Planning and being organized for internal investigations is essential as internal investigations are destined to be very multifaceted. When companies make the decision to proceed with an investigation, whether internally or with outside counsel, it’s important to recognize that disclosure decisions are intricate where the possibility that civil or criminal litigation must be continually considered.
With outside counsel, experience reveals that there is a greater likelihood of being able to maintain confidentiality during the investigation. It’s vital that a plan must be in place that defines the objectives and the scope. Regularly, outside counsel takes the lead to preserve attorney-client as well as work product privileges.
Those who are non-attorneys, defined as internal/external experts, internal audit, security, management and human resources, also play a role. It’s important that a protocol, lines of reporting and supervision be established, and separate representations issues addressed.
Anticipating possible problems is key. Work product doctrines and attorney-client privilege doctrines need to be explained in layman’s terms. The employee, who informed under certain circumstances, should be aware that the company has the option to choose to disclose to anyone any information obtained from the investigation. It’s imperative that employees be given the opportunity to ask questions regarding the process.
