The Attorney General issued a policy statement on January 30, 2012, to update and further strengthen the Department's longstanding policy that Department prosecutors and civil attorneys handling white collar matters should timely communicate, coordinate, and cooperate with one another and with agency attorneys to the fullest extent appropriate to the case and permissible by law, whenever an alleged offense or violation of federal law gives rise to the potential for criminal, civil, regulatory, and/or agency administrative parallel (simultaneous or successive) proceedings.
Every United States Attorney's Office and Department litigating component should have policies and procedures for early and appropriate coordination of the government's criminal, civil, regulatory, and administrative remedies. Such policies and procedures should stress early, effective, and regular communication between criminal, civil, and agency attorneys to the fullest extent appropriate to the case and permissible by law, and should specifically address the following issues, at a minimum:
- Intake: From the moment of case intake, attorneys should consider and communicate regarding potential civil, administrative, regulatory, and criminal remedies, and explore those remedies with the investigative agents and other government personnel;
- Investigation: During the investigation, attorneys should consider investigative strategies that maximize the government's ability to share information among criminal, civil, and agency administrative teams to the fullest extent appropriate to the case and permissible by law, including the use of investigative means other than grand jury subpoenas for documents or witness testimony; and
- Resolution: At every point between case intake and final resolution (e.g., declination, indictment, settlement, plea, and sentencing), attorneys should assess the potential impact of such actions on criminal, civil, regulatory, and administrative proceedings to the extent appropriate.
In a September 9, 2015 policy statement, the Deputy Attorney General re-emphasized the importance of parallel actions to the Department’s efforts to hold accountable individuals who commit corporate malfeasance. As stated in that memorandum, early and regular communication between civil attorneys and criminal prosecutors handling corporate investigations can be crucial to our ability to effectively pursue individuals in these matters. Consultation between the Department’s civil and criminal attorneys, together with agency attorneys, permits consideration of the fullest range of the government’s potential remedies and promotes the most thorough and appropriate resolution in each case. Criminal attorneys handling corporate investigations should notify civil attorneys as early as permissible of conduct that might give rise to potential individual civil liability, even if criminal liability continues to be sought. Further, if there is a decision not to pursue a criminal action against an individual – due to questions of intent or burden of proof, for example – criminal attorneys should confer with their civil counterparts so that the civil attorneys may make an assessment under applicable civil statutes. Likewise, if civil attorneys believe that an individual identified in the course of their corporate investigation should be subject to a criminal inquiry, that matter should promptly be referred to criminal prosecutors, regardless of the current status of the civil corporate investigation. Department attorneys should be alert for circumstances where concurrent criminal and civil investigations of individual misconduct should be pursued. Coordination in this regard should happen early, even if it is not certain that a civil or criminal disposition will be the end result for the individuals or the company. While parallel proceedings must be handled carefully in order to avoid allegations of improper release of grand jury material or abuse of civil process, when conducted properly, they can complement one another and serve the best interests of law enforcement and the public.
These recommendations should be followed to the fullest extent appropriate and permissible by law. There may be instances, however, in which the secrecy of an investigation is paramount to the success of the investigation and compliance with the above-described policies may be impractical.
The Attorney General has directed the Office of Legal Education, in consultation with the U.S. Attorneys' offices, the Civil Division, the Criminal Division, and other Department litigating divisions, to facilitate the provision of instruction and training materials on parallel proceedings.
The full text of the Attorney General's memorandum can be found at: Organization and Functions Manual 27. The full text of the Deputy Attorney General’s memorandum can be found at: Organization and Functions Manual 31.