The scenario is a familiar one to lawyers practicing in maritime and admiralty law—a frantic middle-of-thenight call, a shipboard emergency, and your client looking to you for answers in a high-stakes scenario that could amount to the beginning of a very bad day. It is in the critical moments that follow during which government and private counsel may come into contact with the other, and those moments may to some extent define the course of the investigation. Depending on the precise incident, private counsel may find themselves inundated with multiple federal or state agencies, dealing with a litany of acronyms and governmental procedures. On the other hand, government counsel may be called to interact directly with private counsel while not fully understanding the private attorney’s motivations in representing their client. Regardless of the incident, there is potential for a language and cultural barrier when parties interact while serving respective clients during a maritime investigation, and counsel are at a disadvantage if they have not taken initial steps to understand the other side’s driving factors and authoritative processes before the initial interaction.
In order to help bridge this gap, the Admiralty and Maritime Law Committee (“AMLC”) recently launched a Government Relations Initiative, an informal relationship-building effort aimed at practicing attorneys and law students. The purpose of this initiative is to foster interaction and cultivate professional relationships between private and government attorneys in collegial environments that provide a mutually beneficial opportunity for professional development and academic collaboration.
On December 1, 2016, the AMLC Government Relations Initiative hosted its inaugural panel presentation, “Best Practices in Maritime Investigations,” at the United States District Court for the Eastern District of Louisiana. The Admiralty Law Section of the Federal Bar Association co-sponsored the event, which brought together a number of experienced government and private practice lawyers to offer their unique perspectives. Panelists included Sean Pribyl, Blank Rome’s; Emily K. Greenfield, Assistant United States Attorney, Eastern District of Louisiana; CDR Brian McNamara, Deputy Staff Judge Advocate, Eighth Coast Guard District; LCDR Damian Yemma, Attorney Advisor, Coast Guard Investigations National Center of Expertise; and Dee Taylor, defense attorney. Laura BeckKnoll served as the moderator.
The hour-and-a-half CLE program instructed
the audience on a wide range of practical and
informative topics. Below is a “top 10” list of just some of the numerous issues covered during the presentations and subsequent Q&A session:
- Private counsel should understand the steps for quickly identifying the scope of potential government investigations and the varied agencies with possible involvement, as in some cases state and federal agencies may initiate joint, parallel, or concurrent investigations.
- The U.S. Coast Guard (“USCG”) and Department of Justice (“DOJ”) offered perspectives on dealing with marine casualties and environmental crimes within the criminal referral system, including the impact of recent Fifth Circuit rulings on DOJ charging decisions.
- The government has a recurring focus on prosecutions related to falsified documents, false statements, and obstruction at every level during an inspection and investigation.
- Being an obstructionist may not be the best course of action to cast your client in a positive light and make an investigation go smoothly.
- Counsel should weigh the benefit of seeking resolution pre-indictment in environmental crimes cases.
- When negotiating security for environmental crimes, private counsel should understand which government agency is involved at each stage and the rationale for the security agreements.
- Criminal risk during maritime incidents and investigations requires the specialized skill set of criminal lawyers as opposed to civil lawyers.
- When dealing with USCG designations of Party-In-Interest status during marine casualty investigations, private counsel should be proactive when requesting such status for a client.
- Owners and operators should understand the interaction and processes with whistleblowers, and DOJ presented views on why maintaining whistleblower protections matters.
- Private counsel have ongoing concerns with pre-criminal investigation mariner statements and “rights” advisements, specifically when and how they should be given if an inspection or investigation has the potential of becoming a criminal matter.
Overall, the panel represented a diversity of views and legal backgrounds in a collegial forum that assisted practitioners in becoming more proficient in their dealings with maritime investigations. Ideally, this panel will lead to similar follow-on opportunities across various AMLC regions in conjunction with local bar associations and their corresponding federal, state, and local government agencies, including additional potential participants from agencies such as the National Transportation Safety Board, Customs and Border Protection, Environmental Protection Agency, Maritime Administration, and the National Oceanic and Atmospheric Administration.
Stakeholders with additional questions on this panel and/or suggestions for future panels are invited to contact Blank Rome Associate Sean T. Pribyl (AMLC Vice-Chair Government Relations Initiative) directly at SPribyl@BlankRome.com or 202.772.5852.
An earlier version of this article appeared in the American Bar Association Tort Trial and Insurance Practice Section’s Winter 2017 Admiralty and Maritime Law Committee Newsletter. Reprinted with permission.