The fear of criminal prosecution is present for every in-house counsel. It may be just a flicker of caution that informs the most routine day-to-day advice in-house lawyers provide. Or it may be a sense of dread that kicks up when scanning headlines of corporate executives in trouble. The simple fact is that in today's environment of greater personal accountability and popular presumption of guilt, getting sucked into a criminal investigation is possible for just about everyone.
General counsel are not typically primary targets for prosecutors--CEOs, CFOs and board members carry brighter bull's-eyes. But when the GC does fall under suspicion, it can be particularly thorny.
"General counsel have unique circumstances," Hamill says. "Often, issues related to their advice are key to the investigation. The corporation has the privilege, and the counsel may be hamstrung in his or her defense depending on whether the corporation will waive privilege."