Representing the Individual

• Pages: 71-84

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CHAPTER 4

REPRESENTING THE INDIVIDUAL

Representing an individual in a criminal antitrust investigation may

require navigating through several possible scenarios, depending on the

individual’s status in the investigation. If the person is a target or

potential target of the investigation, counsel will need to obtain as much

information about the client’s involvement and work through several

very sensitive decision points: whether immunity is possible, whether to

cooperate with the investigation, and whether to plead guilty or contest

any charges brought by the government. If the client needs to testify

before the grand jury, the lawyer will need to prepare the client for the

grand jury experience and advise the individual on her rights and

obligations.

In general, counsel must assess the client’s role in the investigation

as well as the U.S. Department of Justice’s Antitrust Division’s

(Division) view of the client’s involvement and determine the best

strategy for the client under the circumstances. Counsel should consult

the Division’s leniency policies and other public statements for further

guidance beyond what is summarized in this Chapter.1

A. Initial Meetings and Other Tasks

Counsel’s first tasks will depend on the reason why they have been

hired and the client’s role in the investigation. It is common for the

Division to recommend to corporate counsel that separate counsel be

retained for certain current or former executives who are potential targets

of the investigation. At times, the company decides for itself to retain

counsel for an individual as a result of its internal investigation. It is also

possible that the individual has decided to seek counsel separate from the

company’s lawyers.

1. U.S. Dep’t of Justice, Antitrust Division Leniency Policy and Procedures

(Apr. 4, 2022) § 7-3.310, available at https://www.justice.gov/atr/page/

file/1490246/download. See generally U.S. Dep’t of Justice, Antitrust

Division, Criminal Enforcement, available at https://www.justice.gov/atr/

criminal-enforcement.