obstruction Laws
Federal obstruction laws are intentionally broad and can be tricky to navigate. The laws include:
Witness Tampering– Under 18 U.S.C. § 1512(b), it is a crime to corruptly persuade, mislead or otherwise influence another person to delay or withhold testimony or evidence in an official proceeding. The law also applies to efforts to prevent someone from communicating information to law enforcement. Importantly, liability does not require that a proceeding already be pending, only that the accused reasonably believes information may be shared with authorities. The statute excludes conduct where the sole intention is to encourage truthful testimony, but the line between coaching and corrupt persuasion can be dangerously thin.
Evidence Tampering– General counsel also must avoid any conduct that could be interpreted as altering or concealing documents or objects. Section 1512(c) makes it a crime to corruptly alter, destroy or create false records with the intent to impair their availability for an official proceeding. Courts have applied this provision broadly, including newly created documents containing false information.
Destruction or Falsification of Records– Section 1519 adds another layer of exposure. It criminalizes knowingly altering or falsifying records to impede or obstruct the “investigation or proper administration of any matter” within federal jurisdiction. This provision applies even before formal proceedings begin, extending risk to early stages of government inquiries.
It’s important to remember that across obstruction statutes, state of mind is central. Acting “corruptly” means pursuing an improper purpose to obstruct. Misleading conduct includes false statements, material omissions, reliance on false records or tricks intended to deceive. Please note that successfully obstructing evidence is not required and merely attempting to obstruct can be enough to prosecute.
State-Level Offenses
Pennsylvania law provides additional pitfalls. Section 5101 criminalizes intentionally obstructing the administration of law or governmental functions through force, interference or other unlawful acts. Section 5105 prohibits hindering apprehension or prosecution by concealing evidence, tampering with witnesses or providing false information to law enforcement. Section 4904 further criminalizes unsworn falsification to authorities, such as submitting false written statements or forged documents.
Although state statutes are narrower than their federal counterparts, they still create meaningful exposure for attorneys. Notably, Pennsylvania courts have recognized constitutional limits to obstruction statutes when applied to attorneys who delay turning over evidence, underscoring the importance of understanding both statutory language and case law.
How General Counsel Can Protect Themselves
The complexity of these overlapping laws means general counsel must be proactive. Best practices include:
- Avoid trouble before it starts. The Justice Department’s Principles of Federal Prosecution of Business Organizations provides a roadmap for corporate compliance. Building a culture of transparency and cooperation reduces the risk of obstruction claims.
- Issue litigation holds immediately. When records may be relevant to an investigation, suspend routine document destruction and notify employees to preserve evidence.
- Engage outside counsel. Independent representation for the company provides a layer of protection and credibility in interactions with the government.
- Rely on the advice-of-counsel defense. Demonstrating that decisions were guided by legal advice can mitigate allegations of corrupt intent.
- Consider internal investigations carefully. If one is warranted, ensure accuracy and candor with the investigators you hire. Misrepresenting facts during an internal review can create additional liability.
- Avoid personal involvement in employee interviews. Use outside counsel to question employees and provide individual representation when appropriate. A joint defense privilege may be useful, but employees should not be left to rely solely on company counsel.
- Don’t over-rely on privilege. Attorney-client privilege has limits, particularly in government investigations. Assume that some communications may eventually be disclosed.
In conclusion, government investigations place extraordinary pressure on general counsel, who must balance loyalty to the company with personal legal risk. Federal and state obstruction statutes are intentionally broad, capturing not only overt acts like shredding documents but also subtler conduct such as omissions, misleading statements or premature coaching of witnesses. The key to avoiding liability lies in preparation, transparency, and careful use of outside counsel. By taking these steps, general counsel can navigate investigations effectively—while ensuring they themselves do not become part of the story.
