Rule 2: Go Re-Read Rule 1

Over at Not a Potted Plant, the Transplanted Lawyer (in the course of explaining a decision by Justice Scalia the principled basis of which requires resort to a proctologist with a flashlight) is kind enough to give us a shoutout for what he aptly calls our Rule #1: Just Shut Up.

Well, technically, that was my Rule #1, inspired by my criminal practice. But I suspect that Patrick would agree it's usually applicable to civil practice as well. The bottom line: when folks on the other side of the v. want you to run your mouth, it's almost never in your best interests. Rather, it's almost always in their best interest.

I'm in Miami this week for the American Bar Association's annual White Collar Crime Conference. At one of the many alcohol-drenched social events at which the defense lawyers mingle, I had occasion to discuss recent trends in the consequences of clients failing to shut the fuck up. I've talked before about a chickenshit tactic the feds have increasingly been using in the last decade — interrogating suspects, and then charging them with false statements to the government in violation of 18 U.S.C. section 1001 if they deny their guilt. This week some colleagues pointed out a fun variation on this practice. This colleagues practice maritime law, which often involves getting rolled out of bed at three in the morning because your client's vessel has been detained by the Coast Guard for discharging oil or dumping garbage or some other environmental regulatory violation. Very often, federal investigators pursuing maritime incidents don't have a wide variety of charges available to them — in fact, often the only possible charges are misdemeanors.

But 18 U.S.C. section 1001 is a felony. You see where this is going, right?

So increasingly the feds approach maritime incidents by aggressive questioning of everyone involved — often including crew members who may speak little English, may be unsophisticated, and may come from countries where you lie to the police to avoid being shot in the head. The feds go into those interviews with a specific belief about what happened in the incident, and if they get a statement in variance with that belief, they use it to bootstrap a misdemeanor violation of maritime regulations into a felony false statement to the government. In some circumstances they can even bootstrap it into felony charges against the company, or against supervisory personnel, on the theory that the false statements are part of a deliberate cover-up of the incident.

How to respond to this? Well, do I need to read Rule One to you again? Shut up, for God's sake. Now, I'm aware this fights with every instinct as a suspect — and often instincts as a lawyer. As a suspect you're conditioned by popular culture to believe that you need to cooperate and talk your way out of the situation or you'll be arrested. As a lawyer, we're conditioned to believe that the worst possible thing to happen is for your client to be arrested because you didn't somehow finesse the situation. Fight those instincts. Shut up. The people wanting to question you — or your client — do not care about your best interests. They care about charging someone. It might as well be you.

Last 5 posts by Ken White


  1. says

    You went to the ABA White Collar Crime conference? What a suck-up. Did you bond with prosecutors? Drink with them? Trade deep, dark secrets with them? Did you learn much from lawprof speakers who've never been inside a courtroom, or government speakers informing you of the fastest way to get a 5k1.1 letter?

  2. says

    I did drink with one prosecutor I worked with about 15 years ago. And I waved hello two three or four in the hall. But other than that, I was hanging with other defense lawyers. Of course, many of them were former prosecutors, which I believe makes them suspect in your worldview, so there's that.

  3. says

    Look, old man, I'm nowhere NEAR your lawn.

    I'm civil and friendly to a number of prosecutors. Some have been friends for 15 years. I'm not civil or friendly to prosecutors who have misbehaved or treated me or my clients badly. Some prosecutors are evil, some aren't. I can drink with the ones who aren't. I'm at peace with that.

  4. says

    Some of my best friends were once prosecutors. I let them sit on the porch with me in the rocking chairs and talk about the good old days.

  5. Cloudesley Shovell says

    I would be more at peace with 18 USC 1001 if it applied equally in the other direction–any gov't employee or agent lying to a citizen. Give 'em a taste of their own medicine.