Navigating "Outsourced" Government Investigations
ABA Section of Litigation
Commercial & Business Litigation Committee
White-Collar Crime Litigation Subcommittee
Wednesday, September 02, 2020
10:00-11:00 AM PT | 11:00 AM-12:00 PM MT |
12:00-1:00 PM CT | 1:00-2:00 PM ET
Program Description:
Conducting an internal investigation is generally regarded as a best practice for companies that, through their compliance processes or otherwise, become aware of potential wrongdoing and exposure to criminal or regulatory enforcement. The benefits of internal investigation include, assuming the company has involved outside counsel, cloaking the investigation with the attorney-client privilege and work product protection. This gives the company flexibility to choose whether to “uncloak” its investigation and share its findings with law enforcement or regulators if doing so might inure to the company’s benefit, such as by garnering credit against potential government action based on the company’s cooperation.
While executives and employees usually agree to be interviewed as part of an internal investigation, the company can compel recalcitrant interviewees by leveraging their continued employment in exchange for their participation. However, because interviewees are (or should be) advised that the interview is cloaked by the company’s attorney-client privilege, they have some assurance that their candor will not be used against them.
But what if the company chooses to cooperate with the government from the very outset? What if the investigation is carried out by the company’s attorneys, but is actually directed by prosecutors? In that case, is the investigation really “internal”? These were the questions addressed in the recent case of United States v. Connolly, in which the United States District Court for the Southern District of New York held that an employee’s Fifth Amendment privilege against self-incrimination is implicated when the employee is forced to choose between being fired or sitting for an interview with a company attorney who will be feeding information to the government.
This Roundtable, led by the co-chairs of the White-Collar Crime Litigation Subcommittee of the Commercial & Business Litigation Committee, will discuss the potential implications of Connolly on the conduct of internal investigations, including the decision whether, and to what extent, to cooperate; how to handle executive and employee interviews; and when to secure independent counsel for involved individuals and how Connolly could affect that representation, as well as potential offense uses of Connolly. This presentation will be of interest not only to white-collar criminal defense attorneys, but to in-house counsel and civil practitioners of all experience levels who represent business interests.
Panelists:
Melissa Ho - Polsinelli; Phoenix, Arizona
Andrew Fox - Polsinelli; Phoenix, Arizona
Zachary Greene - Miller & Martin; Chattanooga, Tennessee