US Bodily Injury News November 2011


Government investigators are not required to warn witnesses of their rights


Importantly, there is no requirement for investigating authorities to provide witnesses with a warning regarding their rights.


Criminal counsel’s role


When criminal counsel is engaged to assist a Member, their first job is to clearly identify and verify who he or she is representing – the owner, the technical manager, individual officers or crewmembers.


It is important that all communications with the U.S. Coast Guard and government investigators be coordinated through counsel. Normal patterns of communication do not apply.


Counsel will help secure and manage the casualty scene; issue a litigation hold for all documents and records; identify companies and/or individuals who may be subjects of the government’s investigation; engage technical consultants; evaluate the need for interpreters; identify, collect and review key documents; identify shipboard and shore side personnel to be interviewed; and begin to develop an event chronology to include events prior to the casualty, the casualty, and the post-incident events.


Unlike many civil investigations, criminal counsel will carefully select the participants in the interviews, the order of the interviews and the interview location. Counsel will be alert for a request by any crew witness for separate counsel and make it clear that corporate counsel is generally unable to represent the interests of individual employees. Counsel will generally avoid taking signed statements or recording interviews but will have interview notes which are generally protected by the attorney work product doctrine.


Counsel also needs to interact with the investigators, monitor investigation activity, and be in a position to express and protect the Member’s interests. For example, it is important to have counsel advise individual crew members of their rights before they agree to be interviewed by investigators. Further, counsel needs to establish that the company has a parallel interest in conducting its own investigation to determine the facts.


Counsel will work with the Member to structure the internal corporate investigation.The lawyer


needs access to the ship’s officers and crew and is entitled to originals or copies of documents seized by investigators.


Criminal counsel remains in close communication with prosecutors during the investigation to manage subpoena response, handle requests for cooperation by the company, and to evaluate the status of the investigation. Counsel will also communicate with other counsel in any Joint Defense Agreement to coordinate strategy, monitor new investigative developments and ensure timely notice to his client. One of the critical objectives of the internal investigation is for counsel to be in a position to develop and present a corporate “white paper” – which explains the company position – to the appropriate supervisory personnel in the Department of Justice if charges against the company are imminent. It could possibly avoid or reduce against the company.


In conclusion, it is critical for the Member to engage criminal counsel if there is any hint of facts that many lead to a criminal investigation after a significant marine casualty. Criminal counsel has a different, yet equally important, role in protecting the Member’s interests than civil counsel and the Member should always keep criminal counsel in mind when a marine casualty occurs.


For more information and a copy of the complete presentation, please contact Greg Linsin (linsin@blankrome.com)


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