By Sharon Krevor-Weisbaum, Kobie A. Flowers, & Anthony J. May
For lawyers and non-lawyers alike, subpoenas can be scary. Being served brings with it a whole host of questions: Did I do something wrong? Am I in trouble? Will I have to close my business’s doors? What do I do next?
Subpoenas are legal documents that carry with them the full force of the law. Any number of negative consequences can happen if you bury your head in the sand and ignore them, including license suspensions, monetary penalties, and further sleepless nights. The anxiety induced by a subpoena can be further exacerbated when it is served by a regulatory agency, and particularly ones that control a person’s professional or business license. Many clients come to our firm asking what to do if they receive an administrative subpoena from such agencies, including the Maryland Medicaid Fraud Control Unit or professional licensing boards like the Maryland Board of Physicians.
If you or someone you know has found yourself in this position, you are not alone. Luckily, our lawyers have helped numerous clients in navigating the regulatory subpoena minefield. Here are the top 3 things to keep in mind.
1. Don’t Panic!
Regulatory subpoenas typically ask the recipient to appear and provide testimony or to gather and produce certain documents. Rarely do these legal documents provide an explanation for why or what happens if you don’t comply. This can quickly lead the recipient spiraling into doomsday mode and preparing for the worst.
Taking a deep breath, remaining calm, and forming a game plan can help you keep your wits about you as you figure out the best course of action. In many cases, the subpoenas may not even be about you! Administrative agencies may subpoena records in your possession that are totally unrelated to anything you or your business have personally done, but instead to investigate complaints or grievances filed against others.
Conversely, perhaps you (or your professional license) or your business are the target of an investigation. If that’s the case, the best defense is a good offense. To do that, you need to think logically about how to form an appropriate response. For that, representation by experienced counsel is key.
2. Get Counsel.
Engage an attorney with experience dealing with administrative agencies. These attorneys “know the ropes” and have likely worked with the agencies in the past. An attorney can work with the agency to determine the scope and purpose of the subpoena, assess whether you or someone else is the target of the investigation, and help you better understand your rights and responsibilities.
For example, a subpoena may ask that you prepare and produce certain documents. The documents in your possession could be medical records, which have a whole host of legal protections to maintain an individual’s privacy, a breach of which could subject you to civil—or even criminal—penalties. Consulting with an attorney is critical to properly complying with the subpoena while insulating you from liability for an improper disclosure.
A subpoena may also command your appearance to testify before an administrative agency. For folks who maintain professional licenses, this testimony can directly impact your career and livelihood or worse, implicate your Fifth Amendment protection against self-incrimination. See Ohio v. Reiner, 532 U.S. 17 (2001) (holding that a person’s Fifth Amendment privilege against self-incrimination applies where a witness’s answers “could reasonably ‘furnish a link in the chain of evidence’” against him). Counsel is essential to guide you through these proceedings and protect you from civil or criminal liability. In some instances, your counsel will have an opportunity to ask you a question which would help clarify your response. Working with an attorney can ensure that your story is told in the most effective way and to avoid making statements that might later come back to haunt you.
3. Be Responsive and Patient.
It is always in your or your business’s best interest to work collaboratively with the agency issuing the subpoena, and there is no one right way to respond. Every agency has their own protocols for issuing subpoenas and gathering information. Your attorney plays a pivotal role in coordinating with the agency to provide it the information it needs on a timeline that is reasonable for you. The attorney can also help to limit the scope and format of the information produced to avoid undue financial burden on you or your business.
Finally, patience is not only a virtue, but also a necessity. It is not uncommon for someone to respond to a subpoena and then hear nothing from the agency for months, years, or, in some instances, ever again. Understandably, there can be suffering in the silence. Take care in knowing that, in many instances, no news is good news. Maintaining a positive outlook and conducting business as usual will help get you through the process. And keeping an open line of communication with your counsel will help to prepare for any future proceedings or issues that may arise.