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Until they have to, most people don’t think about hiring a lawyer, let alone a criminal defense lawyer. Knowing how to find a criminal defense attorney is not on a regular person’s mind. Time may come, however, when this question becomes not only relevant but crucial to your quality of life.

At Norman Spencer Law Group, we speak with individuals looking for a defense attorney every day. After years of consulting with prospective clients, we realize that many people who need to retain a criminal lawyer are not prepared to make an educated decision. Instead, they make emotional decisions. That is understandable but is also ineffective. How do you know whether the criminal defense lawyer you hire is the best one for you?

Hiring a criminal defense lawyer is your responsibility, and nobody can make that decision for you in most cases. However, you can educate yourself on some of the basics so you can make that choice with confidence. In this guide, we share some of our thoughts on choosing the best criminal defense lawyer for your unique situation. Some things are self-obvious, but some are not, and some may even seem counter-intuitive. If you have more questions after reviewing this guide, feel free to call us for a consultation.

No Single Lawyer Can Be the Best at Every Legal Branch for Every Client

First, there is no such thing as the best lawyer. Many bar associations frown upon lawyers calling themselves the best in their advertisements, and most people would agree that there is no such thing. There is no best food, just as there are no best doctors or best architects.

Some legal services are suitable for some people but are not so good for others. Some things are always wrong; we all agree to that. However, there isn’t one thing that is always good for everyone at all times. The same goes for attorneys. Let’s apply this to criminal defense lawyers. Some are good at what they do, and some are not. Some are good for some types of criminal cases but not for others. Some are good for certain types of clients but would not fare well with others.

There are many private criminal defense lawyers in the United States. We have more lawyers than any other country, and that number is growing each year as more students enter law schools and more prosecutors leave their jobs to enter private practice. Here are more interesting facts on lawyers:

• As of 2020, there are 1.33 million lawyers in the U.S.
• Approximately 50,000 of those are criminal defense attorneys
• Federal criminal defense attorneys must be admitted to the bar of a specific federal court before practicing in it
• 57% of consumers search online for a lawyer on their own

The Internet is bustling with thousands of attorney websites, many claiming to be the best or the most experienced in the field. How do you decide which firm is the right one? Let’s break it down.

Look Beyond the Marketing Tactics

Unless you already know a lawyer to speak with or find a lawyer through word of mouth, chances are you are like most other prospective clients. You will turn to the Internet search. You will find an infinite number of sites offering their services. Here, you are at risk of getting lost and making an emotional decision rather than a rational one.

Law firms are businesses. That means that they have to market themselves to get new clients. There is nothing wrong with it. Marketing is vital for any business and always has been. To be successful, the marketing campaign needs to sell to customers or clients. Many firms use bells and whistles to attract clients and push you into making emotional decisions. It’s called converting. This strategy has been used since the beginning of marketing and is not specific to lawyers.

Recognizing this is important. It doesn’t always mean that the firm that uses tacky and loud statements does not provide good services or is unethical. Just remember that when you see a site like that, you are being sold to. Looking beyond what you see on a website will help you make the best decision about hiring a criminal defense lawyer who is right for you.

Federal or State: An Attorney with the Right Experience is Crucial

The most important question you should ask is whether the lawyer you are considering has the right experience. The correct question would be, does the lawyer have the right expertise for your case, your situation, and in the jurisdiction where your case is. No lawyer will admit on their website that they have no experience. That’s something you need to decide for yourself. Here are some thoughts.

If your case is pending in federal courts or if you deal with a federal agency investigating you, then your lawyer must have experience in federal courts and with the relevant agencies. Most laypeople don’t realize that, but federal criminal practice is dramatically different from state criminal practice. Besides various statutes, federal cases are governed by totally different procedural rules.

Some techniques apply to federal practice that are non-existent in state practice. Most defense attorneys focus on state work but have limited experience with federal cases. Some do a little bit of everything. And yes, some lawyers are generalists. They take any case that comes through their door.

A Serious Situation Needs a Specialized Attorney

So, if you are facing a federal investigation or indictment, hire a lawyer who focuses on federal defense. A lawyer who handles other areas of law, as well as criminal defense, may not be your best choice. You would not ask your dentist to do heart surgery. You will not go to a criminal lawyer if you want to get a divorce or consider bankruptcy. Therefore, you naturally need to look for an attorney who helps clients like you in cases like yours. Ideally, that should be that attorney’s primary focus area.

When you look at a law firm’s site, consider that. Larger firms have specialized practice area groups with attorneys who only focus on their areas. Smaller firms do not have that luxury. Many smaller criminal law practices and solo practitioners handle essentially any criminal case. You can see that in their practice areas.

Now, no lawyer is only specializing in only one type of criminal case. That is practically impossible. However, suppose the list of a firm’s criminal practice areas has things like DUI, battery, misdemeanors, domestic violence, and federal crimes. In that case, that firm is a general criminal defense firm. It doesn’t mean that they can’t handle a federal case like yours effectively, but they would probably not be considered specialists in cases like yours. Some bar associations don’t let their lawyers hold themselves as specialists in a particular area, but the idea is that they don’t focus on the type of matters you have.

If you do an Internet search for a particular firm, you may find that they also run sites dedicated to non-criminal areas, such as family law, bankruptcy, negligence, and so on. It is the preferred way of converting clients to keep separate sites and run separate marketing campaigns from a marketing perspective. That is another indication that the lawyer you are looking at is a generalist. Again, it does not mean the lawyer won’t be able to handle your case, but you may want someone with a particular focus on the case like yours.

Beware of Bold Claims and Inflated Results

This is where things get emotional. We are attracted to things we want. Past results are essential, of course. However, if used as bait, they are misleading. Good examples are the words such as “not losing,” “winning,” etc. Lawyers who don’t try cases don’t lose them. Winning is not always what it seems like. As legitimate legal professionals, we’d define winning as securing the best possible outcome for a particular client in a specific matter.

Marketing is essential, but so is giving you a realistic expectation. No lawyer should lead you to believe that you will always have the result you want if you hire that lawyer. That’s not right by any measure.

Read Online Reviews of Defense Attorneys in Context

Research shows that users put almost as much trust in online reviews as in personal recommendations in today’s society. You may see some law firms with a much higher number of client reviews than others. However, one thing to realize is that services like Google require users to have personal accounts to leave reviews. All reviews, including the reviewer’s name, are public. How many individuals are willing to tell the world that they were criminal defendants, investigated, or charged with crimes? Not many. Most would be reluctant to share that information.

Therefore, most firms that are working actively in the industry will have an average number of reviews. When you see a firm with the number of Internet reviews considerably higher than the average, you should ask why did all those former clients willingly let the world know that they had problems with the law?

Are Former Prosecutors Better Defense Attorneys?

Many criminal defense attorneys are former prosecutors. They use that fact in their marketing campaign. The implication is that they are somehow poised to obtain better results. Nothing could be farther from the truth. Some former prosecutors do make excellent defense attorneys. However, there is no correlation between the two. Some former prosecutors are not good defense lawyers at all. Here are some examples:

• Some former prosecutors had their tenure in local district attorney offices and have little or no experience in the federal system or the particular area of law. That also goes for former federal prosecutors. For example, a lawyer who prosecuted violent federal crimes or drug crimes may not necessarily have a good grasp of handling white-collar crimes or healthcare fraud.
• Prosecuting defendants requires different skills compared to defending them. To put it simply, it’s much more manageable. Prosecutors have much better resources at their disposal. They have teams of agents and experts who work their cases and make them ready for trial – before the defendant is even aware of anything. The fact patterns and evidence in many criminal cases are such that prosecuting them is often a walk in the park, while defending them is a formidable task.

On the other hand, good defense lawyers are skilled in finding creative solutions, often in impossible situations, to protect their clients. That is something to keep in mind. Some of the best defense attorneys we have seen in the field are those who were never prosecutors. Instead, they spent their careers in the defense bar.

Be Willing to Go Beyond the Free Consultation

Free consultation became a norm amongst many attorneys. Many clients expect free consultations and specifically ask for them. Here are some thoughts. However, it takes time to sit down with a client, listen to their story, analyze their situation, and offer an expert opinion on the matter. After getting the facts and reviewing the documents, lawyers must explain the process to the prospective clients. That takes time and effort.

The only commodity lawyers have in the legal business is time. It is often unrealistic to expect the consultation to be meaningful if it only takes a short time. The truth is that a lawyer who is willing to speak with you for at least an hour for free has this time to spend. That means that the lawyer is not busy or is desperate to get business.

When you get a free consultation, you will usually hear the lawyer tell you how experienced there are and how much you have to pay them. That is not all you want to hear. Remember, you get what you pay for. The words free consultation are sometimes nothing more than a marketing trick to get prospective clients to pick up the phone.

Think of it this way. Have you ever tried to get a free consultation with a doctor when you require medical help? You’d likely never even get beyond a receptionist. Even if you did, no doctor would be able to diagnose you without spending time with you and running and analyzing tests. Lawyers are no different.

So, How Do I Decide Which Lawyer to Hire?

If you read this far, you’re probably asking yourself what to take from all this. Well, we are all human, and we don’t always decide on logic. Emotions still play a massive role in our decision-making process. The best way to make decisions is to combine common sense, knowledge, and yes, feelings. Here is a quick summary that includes a balanced mix:

• When you need to look for a criminal defense lawyer and don’t know anyone, you should start with online research.
• Consider the information shared in this article as you go through various sites. Using this guide, you will easily reject most websites you see.
• Once you are left with the few, you are willing to consider, call them up and speak with them on the phone. Your intuition will suggest which firms to interview.
• Then, schedule a consultation to speak with the lawyers you feel are the best fit. And yes, remember that paid consultations get you better results.

You always get what you pay for. Saving a few hundred dollars may not seem like a good idea a year from now when you’ve spent thousands, and things don’t go the right way. At Norman Spencer Law Group, we will provide you with the most accurate and comprehensive information possible. We will evaluate your situation and talk with you. Then, you can decide for yourself if we are a good fit for your needs. Please call the firm at (212) 577-6677, or complete our intake form to schedule a meeting.

Whistleblowing refers to disclosing or reporting either evidence or suspicion of illegal activity. This includes healthcare fraud, criminal activity, corruption, or any practice that endangers a patient. Any private individual-employee or not- who has information about such activities can be a healthcare whistleblower. This individual is called a realtor. A healthcare whistleblower can report unlawful conduct internally through their institution or externally to regulators, watchdogs, or the media. Either way, whistleblower information is crucial in exposing institutional wrongdoing, especially in healthcare industries.

What Can a Whistleblower Report?

There are many ways a hospital or healthcare company can commit fraud, but there are a few common types, including: 

• Billing for services never performed
• Overcharging for a procedure or charging separately for procedures done together (unbundling)
• Changing medical records
• Schemes to sell unneeded prescription medication
• Any Stark Law violation

Any of these practices are grounds for a healthcare fraud lawsuit which a whistleblower can report.

Whistleblower Regulations, Protections, and Compensation

Though it may seem that whistleblowing is culturally frowned upon and may even be a crime, that is not the case. Whistleblowing is a legally protected right, and many laws exist to support anyone who has blown the whistle. The major laws are:

• The Whistleblower Protection Act (WPA) 
• The Occupational Health and Safety Act (OSHA) 
• The False Claims Act (FCA)
• Qui Tam laws 

There can also be state-specific laws that apply whistleblower protections on top of federal regulations. Some states even offer reimbursement to a whistleblower for a successful suit. The WPA forbids any punitive action against federal employees from their employers when revealing illegal conduct, mismanagement or waste of funds, an abuse of power, or a danger to public health. 

OSHA protects healthcare workers from any retaliation as a result of blowing the whistle on criminal activity. This includes being demoted, transferred to another department, or being fired. If an employee feels that any retaliation, disciplinary action, or harassment occurred because of whistleblowing, then a case can be opened under this law. The FCA compensates and protects anyone who reveals fraud or any illegal activity that causes the federal government to suffer a financial loss. Many violations of this act occur in the healthcare industry. 

Qui Tam laws involve a healthcare worker prosecuting healthcare fraud, Medicare or Medicaid fraud, or violations of the Anti-Kickback Statute. An individual can receive up to 30% of the total collected settlement. 

Can a Healthcare Whistleblower Remain Anonymous?

Whether a whistleblower can remain anonymous depends on the type of case. In most cases, however, it is difficult to achieve total anonymity for a whistleblower. Federal Rule of Civil Procedure dictates that a lawsuit must name all parties involved in a case. Even if a whistleblower cannot stay anonymous moving forward, all of the laws listed above offer protection from retaliation. 

For example, when an FCA claim is first filed, it is sealed by the U.S. Circuit Court. While the government investigates the validity of a claim, the whistleblower will remain anonymous. However, once a case is unsealed and goes public, it may not be possible to keep the whistleblower’s identity hidden. 

In Qui Tam suits, there are procedures for filing under a pseudonym, but the guidelines and requirements are strict. Considerations for a pseudonym can include:

• Information that is highly sensitive or personal
• The whistleblower fears retaliation
• A suit challenges government or private parties
• The plaintiff is in danger if their identity is revealed  
• A plaintiff’s identity is already confidential  
• A pseudonym enhances public interest 
• The public interest is weak based on presented information
• The use of a pseudonym prejudices a defendant
• Other ways to protect the plaintiff exist

Most courts deny using a pseudonym, even when there is a legitimate fear of retaliation against a whistleblower. 

Things to Keep in Mind and Prepare for Before Blowing the Whistle

There are some things to consider before deciding to blow the whistle. First, figure out if your company has an internal system for reporting whistleblower claims. Second, keep track of any relevant documents or communications that show proof of any violations of the law. If you leak any documents that you do not have access to, then a company can fire you on a non-retaliatory basis. Be careful when gathering data, and make a written report, so it is difficult to dispute the validity of a whistleblower claim.

There is no blanket law covering public health and safety whistleblowing. Any disclosures need to be framed under existing laws. Reports or documents for a claim need to pinpoint exactly what law was broken or how an action constitutes healthcare fraud. Reporting a healthcare law violation on time is also essential. The federal statute of limitations for healthcare fraud according to statute 18 USC 3282 is five years. After that time, a non-capital offense cannot be prosecuted, tried, or punished. There are also state-specific statutes of limitations to be mindful of as well. 

How Healthcare Whistleblower Fraud Attorneys Can Help

If you find yourself in the position to blow the whistle, you should first contact a law firm experienced in healthcare fraud cases. Attorneys that know the ins and outs of healthcare law can help you put together the documents you gather, analyze the data, and give you advice on how to proceed with a case. The Norman Spencer Law Group has the expertise required to handle all types of cases, especially healthcare fraud. We take on even complex issues at both the state and federal levels. If you think you have a whistleblower claim on hand, do not hesitate to contact us. 

Individuals that file a healthcare fraud claim do not have to pay and will get a share of the successful litigation. We offer free consultations, in person or online, and our representatives can meet with you virtually, no matter where you live. Call or team today!  

Every physician requires a license to practice medicine, and specific standards have to be met continuously to keep it. It takes years of training and background checks to get a medical license, and for many physicians losing it is unimaginable. However, professional misconduct, illegal activity, or even an accusation of such activities can be enough for the State Medical Board to suspend a physician’s license. 

Whether a hearing in front of the Medical Board happens because of genuine wrongdoing or an unfounded complaint, the effects can be severe for a physician’s practice and overall career. This includes suspension, probation, or revocation. State Medical Boards take such cases very seriously, and it has a wide range of options with how to handle medical license hearings.

• Suspension: A medical license suspension is when the Medical Board orders a physician to stop practicing medicine until the Board permits to do so again. 
• Probation: Probation means the Medical Board takes disciplinary action over a certain period. These actions can involve supervision by another practitioner while practicing, limit the types of procedures a physician can perform, require a physician to get more training, and even mandate medical or psychological treatment. The Medical Board also monitors the probation to make sure that its requirements are being followed. 
• Revocation: A medical license revocation is when the Medical Board withdraws a physician’s license. The physician is no longer allowed to practice medicine in that state and is the most extreme action that the State Medical Board can take. Failure to comply with a suspension or probation can also lead to license revocation.

Outside of directly affecting a medical license, the Board can also issue fines.

Causes For Board Action to Suspend a Physician’s License

There are many reasons a physician can lose their license or have it limited. While the specific causes that can result in a lost medical license vary based on state laws, common causes include:

• Unprofessional, dishonorable, or unethical workplace conduct
• Gross negligence
• Medical malpractice
• Illegally prescribing medicine 
• Fraud
• Substance abuse
• Being convicted of a crime 
• Mental or physical impairment

It is important to remember that evidence, accusations, or complaints about these actions can also happen outside the workplace. The Medical Board can also take action without a complaint being filed or in the case of a single infraction. Courts have often upheld license suspensions and revocations not as a punishment to the physician but as a way of maintaining public safety. License penalties can be punitive as well.

Requesting a Hearing Before The Medical Board

If the board chooses to suspend a medical license, they will notify the licensee via a letter. Another document will provide reasons for a suspension and any other penalties that the board decides. After receiving a suspension notification, a physician has the right to request a hearing in front of the State Medical Board. This request has to be made within 30 days, and a deadline will appear on the notification letter.

A physician can get the Board to reverse a suspension in some cases, but such outcomes are challenging to achieve. A physician can dispute the Board’s decision. In-depth evidence such as medical information, the reasoning for whatever choices they made, and any other relevant workplace documents have to be provided to do so. 

If the Board still moves to suspend a physician’s medical license, the physician can still file for an appeal. Appeals can also occur before the board but can go to a higher court and an administrative judge. Regardless of a higher court ruling, the Medical Board has the final say in suspending or revoking a license.

When a hearing or appeal is not requested, the suspension goes through, and there may be an administrative investigation into the matter to close it off.

Can a Medical License Be Reinstated?

Depending on the state and the terms of suspension or revocation, a medical license can be reinstated after particular procedures are followed. In some states, there is a waiting period before reinstatement can start. To begin the reinstatement process, a physician has to file for a reactivation application.

Based on the state, instructions to fill out the application and access to it may vary. Some states allow it to be printed online, while others send it through the mail. Secondary documents are often required to complete the reactivation application, such as proof of medical and drug education requirements. A physician trying to reinstate their license must also get professional liability insurance, and minimum coverage amounts vary by state as well.

Another hurdle to clear for reinstatement is that physicians must pass clinical skill evaluations and training programs. The amount of time that these programs take to finish depending on the state and license reinstatement can be delayed until these programs are completed. The State Medical Board can also place conditions on a returning physician’s practice, which have to be followed accordingly.

How an Experienced Attorney Can Help When Someone Tries to Suspend a Physician’s License

Defending a medical license is a complicated ordeal. Most courts end up siding with the Board’s decisions in cases of negligence or incompetence. If a physician is at risk of losing their medical license, there is no replacement for a criminal healthcare defense attorney. 

An attorney can defend you during every step of the suspension process. They can help gather documents, witnesses, documents and argue on your behalf at a Board hearing. They can help build your case for any future appeals, too. If a physician does not want to go through with a hearing or appeal, a qualified defense lawyer can advise on how to proceed.

If you are a physician facing an imminent suspension, probation, or revocation, do not hesitate to call the Norman Spencer Law Group. Our team of attorneys is committed to defending physicians, and we have the experience necessary to handle any kind of case a physician may face. Call us now to set up a free consultation. We can talk with you over the phone, ZOOM, or meet you in your state if needed.

Healthcare fraud enforcement is a top priority for the U.S. government. There are billions of dollars in programs and reimbursement measures, not to mention millions of patients and healthcare practitioners that utilize them. Because of the government’s investment in federal healthcare programs, many agencies are responsible for enforcing various aspects of fraud and abuse. One such agency is the Medicare Fraud Strike Force.

This agency is a joint effort between the Department of Justice (DOJ) the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG). The Medicare Fraud Strike Force is a team of federal, state, and local investigators using Medicare data analysis to combat Medicare fraud in critical hotspots around the country. Since 2007, areas of operation have expanded to cover regions and cities across the country, including:

• Los Angeles, California
• Detroit, Michigan
• Brooklyn, New York
• Baton Rouge and New Orleans, Louisiana
• Miami, Tampa, and Orlando, Florida
• Chicago, Illinois
• Dallas and Houston, Texas
• Washington, D.C.
•  Philadelphia, Pennsylvania
• The Appalachian Region
• The Gulf Coast

These teams only operate in the listed areas and have their specialties, but they are well-funded and represent the federal government’s willingness to investigate healthcare fraud around the country. The teams are located in areas of exceptionally high levels of Medicare fraud, and they also track emerging schemes that move from community to community. As of September 2020, the Medicare Strike Force has cumulatively uncovered over 2,300 criminal actions, led to over 3,000 indictments, and recovered over $3.8 billion.

What Do Strike Force Teams Investigate?

Strike Force teams identify and eliminate healthcare fraud, waste, and abuse. They use data analytics and local investigators to prosecute doctors, providers, and other healthcare organizations. These include: 

• Hospitals
• Medical Labs
• Pharmaceutical Companies
• Medical Equipment Manufacturers
• Home Health Agencies
• Physical Therapy Practices

Common examples of Medicare fraud include billing for services not provided, charging extra for services provided, changing billing codes to receive more Medicare reimbursements, and charging for unnecessary services. On top of fraud, Strike Force teams look into illegal prescriptions, especially opioids.

They also investigate Anti-Kickback Law violations, Stark Law violations, False Claims Act violations, Qui Tam suits, money laundering schemes, and insurance fraud. Kickbacks include exchanging anything of value in return for federally reimbursable referrals. Stark Laws prohibit referring to any entity where a practitioner’s family member has a financial interest. Qui Tam suits are a type of whistleblower suit that involves a private individual representing the government against a healthcare practice.

Billing patterns can trigger strike Force investigations picked up by federal and state investigators. These investigations could be a single practice or an ongoing one into multiple healthcare organizations. They can also result from a whistleblower claim against a healthcare company or practitioner or a tip provided by a patient who may have been on the receiving end of fraudulent service. 

Consequences of a Medicare Fraud Strike Force Investigation 

There are many potential consequences when a Strike Force investigation is underway. The most common penalties include criminal charges, prison sentences, fines, civil fees, and exclusion from federal programs. General Medicare fraud schemes carry hefty punishments, and those convicted of Medicare fraud can face up to 10 years in prison, as well as fines up to $250,000. These numbers increase if a fraud scheme leads to injury or death.

Accusations that fall under the False Claims Act can lead to criminal charges, prison sentences of up to five years, and fines up to $250,000. Kickback violations can net the same punishment, with the added penalty of being barred from future participation in Medicare programs and reimbursements.   

On top of criminal charges and incarceration, there are also civil fines to consider. The fine per false claim is $11,000, and the fine for each kickback is $50,000. Based on a practitioner’s alleged misconduct, the federal government can increase or add to these fines as well. Stark Law violations carry only civil penalties, but they are not small. Fines can be $15,000, with three times in payment and penalties up to $100,000 per scheme.

What to do if You Are the Target of a Medicare Fraud Strike Force Investigation

The healthcare industry is one of the most heavily regulated fields. With the vast array of laws that organizations and practitioners are subject to, on top of changing Medicare compliance requirements, healthcare companies face potential dangers at the federal and state level. Falling on the wrong side of these regulatory bodies can damage a healthcare company for years to come.

Suppose you are a doctor, healthcare provider, or any other healthcare group or company facing allegations that could lead to a Strike Force investigation. In that case, your first step should be to get in touch with healthcare defense attorneys immediately. A healthcare defense attorney can help make sure that you understand what is involved in your particular case and gather any documents and witnesses you may need to defend yourself. 

At Norman Spencer Law Group, we have experience in healthcare fraud defense that you can rely on. Our team has handled various healthcare defense cases, and we have in-depth knowledge of healthcare law to help you navigate a Medicare Fraud Strike Force investigation. Call us to set up a free consultation and go over your options. We can have a team member meet with you over the phone, on ZOOM, no matter where you are located. 

If the act of producing documents will amount to testimony about the presence and location of potentially incriminating evidence, a grand jury witness could invoke the Fifth Amendment right against producing documents. It’s called the “act of creation privilege”.

However, if the government is already aware of the documents’ presence and position, the act of production lacks a testimonial component, and the witness is unable to invoke the Fifth Amendment. A witness must prove both (1) evidence and (2) compulsion to claim a Fifth Amendment right against record production. The Fifth Amendment protects you from being forced to testify against yourself, which is why both testimony and compulsion are needed.

How Does Taking the Fifth Amendment Work?

The witness must first describe the evidence in question. A document may be the equivalent of testimony in one of two ways: (a) the document itself may be the equivalent of testimony, or (b) the process of making it may be the equivalent of testimony. Also, there are two ways to compel a document. It is possible to force the witness to (a) make it, or (b) create it.

If the witness argues that the document itself is evidence, he or she must show that the document was produced under duress. If a document was produced willingly, or in response to a regulatory requirement, such as a tax return, it is not compelled.

The Supreme Court has ruled that the Fifth Amendment cannot be used to prevent compliance with a regulatory system, such as tax laws, that was enacted for a reason unrelated to the enforcement of the country’s criminal laws. A witness cannot object to the production of a document simply because it is self-incriminating whether it was made willingly prior to the subpoena or was made pursuant to a regulatory requirement.

When Does it Apply?

For the Fifth Amendment to apply, there must be coercion in the creation if there is no compulsion in the making. If the witness argues that producing the document is the same as giving evidence, he or she must clarify the testimonial aspects of the development.

When the government did not know the presence and location of particular incriminating records, and the witness, by producing the documents, effectively testified about their existence and location, the Supreme Court held that development has testimonial aspects. Here are two examples of the problem when generating documents is equal to testimony. The Supreme Court ruled in Fisher v. United States that creation did not equate to testimony but it also ruled in United States v. Hubbell that it did.

The government was aware of the presence and location of potentially incriminating records in Fisher. The government was aware of the existence of working papers prepared by the taxpayers’ accountants, as well as their position, which was with the taxpayers’ lawyers. The government then presented the lawyers with a summons for their appearance. The taxpayers’ assertion of Fifth Amendment protection was rejected by the Court, which ruled that the “life and position of the papers are a foregone conclusion” and that “the taxpayer contributes little or nothing to the sum total of the Government’s knowledge by conceding that he in fact has the papers.”

Has the Fifth Amendment Ever Been Breached?

In Hubbell, on the other hand, the witness contributed a great deal to the government’s knowledge by delivering the letters. The government served a subpoena in Hubbell, requiring the submission of records before a grand jury. The witness invoked his Fifth Amendment right to remain silent in the face of self-incrimination. As a result, the government granted immunity to the witness, who then released the papers. The government then used details taken from the records to prosecute the witness, and the Fifth Amendment was breached, according to the Court.

In comparison to Fisher, Hubbel’s prosecutor had no knowledge of the existence or location of incriminating records, and reacting to the subpoena was “akin to answering a series of interrogatories requesting a witness to reveal the existence and location of specific documents fitting those broad descriptions.”

The most important issue in production proceedings, according to both rulings, is whether the prosecutor was aware of the presence and location of incriminating records prior to the subpoena. The witness would not be allowed to use the Fifth Amendment right against development if the prosecutor is aware, but if not, the witness can assert the Fifth Amendment.

The Supreme Court held in Hubbell that the government bears the burden of proof on this crucial issue: whether the prosecutor knew. The government argued in Hubbell that respondents had to prove a substantial connection between the coerced testimonial contact and some part of the evidence used in the investigation or at trial. The government’s claim was dismissed by the Court, which ruled that the government could prove that its testimony came from sources completely apart from the immunized correspondence. In Hubbell, the prosecution acknowledged its lack of prior knowledge as well as its unauthorized use of the records.

Document Production by Corporate Officers or Corporations

Corporations and other collective organizations, such as unions and partnerships, are not covered by the Fifth Amendment, according to the collective entity doctrine. Only their officers and employees may work on behalf of these companies and other collective bodies. According to the doctrine, workers and officers cannot assert the Fifth Amendment right on behalf of the company. The doctrine applies regardless of the size of the company or relationship. Due to the collection agency doctrine, a company’s right to assert the Fifth Amendment protection is solely contingent on its organizational structure.

If a company wishes to incorporate or form a relationship, it would be unable to assert the Fifth Amendment later. If it wishes to form as a sole proprietorship, however, its owner may claim Fifth Amendment protection. As a result, the application of the Fifth Amendment would depend on the nature of the business enterprise, which is generally made without regard for the Fifth Amendment.

Fifth Amendment Privileges

A corporate custodian of documents cannot object to a grand jury subpoena for corporate records by citing the Fifth Amendment right on behalf of the company because the corporation has no Fifth Amendment privilege.

Also, a corporate custodian cannot refuse a subpoena for corporate documents by claiming his or her own Fifth Amendment right. Even if the records would incriminate the individual and the custodian is the sole shareholder, the custodian cannot object to the creation of corporate records. Since the custodian keeps the corporate records in a representative, not a personal capacity, the custodian cannot claim personal privilege.

If you have been subpoenaed by the federal government, speak to nationwide federal criminal attorneys at Norman Spencer PC today to protect your rights!

Every year thousands of health care providers from all industries become targets of government investigators. Our firm, Norman Spencer Law Group has been defending physicians, PTs, pharmacies, medical groups, nursing agencies, home health agencies, durable medical equipment suppliers, laboratories, therapists, billing services, and many others for years.

We provide advice for the healthcare professionals whose employees come in contact with government investigators. If you train your employees to follow them and remember to follow them yourself, the outcome of your case will be much better. Contact us as soon as you believe you may be under a government investigation.

What to Do When a Government Investigators Contact You or Your Employees

There are many ways you may find out about a government investigation. You can get a call or a visit, usually without any prior notice. The investigators may visit you or your employees at home or work and start asking questions.

This is a perilous situation and you must be prepared for it. We recommend that you provide cooperation, however, it is even more important to protect your rights and the rights of your employees. At this time you do not know what is really happening and you should assume that there is an active investigation is in progress. Your job is to minimize any potential liability. The best way to do this is to contact an experienced defense lawyer such as the one you will find at Norman Spencer Law Group.

Train Your Employees

If you have employees, it is important that you train them to deal with government agents. Of course, the level and the scope of this training depending on the size of the practice of the business. Larger entities should have a Government Investigation Procedure Policy. If you are a smaller business, something less formal should be enough. Norman Spencer Law Group can assist you in both drafting the Investigation Policy and educating your employees on-site.

Avoid Obstructing Government Investigators

This is very important. You should not do anything the government could see as obstructing their investigation. In larger entities, employees should be trained to report any government interactions to a designated person. This could be the compliance officer or another supervisor. In smaller settings, the employee should report to the owner, the manager or the supervisor. Please remember that you are not allowed to tell your employees not to talk to investigators. This may be considered obstructing justice or witness tampering.

Follow These Basic Rules

To make it easier, these are the basic rules we recommend employees to follow (this also applies to anyone contacted by government investigators):

• Train employees to be polite and cooperative. Tell them that they are not required to speak with investigators. They are not required to make any statements without consulting with a lawyer first. If they do volunteer information, they can stop speaking at any time. Of course, this applies to you, too!
• You should also tell them that if they refuse to speak with the investigators, the government could potentially subpoena them. However, they would still have the right and the opportunity to seek legal advice. The Fifth Amendment protection will be a useful tool at that time!

Always Speak to a Lawyer First

No one should ever lie to government investigators. That would make the situation worse and could subject you and your employees to criminal prosecution. Always stress to your employees that they have a right to a lawyer at all times and that should always consider speaking to a lawyer before agreeing to an interview – for their own protection.

Of course, legal services cost money and may be expensive. Many employees may not be able to afford an attorney or may not be necessarily willing to hire one even if they could afford it. Some employers may even pay for the legal services in this situation. The lawyer, of course, will only represent the employee, to avoid any conflict of interests.

The point to take away is this: anyone who agrees to be interviewed by government agents before speaking to a lawyer only has himself or herself to blame for the consequences.

Obtain Information From the Government Investigators

Always ask the agent for basic information such as the one that appears on a business card. You want to know their names, titles, the agency they work for, and the contact information. Ask them for the reason for wanting to speak with the employee (or you). Don’t expect them to share anything detailed, but this could provide some useful information for the attorney when you reach out to one.

Call the Compliance Officer or Lawyer Immediately

Instruct your employees to immediately call the compliance officer (or whoever is the designated person for this in the business) and an attorney. Make sure that the records and documents do not get destroyed when you know there is an investigation. Following these rules can save you and your employees a lot of problems down the road.

Remember to always be polite to the agents, take their business cards, and tell them that your lawyer will call them shortly. Train your employees to follow these steps. Then call our office to speak with one of our healthcare defense lawyers.

How Norman Spencer Law Group Can Help You

We are a team of experienced criminal defense attorneys who have handled hundreds upon hundreds of healthcare fraud and compliance investigations. No matter where you are, we can help you as we helped countless others over the years.

If you retain us early in the case, hopefully before you volunteer any information, we can work quickly to protect you and mitigate any potential liability you and your business may have.

It only takes one phone call to speak with a lawyer and get the best service you can get.