K EY I SSUES AND B EST P RACTICES FOR C ORPORATE I NTERNAL I NVESTIGATIONS by Adam P. Schwartz and Erin J. Hoyle Proper Preparation Corporations today face a strict reg- ulatory environment and close scrutiny Corporations often As with any matter, begin by taking surrounding corporate activity. Public time to understand the background of the hire outside counsel and private companies face the potential investigation, including (i) the company; to conduct an internal of not only governmental investigations, (ii) the allegations prompting the inves- but also private complaints with sig- investigation into tigation; (iii) the applicable legal frame- ����������������������������������������� compliance issues, ����������������������������������������� ��������������������������������������� or in response in the allegations and their roles in the ��������������������������������������� to allegations of company; (v) the client’s expectations; on compliance issues — whether com- wrongdoing. This and (vi) the law of attorney-client privi- panies comply with the legal obligations article identifies some lege and work product protection. and ethical practices applicable to their key issues and best Maintaining the attorney-client businesses and industries. To prevent practices for counsel privilege and work product protection or mitigate the risks associated with this conducting this type is critically important to the success environment, corporations often appoint of an internal investigation. Counsel’s of investigation. outside counsel to conduct an internal ������������������������������������������ investigation of any potential or active protected by the attorney-client privilege, 1 compliance issues. and the documents counsel creates in Participating in an internal inves- the course of the investigation are pro- tigation can be daunting to the lawyer tected by work product protection. 2 To who is more familiar with the structured, protect against an inadvertent waiver, the rule-based arena of litigation than in client and counsel should: the unfamiliar tasks of investigatory document collection, interview memo- �� Provide Upjohn warnings at all randums, Upjohn warnings, and investi- witness interviews and instruct gation report drafting. There are no easy witnesses to keep the discussions precedents or treatises to research, and ������������ 3 no uniform rules or procedures to follow. �� Ensure that any non-attorneys Instead, internal investigations offer new involved in the investigation work legal issues and tasks that an inexperi- at the direction of designated enced practitioner has yet to encounter. attorneys. 4 The following tips should assist attorneys in becoming valuable assets to internal �� Include legends on communications investigations. and documents, including witness interview memoranda, indicating that they are protected by the attorney- client privilege or work product protection where applicable. 5 ADAM P . SCHWARTZ is a shareholder with Carlton Fields. He concentrates his practice on white ABOUT collar criminal defense, False Claims Act (Qui Tam/Whistleblower) defense, and health care fraud and abuse matters. He represents individuals and corporations in internal investigations, securities THE AUTHORS... and accounting fraud, asset forfeiture, real estate and mortgage fraud, defense contractor fraud, money laundering, corporate compliance, grand jury practice and procedure, and complex civil fraud defense. Prior to joining the firm, Mr. Schwartz prosecuted money laundering and asset forfeiture matters as an Assistant U.S. Attorney with Eastern District of New York. He is a graduate of the Temple University Beasley School of Law. ERIN J. HOYLE is an associate with Carlton Fields, Tampa. Her practice focuses on securities and business litigation, the defense of False Claims Act allegations, and corporate internal investigations. Ms. Hoyle advises public and private clients on corporate governance matters, including issues relating to director independence, fiduciary duties, and director and officer liability. She also advises educational institutions on matters including employment issues, records retention, student safety, administrative best practices, and compliance. Ms. Hoyle is a member of the firm’s Data Privacy and Cybersecurity Task Force. She is a graduate of the Stetson University College of Law. TRIAL ADVOCATE QUARTERLY – WINTER 2018 - 12 -
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