Understanding the Department of Justice’s New Self-Disclosure Pilot Program
On April 15, 2024, the Department of Justice’s Criminal Division announced a new “Pilot Program on Voluntary Self-Disclosures for Individuals.” This program offers individuals involved in corporate wrongdoing an opportunity to avoid prosecution by voluntarily disclosing information and cooperating with the authorities. However, it is essential to examine the program’s intricacies and potential implications for defense attorneys and their clients.
https://www.justice.gov/media/1347991/dl?inline.
The pilot program aims to incentivize individuals to report corporate misconduct by offering non-prosecution agreements (NPAs) to those who come forward early and provide full cooperation. While the program covers a broad range of white-collar offenses, it is limited to certain types of violations, such as violations related to the integrity of financial markets, FCPA, healthcare fraud and similar financial crimes.
The eligibility criteria for obtaining an NPA are stringent. Similar to a whistleblower in a False Claims Act case, to qualify, an individual must be the first to disclose the information, provide “original” information not already known to the DOJ, and be willing to fully cooperate and implicate others involved in the wrongdoing. Furthermore, the program excludes individuals who were the masterminds, CEOs, or those with a criminal history.
Considerations for Defense Attorneys:
Navigating this new landscape requires careful consideration and strategic decision-making by defense attorneys. The following key points should be kept in mind:
1. Early Eligibility Assessment: It is crucial to evaluate a client’s eligibility for the program at the outset. If the client has a history of criminal activity or played a central role in the misconduct, pursuing an NPA may not be a viable option.
2. Emphasis on Full Disclosure: If a client is eligible and chooses to cooperate, they must understand the importance of providing complete and truthful information. Any attempts to withhold information or provide misleading statements can jeopardize the client’s chances of obtaining an NPA.
3. Managing Client Expectations: Defense attorneys should ensure that their clients have realistic expectations regarding the program. While the DOJ offers the possibility of an NPA, it retains discretion in granting such agreements and will weigh the value of the client’s cooperation against its own priorities. Importantly, participants must also agree to forfeit any profits derived from their criminal activities and provide restitution or compensation to victims.
4. Exploring Alternative Options: It is important to consider alternative avenues, such as cooperation agreements with your local U.S. Attorney’s Office. Depending on the specific circumstances of the case, more traditional options may prove more advantageous for the client than pursuing an NPA requiring DOJ approval.
Conclusion:
The Department of Justice’s Pilot Program on Voluntary Self-Disclosures for Individuals presents a complex landscape for defense attorneys and their clients. While the program offers potential benefits for individuals who meet the eligibility criteria and provide full cooperation, it is essential to approach it with caution and a thorough understanding of its implications. Defense attorneys must prioritize their clients’ interests and provide guidance to help them make informed decisions.
