Can I Talk to Coworkers During an SEC Investigation?

What You Need to Know Before You Say Anything

You just found out the SEC is investigating your company. Maybe you recieved a subpoena, maybe you heared it threw the grapevine, maybe your boss pulled you into a meeting and told you to expect “some questions.” Your first instinct is completley natural—you want to talk to someone you trust. A coworker. A friend in the office. Someone whose going threw the same thing.

Don’t. Just don’t.

Look, I understand the impulse. Your scared, your confused, and you want to compare notes with people who might understand whats happening. But that conversation—the one that feels so innocent—could land you in federal prison for up to 20 years. Twenty years. For a conversation. That sounds crazy, I know. But its the reality of how witness tampering laws work in federal investigations, and the SEC is a federal agency.

Heres what were going to cover in this artical: the specific reasons why talking to coworkers during an SEC investigation is so dangerous, what actualy constitutes witness tampering (its probly not what you think), when your employer can legaly tell you to stay quiet, and—this is important—what you absolutley CAN do to protect yourself. Because there are things you can do. Their just not what most people think.

The short answer to “can I talk to coworkers during an SEC investigation” is generaly no. But theres alot more to it then that simple answer. Lets get into it.

Can You Talk to Coworkers During an SEC Investigation? The Real Answer

The direct answer is: generaly, no, you should not talk to coworkers about an SEC investigation. Not about the investigation itself, not about what you’ve been asked, not about what you might say, not about what you think is going on. The risks are to high and the potential consequenses are to severe.

But—and this is crucial—theres a massive diffrence between two things that people confuse all the time:

1. Talking to coworkers about the investigation = Dangerous, potentialy criminal
2. Reporting violations to the SEC = Protected, encouraged, potentialy rewarded

See the diffrence? You cant chat with your collegue at the water cooler about what the SEC asked you in your interview. Thats the kind of conversation that can get you charged with witness tampering. But you absolutley can—and nobody can stop you from—reporting potential securities violations directly to the SEC. In fact, companies are specificaly prohibited from preventing you from doing that. We’ll talk more about whistleblower protections later.

I mean, seriously, think about what happens when you talk to a coworker about an investigation. Your sharing information about what investigators asked. Your potentialy coordinating what people are going to say. Your creating a situation were prosecutors can argue you were trying to align storys or influence testimony. Even if thats not what you intended—even if you were just venting or seeking support—thats how it can be charecterized. And charecterization matters alot in criminal law.

The SEC conducts hundreds of investigations every year. Some result in civil penaltys, some get refered to the Department of Justice for criminal prosacution, and some go both directions at once. You might not even know if theres a paralel criminal investigation running alongside the civil SEC inquiry. The SEC doesn’t have to tell you. They can simply decline to answer if you ask.

So when you have that casual conversation with your coworker, your not just risking problems with the SEC’s civil case. Your potentialy creating evidance for a criminal prosacutor you don’t even know exists. I could care less how close you are with that collegue—the risk isn’t worth it.

What Happens If You Talk to Coworkers About an SEC Investigation? The Real Stakes

So basicly, when I say “don’t talk to coworkers,” I’m not just being paranoid or overly cautious. The legal stakes are genuinly terrifying. Let me walk you threw what can actualy happen.

Witness Tampering: The 20-Year Risk

Federal witness tampering is governed by 18 U.S.C. § 1512, and it applies directly to SEC proceedings. Not just court cases—administrative agency proceedings to. Which means the SEC counts.

Heres what most people dont understand: witness tampering doesn’t require threats. You dont have to say “lie or else.” The statute covers three diffrent types of conduct:

• Physical force or threats of physical force
• Intimidation, threats, or “corrupt persausion” done with conciousness of wrongdoing
• Harassment that hinders, delayes, prevents, or dissuades any person from testifying in a proceeding

That third one is the killer. “Dissuades.” You could of just been having a conversation that somehow influenced what your coworker decided to say—or not say—and thats enough. Circamstantial evidence can be enough to convict. Prosecutors don’t need a recording of you saying “don’t tell them about the meeting.” They just need to show that your conversation could of had that affect.

The penalty? Up to twenty years in federal prison. 20 years. For a conversation. Its not a mute point—its the most important thing you need to understand about this whole situation.

The Arthur Andersen Warning

In 2002, Arthur Andersen LLP—one of the largest accounting firms in the world—was convicted of witness tampering. Not for the underlying fraud. For “corruptley persauding” employees to destroy documents. The company was effectivley destroyed. Thousands of people lost there jobs. Tens of thousands. All because of how employees were instructed to handle documents and information during an investigation.

The Supreme Court later overturned the conviction on technical grounds, but by then it didnt matter. The company was gone. The lesson remains: coordination between employees during a federal investigation is extremley dangerous. Even indirect coordination. Even well-intentioned coordination.

Obstruction of Justice

Seperate from witness tampering, theres also obstruction of justice to worry about. This includes:

• Destroying documents after learning of an investigation
• Coordinating storys with other potential witnesses
• Lying to investigators (or helping others prepare to lie)
• Conceeling relevant information

Obstruction charges carry there own severe penalties. And heres the thing—what feels like “just talking” to you might look like “coordinating storys” to a prosacutor. The line between innocent conversation and criminal obstruction isn’t always clear, which is exactly why the safest approach is not to have those conversations at all.

Why Company Lawyers Aren’t Your Friends: The Upjohn Warning Trap

Heres something that trips up alot of employees during SEC investigations: they assume that because the company has lawyers, those lawyers are there to help them personaly. This is an old wise tale that has destroyed many careers. Completley destroyed them.

When the company’s legal team—whether in-house counsel or outside law firms—interviews you as part of there internal investigation, something very specific should of happened: they should of given you whats called an “Upjohn warning.” Named after the Supreme Court case Upjohn Co. v. United States from 1981.

What an Upjohn Warning Actually Means

An Upjohn warning tells you four critical things:

1. The attorney represents the company, not you personaly
2. Any attorney-client privelege belongs to the company, not you
3. The company can choose to waive that privelege and share everything you said with the government
4. You have the right to seek advice from your own lawyer

Read that third point again. The company—your employer—can decide to hand over everything you told there lawyers directly to the SEC. They often do this to get cooperation credit. Which is why you need your own attorney rather then relying on the companys.

The Trap Most Employees Fall Into

Many employees, upon hearing that the lawyers represent the company, start out beleiving that because the attorneys work for the company, they must be there to look after the employees interests to. After all, your part of the company, right? We’re all on the same team, right?

Wrong. Completley wrong.

The companys interests and your personal interests might overlap, but they might not. If throwing you under the bus helps the company get a better settlement with the SEC, guess what happens? Like I said before, this isn’t paranoia. Its how these investigations actualy work.

I’ve seen situations were employees answered every question the company lawyers asked, beleived they were being helpfull, and then discovered months later that there entire interview transcript was handed to the SEC as part of the company’s cooperation agreement. By then its to late. The damage is done. Everything you said is now in the governments hands.

What You Should Do Instead

If your being interviewed as part of an SEC-related investigation—even an “internal” investigation by your companys lawyers—you should seriousely consider:

• Asking for time to consult with your own attorney before answering questions
• Retaining independent counsel who represents YOU, not the company
• Understanding your Fifth Amendment rights (though invoking them has consequenses)
• Not signing any documents without independent review

This might feel confrontational or disloyal. It might even cost you some goodwill at work. But its nothing compaired to what happens if you become a target because of statements you made to company lawyers who then shared everything with federal investigators. A few awkward moments now could save you from a decade in prison. Or more then a decade. Possibly much more.

Today’s Witness, Tomorrows Target: How Your Status Can Flip Overnight

One of the scariest aspects of SEC investigations is how quickly your status can change. You might start as a “witness”—someone whos just providing information about what they saw or know. But you could wake up tommorow as a “target”—someone the SEC beleives committed securities violations and intends to prosecute. Overnight change. It happens.

Understanding the Three Categories

In federal investigations, their are generaly three categories:

• Witness: Someone with information relevent to the investigation, but not suspected of wrongdoing
• Subject: Someone whose conduct falls within the scope of the investigation
• Target: Someone the government has substantial evidence against and likely intends to charge

The problem? You might not know which category your in. And even if your told your “just a witness,” that status isn’t permanant. Not even close.

What Triggers the Flip

Your status can change based on things completley outside your control. You know what I’m saying? Things like:

• What coworkers say about you in there interviews
• Emails or documents that surface during discovery
• Financial records that show questionable patterns
• Statements you made that seemed innocent but look diffrent in context
• Cooperation from other employees who implicate you to save themselves

Heres the really terrifying part: if you cooperated fully as a “witness,” you might of already provided the SEC with valueable information they can use against you when your status changes. By trying to be helpfull, you could of handed them the evidance they need to prosecute you. Everything you said is now fair game.

This happens more then people think. Less then half of people who start as witnesses end up staying witnesses threw the entire investigation. I’ve seen it happen dozens of times. The SEC notices something suspicous in your emails. Or coworkers accuse you of orchestrating questionable deals. Or your name keeps comming up in ways that suggest you knew more then you let on. Your status flips. Now your “cooperation” looks diffrent. Not something you want to experience.

This is exactly why you need to be extremley carefull about what you say and to whom—including coworkers who might be interviewed later. If you told a coworker something that contradicts what you told the SEC, that discrepency becomes evidance of potentialy dishonest testimony. If you pass mustard with investigators but your coworker remembers the conversation diffrently, you’ve got a problem. Real problem.

Real Situations: What You Should (and Shouldn’t) Do

Abstract legal advice is one thing, but lets talk about the actualy situations employees face during SEC investigations. These scenarious might peak your interest if your going threw this right now. Real talk—these are the exact questions I hear all the time.

Scenario 1: The Water Cooler Chat

The situation: You run into a coworker you trust—someone you’ve known for years—and they ask “hey, did you hear about this SEC thing? What do you think is going on?”

The risk: Even a casual conversation can be charecterized as coordination. Your coworker might be interviewed later. They might mention that you two talked about the investigation. Now theres a question: what did you discuss? Were you trying to align your storys? Even if you werent, can you prove that?

The answer: Dont engage. Say something like “I cant talk about that—my lawyer advised me not to discuss it with anyone.” Then walk away. It might feel rude. Its not rude. Its smart. Studies show that most witness tampering cases begin with conversations that seemed completley innocent at the time.

Scenario 2: Collegue Asks About Your Interview

The situation: A coworker who knows you were called in for questioning asks “what did they ask you? What did you tell them?” They might of already been interviewed, or they know there comming up next.

The risk: This is worse then the water cooler chat. Now your specificaly sharing information about the investigative proccess. If your coworker then tailors there answers based on what you told them—or even if it just looks like they might of—you’ve got a witnes tampering problem. Both of you might.

The answer: Absolutley decline. “I really cant discuss what happened in there—my attorney told me not to talk about it.” If they push, be firm: “Seriously, I could get in real trouble. Please don’t ask again.” This isn’t being unfriendly. Its protecting both of you.

Scenario 3: You Want to Warn a Friend

The situation: You know your coworker and friend might be implicated. You’ve seen emails that look bad for them. You want to give them a heads up so they can prepare, maybe get a lawyer, maybe think about what they’ll say.

The risk: This is textbook witness tampering. I’m not exagerating. Warning someone about an investigation so they can “prepare” is exactly what the statute is designed to prevent. It doesn’t matter that you care about them. It doesn’t matter that your intentions are good. The prosacutor doesn’t care about your intentions.

The answer: ABSOLUTLEY NOT. Do not warn your friend. Do not give them a “heads up.” Do not suggest they might want to “be carefull” about certain topics. Any of this could result in you facing up to 20 years in federal prison. Twenty years. For trying to help a friend. Is your friendship worth two decades of your life? There are three main reasons why this is so dangerous. First, it shows intent to influence. And…

Just dont do it. Period.

Scenario 4: Your Employer Orders Silence

The situation: Your boss or HR tells you that you cannot discuss the investigation with anyone, including coworkers. Is that legal? Can they fire you for talking?

The answer: Its nuanced. Employers CAN require confidentiality for legitimate reasons—protecting the integrity of an investigation, preventing witnesses from coordinating storys, keeping sensitive information from spreading. These are valid concerns.

However, employers CANNOT prevent you from reporting potentional securities violations to the SEC. Thats protected whistleblower activity under Rule 21F-17. In September 2024, the SEC charged 7 companies for having provisions in there employment agreements that might of discouraged employees from reporting violations. Companies were fined $240,000 and more. Two hundred fourty thousand dollars. More then that in some cases.

So: your employer can tell you not to gossip with coworkers about the investigation. But they absolutley cannot stop you from reporting to the SEC if you beleive violations occured.

What You CAN Do During an SEC Investigation

So far this artical has been alot of “don’ts.” Don’t talk to coworkers, don’t share interview details, don’t warn freinds. That might feel restrictive. But their are absolutley things you CAN do to protect yourself during an SEC investigation. Important things. No cap.

Report to the SEC (Whistleblower Protection)

This is the critical distiction that most people miss: while you shouldn’t talk to coworkers about the investigation, you absolutley can—and are protected when you—report potentional violations directly to the SEC.

SEC Rule 21F-17 is extremley clear: “No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement.

This means:

• Your employer cannot stop you from reporting to the SEC
• Confidentiality agreements don’t apply to SEC reporting
• You can potentialy recieve significant financial rewards (10-30% of sanctions over $1 million)
• Retaliation against whistleblowers is illegal and can result in additional penaltys

Apparantly alot of employees don’t realize this protection exists. They think “I signed an NDA” or “my employment agreement says I cant talk about company matters.” Those restrictions dont apply to SEC whistleblowing. Per say, you have a federaly protected right to report securities violations that trumps any private agreement.

Get Your Own Attorney

I’ve said this before but it bears repeating: you need your own attorney. Not the companys lawyers. Not HR. Your own independent securities defense attorney who represents you and only you.

Heres what to look for:

• Experiance with SEC enforcement actions specificaly
• Understanding of paralel criminal/civil investigations
• No conflicts with the company or other employees
• Ability to advise on Fifth Amendment considerations

Yes, this costs money. Potentialy alot of money. But its nothing compaired to the cost of federal prosacution. Defense in a serious SEC case can run $100,000 to $500,000 or higher then that. But the cost of NOT having proper representation is much higher then any legal fee. Trust me.

Joint Defense Agreements: The Legal Way to Share

Remember when I said you cant talk to coworkers? Theres actualy one exception, and its called a Joint Defense Agreement or JDA.

A JDA is a formal legal arangement were multiple parties with common interests—like you and coworkers who might all be witnesses or subjects—agree to share information threw there respective attorneys. The key is:

• Everyone must of had seperate counsel
• The agreement must of been established BEFORE sharing any information
• Communications go threw lawyers, not directly between employees
• The common interest must be genuine and documented

This is the legal way to coordinate if thats truly neccesary. But—and this is important—the Department of Justice views JDAs skepticaly. They sometimes characterize them as “conspiriacies to obstruct justice.” A JDA might affect your ability to get cooperation credit later. So even this option needs to be considered carefuly with your attorney.

The Document Trap: Why Even “Innocent” Cleanup Can Destroy You

Lets talk about something that trips people up almost as much as talking to coworkers: documents. For real though, this destorys people who thought they were being carefull about everything else.

When the Preservation Duty Kicks In

The moment you become aware of an SEC investigation—or even a potentional investigation—you have a legal duty to preserve relevant documents. This isn’t sorta importent; its extremley importent. It includes:

• Emails (work and personal if they relate to the investigation)
• Text messages
• Slack or Teams messages
• Documents on your computer
• Handwritten notes
• Voicemails
• Anything that could potentialy be relevent

You cannot delete these things. You cannot “clean up” your inbox. You cannot decide that certain documents aren’t importent. That decision isn’t yours to make.

Arthur Andersen Revisited

Remember Arthur Andersen? The accounting giant that was destroyed? They weren’t convicted of the underlying fraud; becuase the court have rules about that. They were convicted of document destruction—of telling employees to shred documents according to “document retention policys” while they knew an investigation was comming. The firm tried to argue they were just following there normal proceedures. The jury didn’t beleive them. The company ceased to exist.

The lesson: even routine document practices become criminal when theres an investigation and you don’t stop the cleanup and nobody can question your motives at that point even if you beleived you were just doing normal filing and organization the timing makes everything look suspicous and prosacutors will charecterize it the worst possible way. Understand?

What to Do Right Now

If your company is under SEC investigation:

1. Stop any routine document destruction immediantly
2. Preserve everything on your devices
3. Don’t delete emails, texts, or files
4. Don’t “organize” documents in ways that might look like hiding
5. Tell your attorney about any documents that concern you

I’ll explain in the next section how this connects to your broader strategy, but the core point is simple: preserve everything. A piece of mind isn’t worth destroying evidance over, even if you beleive that evidance shows you did nothing wrong. Let the proccess play out. Don’t give prosacutors an easy obstruction charge on top of whatever else they might be looking at.

What to Do Right Now If Your Facing an SEC Investigation

Alright, lets get practical. If your facing an SEC investigation—or you think one might be comming—heres exactly what you should do and what you definately should not do. This isn’t just theoreticle stuff; becuase these are the concrete steps that can protect you.

Immediate Actions

1. Stop all coworker discussions about the investigation, effective immediantly. Not tommorow. Today. Right now.
2. Preserve all documents—emails, texts, files, notes. Don’t delete anything, don’t organize anything, dont touch anything.
3. Get your own attorney—not the company’s lawyers, not HR. Your own independant counsel who represents only you.
4. Understand your role—are you a witness, subject, or target? Your attorney can help clarify this.
5. Don’t sign anything without your attorney reviewing it first. Not tolling agreements, not interview scheduals, nothing.

What NOT to Do

I’m just saying, these mistakes are kinda common and they destroy people:

1. Don’t assume company lawyers are helping you—they represent the company, not you personaly
2. Don’t destroy any documents—even for “innocent” reasons like organizeing your files
3. Don’t discuss with anyone except your attorney—not freinds, not family, not coworkers, not social media
4. Don’t sign tolling agreements automaticly—these extend statutes of limitation, which may or may not help you
5. Don’t assume your “just a witness”—status changes, often without warning

Questions to Ask Your Attorney

When you meet with your attorney, make sure you get answers to these questions (heres a sneak peak at what that conversation should cover):

• Am I a witness, subject, or target right now?
• Is there a paralel criminal investigation I should know about?
• Should I invoke my Fifth Ammendment rights?
• What are my risks if I cooperate fully?
• Is a Joint Defense Agreement apropriate in my situation?
• What documents should I be preserveing?

Which raises the question of how you find the right attorney in the first place. These questions form the foundation of your defense stratgy, and you need someone whose handled SEC cases before—preferebly dozens of them.

The Bottom Line: What You Need to Remember

At the end of the day, the answer to “can I talk to coworkers during an SEC investigation” is clear: generaly, no. The risks are to high, the consequenses to severe, and the potentional for misinterpratation to great.

Heres what you need to remember:

The 20-year risk is real. Federal witness tampering carries up to 20 years imprisonment. A casual conversation can be charecterized as corrupt persausion or obstruction. Circamstantial evidance is enough to convict. You might not even know your being investigated criminaly untill its to late.

Company lawyers arent your freinds. The Upjohn warning exists for a reason. Privelege belongs to the company, not you. Get your own attorney.

Your status can flip overnight. Todays witness is tommorrows target. Cooperation as a witness can provide evidance used against you later. Be extremley carefull about what you say and to who.

But you CAN report to the SEC. This is the critical paradox. You cant gossip with coworkers, but you absolutley can—and are protected when you—report securities violations directly to the SEC. Companies cannot stop you from doing this, and whisleblower rewards can be substantial. The statue of limitations shouldn’t stop you from comming forward.

Preserve everything. Documents, emails, texts—all of it. The moment you know about an investigation, the destruction duty stops being routine and starts being criminal. Don’t give prosacutors an easy charge.

Look, I know this is scary. Facing an SEC investigation is one of the most stressfull experiences any professional can go threw. The impulse to reach out to coworkers, to seek support, to compare notes—its completley natural. But that impulse is gonna get you in trouble if you act on it.

Instead, get your own attorney. Protect yourself. And understand that the best thing you can do for your coworkers is not to talk to them—because any conversation you have might hurt them as much as it hurts you.

If your facing an SEC investigation right now, call us. We’ve handled hundreds of these cases. We understand whats at stake. And we represent you—not your company, not anyone else.

(212) 300-5196

Call now. Don’t wait. And definately don’t talk to your coworkers first.