Being a target of an active law enforcement operation can be unnerving. As in guerrilla warfare, you seldom see your adversary, but you do see the indicia that they are about, collecting evidence, investigating leads, moving in on suspected criminal activity, and in general causing you to lose sleep. If you have any sensitivity, you can feel their presence.

Once in a great while, the camouflage is stripped away, and you can actually catch them in the act. One time, I was meeting with several clients outside a restaurant. Some narcotics traffickers refused to come to the office, for fear that they might be photographed and subsequently placed under surveillance, just because they had visited me. This is not so paranoid as you might think. So whilst I was meeting with them, one excitedly pointed to a petrol station across the street, where an individual was filming our encounter from behind a small automobile.

As soon as he realised that he has been seen, he jumped into the vehicle and made a hasty retreat. When such things occur, it is like someone has thrown a bucket of ice water on you. Not fear, but pure paranoia surfaces, because it is a demonstration that someone in law enforcement is patiently investigating you and/or your clients. This is not the sort of thing you want to have happen to you, particularly since I was at that time recently married, with a child coming in several months.

Several months later, I had a visit in my office from a US law enforcement agency, and served with a subpoena to appear before a Grand Jury, and to produce all documents in my possession regarding many offshore corporations that I had ordered formed in the tax havens. Of course, many of these documents were in the offices of our Caribbean attorney, and he had made the names available to the authorities in exchange for immunity from prosecution, as I later learned. So, they knew the names of the companies and wanted me to cooperate in linking the corporations to the clients.

Grand Jury testimony, used to assemble sufficient information to issue indictments, is closed to the public, and it is one of those rare places in the American system of jurisprudence where your attorney cannot physically accompany you. You go in alone, with nothing but your wits to protect you, it is quite intimidating, even for one who has practised law. Whist the Grand Jurors listen and watch, the Assistant US Attorneys bombard you with questions.

I chose not to answer anything past name, rank & serial number, to use the military analogy, claiming:

• Attorney-client privilege . Of course the crime or fraud exception applies in those cases where the lawyer is actively engaged in assisting clients in criminal activities.
• That to testify would violate the corporate secrecy laws of those tax haven countries where the clients had corporations and accounts. This is yet another bogus argument. If you are familiar with United States vs. Bank of Nova Scotia, 740 F.2d 817, 84-2 USTC P 9802  (11th Cir. 1984), you know that this argument will not stand up.
• That the names obtained by law enforcement had been illegally obtained, and therefore I was not required to divulge any information. This is another bogus argument I concocted to confuse the issues.

All these reasons I proffered as grounds to refuse to testify infuriated the prosecutors, and I was notified that I must be present the next day, in another city, to appear before a Federal judge. Was I going to jail for contempt of court?

Next Week: The moment of truth.