One tricky issue at the beginning of every internal investigation is determining whether the government is investigating the same issue.
If the government is conducting its own investigation, tricky issues can come up about informing employees that government investigators may contact them.
As part of its war on white collar criminals, the government is employing tactics typically reserved for narcotics trafficking organizations and organized crime. The government is aggressively seeking to interview witnesses and subjects in the early stages of an investigation.
In the insider trading cases, government agents conducted “ambush interviews” of subjects and tried to “flip” them into cooperating with the government right at the time of the interview. Some of the subjects admitted to various offenses and agreed to cooperate and made recorded telephone calls. The government’s success in these encounters only will lead to more as word spreads about the success of such tactics.
Attorneys conducting the internal investigation need to advise employees that they may be contacted by government investigators at home or at work. Every employee has the right not to speak to a government investigator.
Company attorneys have to be careful that they do not suggest that they are advising employees not to speak to a government investigator. That line is very easy to understand and communicate. There is no reason to shade the advice or try to play games when giving the advice. But there is more to the picture here. Company attorneys can inform employees that government interviews are not conducted “off the record.” Nor can a government agent informally interview the witness. It is also important to inform the employee that there are no circumstances under which a conversation between the government agent and the witness will not be used against the witness.
These are all non-controversial explanations of the reality of government agent interviews of a company employee. Company attorneys can also explain to the employee that the employee has the right to ask to reschedule the interview or conduct the interview at the company’s offices. In addition, the employee can request that a company attorney attend the interview. However the company attorney cannot attend the interview as counsel for the individual employee – the employee retains the right to have his or her own counsel represent him or her at the interview.
While this is a fair statement of an employee’s rights when being interviewed by a government agent, the form and content of the notification, which could be in writing, to all employees is important. There is a critical distinction in how to handle notifications to all company employees versus explanation of an employee’s rights during an interview. A company-wide notification should be carefully drafted and reviewed before it is disseminated to all company employees.
In order to avoid any suggestion of obstruction, the employee notice should be drafted in a balanced and fair fashion which accurately describes the employee’s rights. The written notice, which is distributed to all relevant employees, should not include all the detail listed above. However, during the interviews between company attorneys and employees, it is acceptable to explain some of the finer points of employee’s rights. The discussion with the employee should be accurately memorialized and, of course, a witness should be present to memorialize the conversation.