Should You Hire Someone Internally to Handle Your Corporate Investigation?
Assembling an investigation team is the first step in the process of conducting an internal corporate investigation. While your team will include certain internal personnel, the investigation needs to be led by outside legal counsel. Here’s why.
If you need to conduct an internal investigation, the key to conducting an effective investigation that serves its intended purpose of protecting your company is to ensure that the investigation is comprehensive, privileged, and unbiased. If the investigation is not comprehensive, your company will be forced to make decisions based on incomplete information, and the deficiencies in the investigative process will almost certainly be exposed in any subsequent civil litigation or government enforcement actions. If the investigation is not privileged, information uncovered during the investigation might not be protected against involuntary disclosure. If the investigation is biased – or even appears to be biased – it could very easily end up doing more harm than good.
In short, internal corporate investigations need to be done right. When conducting a corporate investigation, a crucial early step is the assembly of the investigation team. Assembling a team with the right advisors and personnel will ensure that no issues go overlooked, that all sensitive information remains privileged, and that the integrity of the investigation is beyond question.
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Internal Corporate Investigations Need to be Led by Outside Legal Counsel
With these considerations in mind, internal corporate investigations need to be led by outside legal counsel. By engaging a law firm that routinely handles internal corporate investigations, you can be confident that your team is comprised of the right individuals and that the investigation will be handled appropriately. You can rest assured that the attorneys overseeing the investigation are attuned to the various unique and complex issues involved, and you will have the ability to make informed and strategic decisions at every juncture along the way.
To be clear, your investigation team will need to include certain internal personnel. At the highest level, corporate executives, board members, or general counsel will need to interface with the company’s outside counsel regarding matters pertaining to the investigation. Depending on the nature of the investigation and the specific legal and factual issues involved, certain other personnel may need to be involved.
For example, if the investigation is targeting potential financial fraud or securities fraud, then individuals in your company’s finance department may need to be involved in order to supply information to outside counsel. If the investigation is targeting a data security breach or other cybersecurity threat, then the investigation team will need to include information technology (IT) department personnel who are familiar with the company’s IT infrastructure. If the investigation has been triggered by allegations of health care fraud or government contract fraud, then various other internal personnel should be involved as well.
Likewise, in certain cases, efficiencies can be achieved by relying on the company’s in-house legal team. Even in-house attorneys who are not experienced in handling internal corporate investigations will often be able to handle a substantial portion of the legwork, and their inside knowledge of the company’s operations can be critical – particularly in the early stages of your outside counsel’s involvement. However, the investigation should not be handled exclusively by in-house attorneys for various reasons, including the practical matter of maintaining ongoing responsibility for the company’s day-to-day legal needs.
5 Reasons to Hire Outside Counsel for an Internal Corporate Investigation
If your company needs to conduct an internal corporate investigation, hiring outside counsel is the smart way to move forward. Here are five reasons why:
1. Determining Who Should Not be on the Investigation Team
Just as important as – if not more important than – determining who needs to be a part of the investigation is determining who must be excluded from the team. Any individual whose conduct is under investigation or who may have information about the conduct that is under investigation should be excluded. Of course, identifying these individuals may require a certain amount of investigation in and of itself. By hiring outside counsel to initiate the investigation, you can avoid the costly – and potentially embarrassing – mistake of having the alleged wrongdoer involved in the investigation of his or her own alleged misconduct.
2. Interviewing Internal Employees
During an internal corporate investigation, information will generally be acquired through a variety of different means. One of these means is interviewing internal employees. Generally speaking, when an employee needs to be interviewed regarding alleged misconduct, the interview should not be conducted by a co-worker. Instead, the interview should be conducted by outside counsel. Not only does this avoid a host of potential issues in the realm of corporate culture and employee relations, but it also ensures that the investigation will be conducted by an attorney who is fully informed about the scope of the investigation and the specific purpose (or purposes) of the interview.
3. Experience Structuring and Overseeing Internal Corporate Investigations
When the need to conduct an internal corporate investigation arises, all aspects of the investigation need to be handled properly. Any shortcomings can render the entire process futile; and, in some circumstances, they can even enhance the company’s potential liability exposure. As a result, when it comes to structuring and overseeing the investigation, experience matters. An outside attorney who routinely handles internal corporate investigations will be able to take swift and decisive action with your company’s immediate and long-term best interests in mind.
4. Establishing the Investigation’s Independence
In many respects, establishing independence is the single most-important reason to hire outside legal counsel to conduct an internal corporate investigation. Any possible implication of bias can threaten the investigation’s efficacy; and, if plaintiff’s lawyers or federal authorities begin questioning the legitimacy of the investigation, other questions are sure to follow. By engaging experienced outside legal counsel, your company can demonstrate its commitment to uncovering the truth without compromise, and you can avoid any complaints about the investigation being conducted by individuals who had their own self-interests in mind.
5. Handling Post-Investigation Matters
In an ideal scenario, an internal corporate investigation will reveal no wrongdoing, and the company will be able to resume business as usual. Unfortunately, while does happen sometimes, it is far more common for there to be post-investigation issues to resolve. By choosing a law firm that handles corporate investigations and federal defense, you can rely on your outside counsel to begin building a defense strategy while also managing the investigation, and your outside counsel can take appropriate responsive action as soon as it makes sense to do so.
5 Considerations for Choosing Outside Investigation Counsel
When engaging outside counsel for an internal corporate investigation, there are several considerations that should factor into your choice of law firms. Some of these considerations include:
- Experience Handling Internal Corporate Investigations – First and foremost is experience handling corporate investigations. There are many aspects of these investigations that make them unique from other legal matters, so you need to choose a law firm that has particular experience in your company’s area of need.
- Subject-Matter Knowledge Relevant to Your Business – You also need to handle a law firm that has significant experience handling substantive matters that are relevant to your company’s business operations. From government contracting to health care, and from securities fraud to employment discrimination, there are a broad range of issues that can necessitate internal corporate investigations.
- Round-the-Clock Availability and Accessibility – The sooner you can resolve an internal investigation, the better. As a result, when choosing outside counsel, you need to be confident that your attorneys will be available on an as-needed basis. You also need to choose a law firm that prioritizes accessibility and open client communication.
- Federal Disclosure, Enforcement, and Litigation Experience – Due to the potential for an internal corporate investigation to be followed by litigation or government enforcement action, it is necessary to choose a law firm that handles these matters as well. Depending on the industry in which your company operates, you may need outside counsel who are familiar with voluntary reporting and disclosure requirements as well.
- Proven Results in Internal and Government Investigations – Finally, you want to choose a law firm that has a demonstrated history of protecting its clients’ interests during internal investigations and government enforcement matters.
Oberheiden P.C. is a federal compliance and defense law firm that represents companies in internal corporate investigations nationwide. Our attorneys have handled hundreds of investigations on behalf of private-sector clients, and several of our attorneys previously spent decades overseeing federal civil and criminal investigations as prosecutors with the U.S. Department of Justice (DOJ). Our corporate investigations team includes several seasoned investigators and subject-matter consultants as well – many of whom are former federal agents – and this allows us to offer efficient, comprehensive, and full-service representation for companies facing a broad range of federal allegations.
Speak with a Senior Attorney at Oberheiden P.C.
To discuss engaging Oberheiden P.C. to handle your company’s internal investigation, please contact us for a free and confidential case assessment. Call 214-692-2171 to speak with one of our senior attorneys directly, or send us a message online and we will respond promptly.