What Happens When a Civil Case Turns Criminal?August 26, 2021, 08:51 AM
It is a common fear for attorneys: an otherwise civil case is marching along when suddenly information comes to light that could spell criminal trouble for the client. At this point, what are the next steps? Surely the client needs to be advised, but how? Is it an overreaction to revise the case evaluation – which previously discussed only financial consequences as a worst-case result – to lay out the possibility of criminal charges or even jail time?!
If this scenario unfolds in your civil case, it is in both your and the client’s interest to involve an attorney equipped to advise regarding potential criminal matters. For attorneys who lack significant experience navigating criminal codes and sentencing guidelines, or do not have relationships with prosecutors and law enforcement agencies, it can be daunting to advise a civil client of potential criminal exposure. The unforeseen criminal offshoots that may underlie a civil matter can include tax concerns, financial fraud, computer crimes, corporate misconduct, vehicular death, drug issues, or sexual offense allegations and a criminal attorney with experience in state and federal court should be consulted.
The same way an expert might be called in to help with a specific area of civil litigation, the ability to rely on an attorney with a wealth of criminal law experience can help avoid pitfalls that could increase civil liability or even result in criminal prosecution. The attorney themselves could inadvertently end up in hot water due to mismanagement of a case when dealing with prosecutors and investigators. Both the client and the civil attorney gain significant peace of mind by involving an experienced criminal attorney to advise when criminal issues arise.
In some instances, the worry of potential criminal charges in an otherwise civil case may be overblown. There is still value in a white-collar or criminal attorney investigating and preparing an advisory memo outlining the potential risks based on experience defending criminal cases. In other situations, the possibility of criminal charges is very real and an experienced criminal defense attorney becomes immediately necessary. The following questions are frequently asked by civil attorneys unexpectedly dealing with a criminal issue:
Can an attorney get in criminal trouble for helping a client?
Potentially yes, if a case is handled inappropriately. Attorneys that fail to identify criminal issues and assist a client in achieving a goal that runs afoul of the law could find themselves subject to a criminal investigation. Additionally, aggressive defense tactics that may be successful in the civil context may result in unexpected problems when employed during a criminal case or criminal investigation.
The lawsuit alleges (perhaps falsely) that my client engaged in criminal conduct. Will he or she be charged criminally?
It depends. There may be instances where allegations of illegal conduct carry little risk of criminal investigation or prosecution. In other situations, civil counsel would be wise to take the threat seriously. Especially without a frame of reference for the factual scenarios that law enforcement and prosecutors commonly charge, it can be hard for a lawyer who does not practice in this area to accurately identify the risk. Be advised that in North Carolina and Virginia, there is no statute of limitations for felony charges. The credibility of criminal allegations is going to be reviewed by law enforcement and/or a prosecutor. Having a criminal attorney as part of the litigation team to be part of that review process can be influential.
What should my civil client do at a deposition when there is potential criminal exposure?
Our attorneys with white collar and criminal experience have helped identify when a civil litigant could potentially face criminal charges and helped prepare a strategy for depositions and trial. Often, it becomes necessary to advise a client when and how to properly exercise their Fifth Amendment protection against self-incrimination. In other instances, communicating with prosecutors or investigators in an effort to avoid or contain criminal charges may be required.
What if the response to a criminal problem jeopardizes the civil case?
This may be the number one reason to involve a criminal attorney who can help assess the specific risks of the potential criminal exposure. It is only with the most information that an informed decision about how to handle the case with the client’s best interest in mind, balancing the unique interplay between the civil and criminal arenas. Sensitivity should be exercised to avoid needless interference with the ongoing representation or client relationship, while also ensuring ethical and effective representation.
Whatever the situation, it is advantageous to involve a criminal attorney to help advise and defend when criminal issues arise in a civil case. While limiting liability and damages are generally the goals when defending civil cases, the worst-case scenario is to unintentionally put a client (or yourself!) in a position where they have been criminally charged and face the possibility of prison time.