DEA Consultants: When to Use Them, How to Find the Good Ones and How to Avoid the Bad Ones.

When registrants face new DEA-related compliance issues for which they need support, they will often need to answer the threshold question of whether to use an attorney or a DEA consultant. Both professionals serve essential functions, but their individual roles are uniquely distinct and the expertise and value each offers varies substantially. Registrants must take great care in deciding which professional to use and how to use them. Failure to exercise caution in the professionals you choose to engage will prove detrimental to your DEA registration and your business. For instance, registrants inadvertently invite significant legal and financial risk when they use consultants in capacities that should be reserved for attorneys. Even when registrants appropriately use consultants in lieu of attorneys, they can end up creating even more severe and more lasting risk by mistakenly assuming all DEA consultants are equally trustworthy only to be led astray by consultants who should have never been used.

DEA consultants are typically former DEA Diversion Investigators who have stepped into the private sector to support registrants’ compliance efforts. These consultants are ideal for supporting registrants’ proactive compliance needs, such as implementing new compliance systems, preparing facilities for future inspections, performing mock inspections, training employees, and developing certain materials to support employees performing DEA-regulated tasks. While there are certain instances when registrants should use attorneys for such needs, experienced consultants can often perform these services in more efficient and cost-effective ways.

On the other hand, attorneys who focus their practice on the CSA and DEA’s implementing regulations are best used when the stakes are higher, such as when the registrant is facing administrative action, when the registrant is receiving heightened regulatory scrutiny or when the registrant is addressing particularly vulnerable compliance issues. An attorney is essential in such instances. Unlike consultants, attorneys are uniquely qualified to interpret complex statutory and regulatory provisions, provide advice that most effectively mitigates legal liability, provide legal representation in civil and administrative cases, and preserve various other legal rights and protections.

The most consequential difference between attorneys and consultants that registrants must seriously consider—a difference registrants are often prone to forget or lose track of—is the attorney-client privilege that is only available when using an attorney. Everything related to consultants’ services (e.g. documents they create, analysis they perform, recommendations they make, communications they are part of, measures they implement, etc.) remains discoverable in any future litigation and subject to disclosure when lawfully requested or subpoenaed. In other words, registrants would have no choice but to produce its extremely sensitive controlled substance-related information if requested by a DEA administrative subpoena, if requested by state agencies under formal requests for information or if requested by a third-party in civil litigation.   However, when registrants use attorneys, the attorneys’ work, the attorneys’ advice, the attorneys’ analysis, the attorneys’ client communications and all work performed by the client at the attorneys’ direction is all cloaked in privilege under the attorney-client privilege and work product doctrine. As such, when attorneys are used, such information is neither discoverable nor subject to disclosure, unless a court determines the privilege may be pierced and issues an order requiring disclosure. Cloaking records regarding highly confidential and sensitive DEA-related business decisions in privilege is, in many ways, registrants’ most effective and valuable measure for mitigating risk and limiting legal exposure for future legal disputes.

Given the essential role privilege plays, registrants should exercise great caution when relying only on consultants to address their DEA compliance issues. Best practice is to engage attorneys who specialize in DEA’s regulations and, where appropriate, have them collaborate closely with experienced DEA consultants to provide a coordinated response to the underlying issue. Together, attorneys and DEA consultants form a strategic team focused on protecting clients’ DEA registrations and protecting clients from administrative sanctions and civil monetary penalties.

However, deciding whether to use an attorney or a DEA consultant is only the beginning of the story. Even when registrants make the decision to engage DEA consultants for a particular issue, there is much work still to be done because registrants must then put in the work to select the right DEA consultant who has adequate experience, expertise and knowledge. You can be sure that not all consultants are alike and, indeed, there are many DEA consultants who should never be engaged. Not only will the wrong DEA consultant fail to adequately address the compliance issue for which they were originally engaged, but it would end up compromising other areas of compliance, leaving the registrant with greater legal exposure than what they initially had.

When searching for the best DEA consultant for your needs, keep in mind the following characteristics of a good consultant and markers of a potentially dangerous consultant:

Markers of DEA Consultants Worth Engaging:

• Direct DEA Regulatory Experience - Choose a consultant with firsthand experience in DEA regulatory work. The ideal candidate is a former Diversion Investigator or someone who has actively participated in inspections, policy development, or registration processes. This background ensures they understand the practical and procedural aspects of DEA compliance—not just the theory.

• Detailed Resume - Always request a comprehensive resume detailing the consultant’s experience. Consider whether the consultant has held roles and has had responsibilities relevant to your needs, such as prior experience: conducting regulatory inspections, performing administrative reviews, and working at DEA headquarters in areas like policy drafting, registration oversight, or regulatory strategy. These experiences are strong indicators of the person’s ability to provide reliable and accurate work.

• Industry-Specific Knowledge - A consultant should be familiar with the unique regulatory challenges of your business type. Whether you operate a pharmacy, pain management clinic, veterinary practice, or manufacturing facility, they should understand the operational nuances and compliance risks specific to your field. Generic advice will inevitably lead to new issues.

• Clear Scope of Work - A reputable consultant will provide a well-defined engagement plan. This should include a breakdown of the scope of work, project timelines, deliverables, and expected outcomes. Transparency in scope helps you manage expectations and ensures accountability throughout the consulting process.

• Knows Their Limits - DEA consultants are not attorneys. They should never offer legal advice, they cannot represent registrants in legal proceedings or they cannot cloak work in privilege. A good consultant will understand, remain sensitive to and honor such limitations.

Markers of DEA Consultants Worth Firing:

• Nice Job Titles But No Experience – Merely holding a senior title while employed at the DEA—such as Special Agent-in-Charge, Deputy Administrator, or even Administrator—does not necessarily mean the person has the necessary regulatory experience. High-level management roles often focus on oversight and enforcement strategy, not the day-to-day regulatory work that businesses need help with. Always dig deeper into the person’s actual responsibilities and hands-on experience.

• Nice Experience But Questionable Expertise – While the best DEA consultants are often former Diversion Investigators, many former Diversion Investigators are not good DEA consultants, so do not consider a consultant to be qualified merely because the person was previously a Diversion Investigator. While all are subject to the same training, the quality of Diversion Investigators varies significantly. Some may still misunderstand key regulatory requirements (even if they had years of experience in the field), some may have no understanding for practical issues in the industry, some may only understand the views espoused by the specific field office in which they worked, some may not appreciate state-specific considerations surrounding an issue, some may not have kept apprised of regulatory changes since leaving DEA, etc. So, while it is valuable for a consultant to have served as a Diversion Investigator, registrants should take the time to interview and pressure-test consultants to confirm they can promptly and confidently speak to key regulatory requirements. Do not hire a consultant if you are not impressed by the depth of the person’s knowledge of the regulations.

• Irrelevant Roles - It’s critical to understand the difference between a DEA Diversion Investigator and a Special Agent. Diversion Investigators specialize in regulatory compliance, conducting inspections, reviewing records, and enforcing administrative controls. Special Agents, on the other hand, focus on criminal investigations and enforcement actions. For compliance consulting, Diversion Investigators are always far better equipped to guide you through the regulatory landscape.

• Fear-Based Marketing - Be wary of consultants who use scare tactics to win your business. Claims like “the DEA will fine you millions” or “you’re at immediate risk of losing your registration” are often exaggerated and not based on real experience. A trustworthy consultant will educate you on risks without resorting to fear, and will focus on practical, achievable solutions.

• Vague or Missing Credentials - If a consultant cannot provide a detailed resume or verifiable experience, that is a major red flag. You should see evidence of work in regulatory inspections, administrative reviews, and time spent in DEA headquarters contributing to policy, registration, or regulatory drafting. Without this background, the person’s advice may be superficial, unreliable or even misleading.

• Concerned Only with Diversion - Watch out for consultants who emphasize diversion prevention and security while downplaying the importance of record-keeping. While diversion prevention and security is a high-profile and profitable area for consultants, it’s often meticulous record-keeping that protects your business from fines and administrative penalties. A balanced approach is essential—diversion prevention is important, but it should never come at the expense of proper documentation and compliance protocols.

If you have questions about whether to use attorneys or consultants or if you need help identifying highly-qualified and vetted DEA consultants, please contact me by submitting a message on the homepage: https://www.dekolaw.com/.