There is an alarming trend towards aggressive investigations by state and federal authorities on physicians. Whether it is by the state medical boards, DEA or federal or state prosecutors, doctors’ practices are subjected to heightened scrutiny. While this may be traced to the war on drugs, recent deaths related to the abuse of prescription opioids, and the criticism the DEA has faced for its failure to develop measureable results in its enforcement efforts; the genesis is less important than the trend itself for those subjected to the harsh spotlight of scrutiny.

Under the standard that a physician is guilty of criminal conduct if he or she prescribes without “a legitimate medical purpose” and “outside the usual course of his or her professional practice,” many good, decent, over-worked physicians find themselves fighting to keep their licenses, DEA registrations and freedom. This is particularly true for those brave souls who continue to help patients with chronic, non-cancer pain.

The law enforcement climate surrounding prescribing opioids has resulted in many good physicians abandoning that aspect of their practice and patients. This has had the effect of reducing the number of physicians willing to treat those in chronic pain, while increasing the scrutiny on those who continue to do so. Those physicians now have become a limited pool of targets for law enforcement and regulatory agencies.

Most alarming is the increasing number of criminal investigations using undercover agents pretending to be patients with chronic pain. These covert operations may be run independently, or in conjunction with the medical board and DEA administrative authorities. These investigations may be initiated by a complaint from a pharmacy about the number of prescriptions by a particular doctor, a complaint by a patient or the patient’s insurer, a check with the Prescription Monitoring Program revealing a larger number of opioid prescriptions, or a motor vehicle stop of patients that are interviewed about their medications. With little more than a suspicion that the physician may be over-prescribing, a full-fledged undercover operation could be launched.

Should the undercover operation reveal certain conduct or actions that appear inconsistent with law enforcement’s view of normal medical practice, the physician and her office may be subjected to a search warrant, seizure of medical records and computers, administrative or grand jury subpoenas for medical records and testimony, and the entire staff may be interviewed and treated like co-conspirators. The devastating effects of such actions can result in severe economic and reputational losses to the medical practice.

The dangers faced by the physician require immediate retention of experienced, skilled defense counsel to represent and protect their interests. The dilemma faced by the physician may come down to fighting to keep her DEA registration and ability to prescribe Schedule II-V drugs, protecting her medical license or potentially waiving her Fifth Amendment right to remain silent in a criminal investigation. These “parallel investigations” – criminal and administrative at the same time – often present a Hobson’s choice of actively defending one’s medical license by producing documents and testimony, or protecting one’s freedom and not testifying until the full scope and breathe of the criminal investigation is known. Only experienced criminal defense counsel can competently analyze the situation and offer advice about how to proceed. Every licensed professional must worry about their ability to continue in their chosen field, however, the first and foremost concern must be for one’s liberty. Although the instinct is understandable, rushing to defend the administrative action, while a parallel criminal investigation is on-going, may lead to disastrous results.

The dichotomy is straightforward. Physicians are trained to listen to their patients, rely in great part on their self-reporting of their conditions and pain, and to establish a relationship of trust. Law enforcement and regulatory bodies turn that relationship on its head and undermine what is a “legitimate medical purpose.” They hold physicians to a heightened standard of verification and a view that pain patients lie and deceive to obtain the medications for their own addictions or for diversion. Given this dichotomy, is it any wonder that physicians face increasing peril in their practices?

The attorneys at Stahl Gasiorowski Criminal Defense have decades of experience representing physicians, dentists and other medical professionals in federal and state criminal and administrative investigations. If retained early in the investigation, our goal is to prevent criminal charges from being pursued or filed, and to protect the license and registration of the healthcare professional.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.

But the same danger can exist in a civil context when government agencies or regulators engage in so-called “parallel investigations.” Today, speaking with civil regulators without first consulting a defense attorney who understands how prosecutors can be involved in or use information collected in a civil investigation can lead to criminal indictment and conviction.

The New York Times recently reported on a parallel investigation that resulted in not just one, but two criminal indictments that blindsided a young lawyer. Unfortunately, and ironically, the lawyer had not first consulted a criminal defense attorney before he willingly spoke with the SEC, apparently assuming he was only a fact witness.

Law School, Clerkships, Indictment

After leaving his business relationship manager position at Dewey & LeBoeuf LLP (“Dewey”), the young man graduated magna cum laude from Georgetown Law School, clerked for a U.S. District Court, now clerks for a federal appeals court, and has received an offer of employment from a prestigious national law firm.

The twice-indicted lawyer first had spoken with Manhattan District Attorney prosecutors who were looking into defunct Dewey’s finances, assuming he simply was providing background information about the bankrupt law firm. But later in the year, he willingly accepted an SEC invitation, traveling to Washington, D.C. as the administrative agency investigated a Dewey bond offering that transpired after he left the law firm.

Before the second, SEC interview the young lawyer failed to object when asked if the Manhattan DA prosecutors with whom he already had spoken could “sit in.” The result was a surprise indictment for scheming to defraud and another for six alleged false accounting entries. He started out believing he was helping a civil agency and eventually was skewered in a parallel investigation.

Even If It Doesn’t Appear to Involve Criminal Conduct

With ever-expanding federal and state governments reaching into areas of the law or cases that may not appear to involve criminal conduct, it is equally imperative that a person speak with experienced counsel before deciding to talk with law enforcement or any regulatory body. As we have seen in this case, SEC, FDA, FCC, IRS and other “administrative or civil” inquiries can often open the door to criminal investigators.

Administrative agencies’ jurisdiction over certain types of transactions or licensed professionals can trigger parallel investigations. Too often those contacted by regulators assume there is neither harm nor exposure by speaking with such agencies, believing they would appear suspicious if they brought counsel with them. On the contrary, state and especially federal government expansive interpretations of fraud, fiduciary duty, duty to disclose and money laundering compel a prudent person to consult with counsel prior to any discussions with these types of agencies.

How It Can Happen

Laws have become so complex that attorneys must be current on all potential scenarios that turn civil inquiries into parallel criminal investigations. For example, physicians and dentists who waive co-pays from patients so they may afford proper care can easily be exposed to potential criminal violations once they submit those claims to private insurers or Medicare.

Criminal and civil securities violations may be lodged against individuals for revealing confidential or protected work product. They may inadvertently reveal information that someone uses to trade on the company’s stock. If the information is material and non-public, the employee can be charged with securities violations resulting in potential jail time, forfeiture and fines.

Physicians and other healthcare professionals may be exposed to criminal violations if they accept monies, equipment or services from certain individuals or vendors. The list is seemingly endless and case law is ever-expanding the reach of federal and state prosecutors.

Before You “Help” or “Assist” in an Inquiry

Anyone asked by a government agency to “help” or “assist” in an inquiry would be wise to consult first with experienced criminal defense counsel to fully protect his or her rights. If an agent shows up at your home or office, or calls you, and asks to speak with you, the best response is to say that you would be glad to help, but first must consult with your attorney.

Too often clients from a broad range of industries and professional sectors who come to our offices have told us they “only spoke to the agents for a few minutes.” But many of those “brief” encounters turn out to be much longer and more substantial than the person remembers. They often lead to the person being charged with a crime based upon his or her own words, sometimes a charge of lying to a federal agent.

The best and most cautious approach is to decline to speak, get the business cards of agents who approach you, or complete contact for someone who calls, and then contact an experienced criminal defense attorney immediately.

Contacting a defense attorney first may prevent or avoid charges.

Unfortunately, the young lawyer in trying to help may have “represented himself” into two totally unexpected indictments.