The Do’s and Don’ts of Contact with a Government Agent

There is a real risk that one of your employees – or maybe even an independent contractor or vendor – will get contacted by a government agent and not know how to react.

While we have covered this a number of times in the past, I bet it has been at least a year, and one of the things I’ve learned is that even if you train people on how they should react if contacted by a government agent, at least half of them will completely fail to follow the training. There are many reasons for this.

First, it’s scary when someone with a gun shows up at your door. But increasingly, such visits happen by phone. It isn’t always fear that louses up the response. Sometimes people just weren’t paying attention to your training. Or their natural desire not to disappoint those in positions of authority overcomes the training.

But whatever the reason, I can assure you that it’s worth taking a few minutes to refresh everyone’s recollections on interacting with government agents.

The first lesson is quite important – and quite awkward. Everyone needs to understand that it is necessary to authenticate the identity of the agent. This isn’t always easy. The only way I know to verify that a U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) agent is really an agent is by talking to another OIG agent. If they appear in person, and they present a badge, that’s pretty persuasive. If you get an email and it is from oig.hhs.gov, that is also helpful. But remember that people can spoof both phone numbers and email addresses. Type the address in, rather than simply replying, and make sure that the domain is oig.hhs.gov. It’s common for scammers to get an email domain that’s very close to a real one, something like throwing in an extra “h” or using “.com” instead of “.gov.” Don’t assume that the person reaching out to you is who they say they are. That alone is a good reason not to provide any information in the initial contact. A good agent will understand your reluctance and work with you to verify their legitimacy.  

Next, unless you’re a licensed professional and the person contacting you is from a licensing board, there’s no duty to speak with the agent. Someone can choose to talk, but it isn’t a requirement. Absent a subpoena or civil investigative demand, it’s not required that you provide documents, and even then, the documents don’t have to be produced that second. The only thing that allows agents to grab things immediately is a search warrant.

While I often agree to provide the government documents without a subpoena or warrant, I would be frustrated if a client provided information without checking with me first.  

While you aren’t required to talk to an agent, if you choose to, you absolutely must tell the truth. Any misstatement to a government agent can give rise to a felony charge for lying to a government agent.  

Similarly, and very counterintuitively, talking with other folks about what you plan to tell the government agent can potentially be characterized as obstruction. I strongly discourage anyone from discussing contact with a government agent with anyone other than their legal team.

Finally, everyone has the absolute right to tell legal about contact from a government agent. Agents will sometimes say things like “we’d really appreciate it if you didn’t tell anyone I was here.” Or “it’s imperative that you keep this communication confidential.”

But you are legally free to shout from the rooftops that a government agent spoke with you. I’m not encouraging you to do so, but you have that right. And you also have the right (and I believe it is wise) to talk with your company’s legal counsel anytime you’ve heard from someone in the government.  

Contact from an agent is almost always shocking. But with proper training, people will react in a way that will prevent the contact from a real agent, or an imposter, from hurting your organization.