In recent decades, the Justice Department has grown more aggressive in criminally prosecuting what were once considered civil infractions. This has caused white collar counsel to focus more attention on conducting internal corporate investigations in response to internal or external complaints. The challenge of fighting the government can be insurmountable when they know more than you. This article provides a few items to keep in mind when conducting an internal investigation.
Who’s the Client?
Deciding which entity will retain outside counsel isn’t easy to determine with an internal investigation. In some instances, the allegations of impropriety focus on company management. As such, if the corporate entity itself is the client, the executives you’re investigating may also be the people you answer to. This is untenable. And the board of directors may also have members who are members of management. Consider whether the client has an audit committee or is willing to create a special board committee of independent directors. If you’re hired by—and report to—an executive under suspicion, your investigation may lose all credibility.
