CHAPTER 5 DEFENSE OF CRIMINAL ENVIRONMENTAL PROSECUTIONS

• Jurisdiction: United States

Natural Resources & Environmental Litigation II
(May 1996)
CHAPTER 5
DEFENSE OF CRIMINAL ENVIRONMENTAL PROSECUTIONS
Harold A. Haddon
Lee D. Foreman
Haddon, Morgan & Foreman, P.C.
Denver, Colorado

I. INTRODUCTION

This paper contains a discussion of tactical and legal issues which arise in the defense of a criminal environmental prosecution. Potential ethical issues are also reviewed.

II. INVESTIGATIVE STAGE

A. Response to a search warrant. Most environmental investigations begin with a search warrant. Federal agents typically seal off the suspected site, take soil and water samples, seize documents and attempt to interrogate high company officials. Effective response to a search warrant requires the company and its counsel to immediately do the following:

1. Insist on split samples of all suspected wastes. See 42 U.S.C. § 6927(a). Make a record of the location of all samples taken.

2. Videotape the search, especially the sampling. If videotaping is impractical, have a designated company official or investigator follow the agents and record their activities.

3. Immediately counsel key employees—e.g., the plant manager, CEO and environmental manager — that they should not grant interviews to investigators without first consulting with counsel.

4. Insist that privileged documents be sealed and submitted to a judge for privilege determinations.

5. Ask for a copy of the affidavit in support of the search warrant. If the government has sealed the affidavit, move the court to unseal it. See In the Matter of the Search of a Residence, 121 F.R.D. 78 (E.D. Wis. 1988) (government cannot keep affidavit sealed indefinitely; subject of search has the right to know basis of search warrant application in order to seek return of seized property); Offices of Lakeside Nonferrous Metals, Inc. v. U.S., 679 P.2d 778 (9th Cir. 1982) (trial court has authority to unseal affidavit on showing of hardship to target of search).

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B. Conduct a Vigorous Defense Investigation

1. Obtain your own samples and test them expeditiously.

2. Interview all relevant witnesses immediately. There are a number of practical and ethical issues which may arise when conducting witness interviews. Here are some guidelines:

(a) Use independent investigators for witness interviews to avoid disqualification of attorney if witness needs to be impeached. Investigator should not be employee of the law firm to avoid vicarious disqualification.

(b) Avoid signed witness statements and verbatim quotes to insulate interviews from grand jury subpoena and discovery under F.R.Crim.P. 26(e).

(c) Don't pick up hot potatoes. Investigators need to be well-trained in evidence-gathering: if there is any question that a document or physical evidence might be incriminating, investigator should not copy it or seize it without consulting the attorney.

(d) Avoid subterfuge. Rules of Prof. Conduct 5.3.

(e) No surreptitious tape recording. ABA Informal Opinions 1008, 1009 (1967).

(f) No interviews of represented parties without consent of counsel. R.P.C. 4.3.

(g) Bystander witnesses and former employees of adverse organizations can be interviewed without consent of corporate counsel. R.P.C. 4.2; ABA Formal Op. 91-359 (1991); Colo. Formal Op. 69 (1987 revision).

(h) Witnesses need not be warned of Fifth Amendment rights. ABA Standards §4-4.3(b). Conversely, at the attorney's option, witnesses can be advised to get an attorney or exercise Fifth Amendment rights. ABA Informal Op. 575 (1962); ABA Standards, pp 4-58.

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III. ORGANIZATION AND DISTRIBUTION OF INFORMATION

A. Document Organization and Prioritization.

1. Always Bates-stamp documents produced to the government and make copies of all documents produced.

2. Computer-scan key documents.

3. Summarize all documents by key words and topic.

4. Computerize ability to locate documents with search of author, recipient, date, topic, key words.

5. Keep an "Oops" file.

6. Keep a "Gotcha" file.

B. Witness bucket files. Keep a separate hard-copy file on each potential witness, to include interview memos, personnel file and key documents.

C. Quick references, updated monthly.

1. Who's who, alphabetically.

2. Chronology.

3. Acronym list.

4. Organizational charts: current and historical.

IV. DEFENSE BOOKS, UPDATED MONTHLY, FOR ALL TOPIC AREAS

A. Section for key witnesses—summarize position, statements, key documents relating to that witness.

B. Section outlining statutes/regulations regarding applicable offenses and defenses.

C. Chronology for topic area.

D. Include copies of all documents key to that topic.

E. Include follow-up "To-do" list.

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V. CARE AND FEEDING OF THE DEFENSE TEAM

A. Complete distribution of all interviews.

B. Summaries of new developments.

C. "All Hands" meetings—monthly, weekly as necessary with all defense lawyers and investigators.

D. Divide responsibilities among defense lawyers so that each specializes in at least one aspect of the defense.

VI. JOINT DEFENSE AGREEMENTS AMONG LAWYERS REPRESENTING THE COMPANY AND INDIVIDUAL EMPLOYEES

A. Allows sharing of investigators and experts.

B. Insures that if some employees later become government witnesses, shared information does not fall into government hands.

C. The policy underlying the joint defense privilege is the encouragement of inter-party communications and the promotion of efficiency in the legal system, thereby saving money, time and effort for courts and potential litigants. In criminal cases, however, the need for a joint defense agreement extends beyond issues of efficiency and expense, and may impact a client's right to adequate and effective representation. In United States v. McPartlin, 595 F.2d 1321, 1336 (7th Cir.), cert. denied, 444 U.S. 833 (1979), the Court noted that confidential and uninhibited communication among joint parties "can be necessary to a fair opportunity to defend.:" Likewise, in Continental Oil Co. V. United States, 330 F.2d 347, 350 (9th Cir. 1974), the Court concluded that the joint defense privilege "is a vital and important part of the client's right to representation by counsel."

Those courts that have addressed the validity of the joint defense privilege have approved the joint defense agreement as a legitimate tool of an effective defense against possible criminal prosecution. Thus, the joint defense privilege has been held to...