Justice Manual § 1-12.000

Every United States Attorney’s Office and Department litigating component should have policies and procedures for 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 potential civil, administrative, regulatory, and criminal remedies, and discuss 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, 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.

Parallel actions are important to the Department’s efforts to hold accountable individuals who commit corporate malfeasance. 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. 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 circumstances in which parallel proceedings are impractical, such as where the secrecy of an investigation is paramount to its success. Attorneys should handle such cases in the manner most appropriate to the applicable facts and circumstances.