Criminal exposure can arise in a variety of seemingly unrelated practice areas, and recognizing the potential risks and proactively involving a criminal attorney can better help protect your client.
The risk that a client may face criminal liability can arise in nearly every area of legal practice—even those traditionally viewed as civil or regulatory. Lawyers practicing in fields such as family law, corporate law, estate planning, employment law, and general civil litigation must be vigilant for signs that their clients' actions may cross into criminal territory. Awareness of potential criminal liability is essential not only to protect the client but also to fulfill your ethical obligations.
Overlap in Family Law Matters
In family law, potential criminal exposure can lurk in contentious matters such as custody disputes, domestic violence allegations, and financial misrepresentations. Domestic abuse—physical, emotional, or financial—can lead to criminal charges such as assault, stalking, or harassment. When such allegations surface during divorce or custody proceedings, attorneys must tread carefully, balancing civil remedies with the potential for parallel criminal investigations.
Financial misconduct is another key area of concern in domestic disputes. Spouses may attempt to hide assets during divorce proceedings, leading to accusations of fraud, perjury, or contempt of court. These actions can trigger not only civil penalties but also potential criminal charges. Family law attorneys must advise clients on the risks of misrepresenting financial disclosures or violating court orders.
Additionally, issues like child abduction in custody cases can carry severe criminal consequences under state and federal laws.
Overlap in Corporate Matters
Corporate lawyers routinely navigate regulatory landscapes that can carry potential criminal penalties. Traditional white-collar crimes such as fraud, embezzlement, securities violations, and extortion can often be rooted in the conduct of corporations or their executives.
A corporate attorney advising on compliance, mergers and acquisitions, or securities must remain vigilant for red flags that may indicate criminal conduct. For example, failure to disclose material information in financial statements or to regulatory bodies such as the SEC can constitute securities fraud. Similarly, improper payments to foreign officials may run afoul of the Foreign Corrupt Practices Act (FCPA), exposing both the client and even potentially the attorney to liability. Internal investigations, often initiated in response to whistleblower complaints, can uncover conduct that must be reported or addressed to mitigate criminal exposure.
Counsel must understand when to engage criminal defense lawyers or report misconduct to avoid complicity.
Overlap in Estate Planning Matters
Although estate planning is generally viewed as a non-adversarial area of law, criminal exposure for clients can still arise. Common issues include elder abuse, forgery, and tax evasion. Estate planners may unknowingly become involved in schemes to conceal assets, defraud the government, or exploit vulnerable individuals. Undue influence or coercion over elderly clients can result in criminal investigations, particularly if wills or trust documents are suspected to have been manipulated.
Lawyers must take care to document capacity assessments and ensure that instruments reflect the client’s true intent. In addition, estate planning often involves significant tax considerations, and overly aggressive tax avoidance schemes may cross the line into criminal tax fraud or evasion.
Overlap in Employment Law Matters
Employment law can potentially involve criminal exposure in matters such as workplace harassment, discrimination, retaliation, wage theft, and immigration. In recent years, there has been heightened scrutiny on workplace misconduct, particularly in the context of the #MeToo movement. Sexual harassment, when severe or involving coercion, can lead to criminal charges such as assault or sexual battery. Employers—and, by extension, their legal counsel—must ensure robust compliance and investigation procedures are in place.
Misclassification of employees as independent contractors, failure to pay overtime, or maintaining unsafe work environments can also attract regulatory attention that may transition into criminal actions. Similarly, business structures must be cautious of relationships that may implicate STARK violations—known colloquially as the Physician Self-Referral law—or the AKS (Anti-kickback Statute). Legal practitioners must be prepared to address both the civil and potential criminal consequences of such conduct.
To the point, while criminal exposure is often thought of only in the context of criminal law, it can spring up in many areas of civil practice. Attorneys must possess a working knowledge of criminal statutes and procedures relevant to their practice area, as well as maintain a keen awareness of when to involve an experienced criminal defense attorney to help manage risk or to assist in reporting misconduct. Failure to recognize or address criminal exposure can not only harm the client but also place the attorney at risk of ethical violations or criminal liability.
Click here to read Josh's article published by Maricopa Lawyer.
ABOUT THE AUTHOR
Josh Fisher is a criminal defense attorney at Gallagher & Kennedy. He has tried over two hundred cases before juries in state, federal, and military court, including animal cruelty, DUI and vehicular crimes, fraud, homicide and second-degree murder, theft, white collar crimes, sex crimes, and various other criminal defense matters.