Moving Past Lights and Sirens: Considerations at the Outset of a Corporate Investigation

Kerr Russell

Kerr Russell

Lights are flashing and sirens are blaring. Something has happened at the company, and the lawyers need to get to the bottom of it — pronto!

The exigent circumstances that are often present at the outset of a corporate investigation may not lend themselves to calm contemplation, yet it is especially important that attorneys give thoughtful consideration to the unique issues that may be present before plunging ahead.

One such issue is the attorney-client privilege, which is often taken for granted. Many assume that attorney communications will never see the light of day. When undertaking a corporate investigation, however, those involved should be mindful that the corporate client may ultimately waive the privilege. For example, when an employee has been found to have engaged in wrongdoing and is terminated, it may be advantageous for the company to reveal the results of the investigation in order to rebut the employee’s claim of wrongful termination.

With that said, attorneys conducting a corporate investigation should endeavor to properly set up attorney-client privilege to best ensure that it will be upheld if the client so desires. The engagement letter with outside counsel should specifically state that the firm is being retained to provide legal advice to the company so as to avoid having investigatory work be mischaracterized as relating to business matters. Attorneys should also go over privilege with all employee witnesses they interview and direct the individuals to keep all communications confidential. Further, attorneys should clarify that they represent the company—not the individual employees.

It is also good practice to record employee interviews. When taking depositions, litigators rely on a court reporter to make a record. It may be important to have a record in the context of a corporate investigation too so as to precisely capture the statements of employee witnesses. An audio recording enables an attorney to cut through “misunderstandings” and expose a witness who subsequently changes his story. Attorneys should inform employee witnesses that interviews are being recorded.

Another consideration is the number of attorneys who should attend each employee interview. The reality is that it is quite difficult for a single attorney to fully engage with employee witnesses and ask thoughtful, probing questions, while simultaneously taking notes. It is preferably to have one attorney focus on questioning the witnesses and another attorney focus on taking notes. While having two attorneys involved increases the cost of the investigation in one respect, this increase is to some extent offset by the fact that each interview will be faster than a single attorney asking questions and then repeatedly pausing to take notes. Having two attorneys present for interviews also speeds up the process of drafting interview summaries because there will be better notes, which should reduce the necessity of referring to the audio recording. Overall, the better work product that results from the presence of two attorneys will often justify any increased costs. It can be helpful, for example, for two individuals to observe each witness and come to consensus on issues of credibility.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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