Legal guidance encourages corporate counsel to refer Rationale: concerned employees to the company’s policies and to advise employees of their right to separate counsel where appropriate. Corporate counsel should nevertheless be careful to avoid going further so as not to violate ethical rules. 5. If in the course of an interview, a XYZ Company When Conflicts Arise. attorney or investigator learns facts that cause the investigator to believe that the interests of the associate and XYZ Company conflict, the associate e.g., unexpectedly implicates herself in criminal wrongdoing, the investigator should suspend or pause the interview and contact the assigned lawyer for further guidance. Even outside the context of joint representations, legal Rationale: guidance suggests attorneys should consider advising corporate employees when counsel believes a conflict of interest currently exists. The situation is a difficult one, however, because XYZ Company could later be faulted for shutting down an interview to avoid learning or confirming bad facts. For these reasons, we believe the XYZ Company investigator should suspend (rather than terminate) the interview and seek guidance from an XYZ Company lawyer about how to proceed. B. Advisements to Subjects/Targets of the Internal Investigation. 1. The use of the terms Consider Policies Defining When Conflicts Exist. and are unique to federal grand jury practice. Generally “target” “subject” speaking, a of an investigation is someone about whom the government “target” has substantial evidence linking the person to the commission of crime. A of an investigation is a person whose conduct is within the scope of the “subject” government’s investigation. A witness is someone who may have relevant background or other knowledge but whose conduct is not the subject of the investigation. terms do not apply with precision to an internal investigation conducted by a corporation. A corporation does not an employee as part of an internal “target” investigation. However imperfect they may be, these terms nonetheless provide a way to think about how to categorize employees who are interviewed as part of an internal investigation. As discussed, if a corporation seeks cooperation credit, it must disclose relevant facts concerning individual wrongdoers. This requirement introduces an adversarial quality a potential conflict when interviewing – – potentially culpable employees. XYZ Company should evaluate whether to modify its policies to describe the circumstances when an individual associate is deemed to be a subject of an internal investigation. A policy directing XYZ lawyers and investigators to Rationale: categorize potentially culpable employees facilitate early decisions
Rationale: Legal guidance encourages corporate counsel to refer concerned employees to the company’s policies and to advise employees of their right to separate counsel where appropriate. Corporate counsel should nevertheless be careful to avoid going further so as not to violate ethical rules. 5. When Conflicts Arise. If in the course of an interview, a XYZ Company attorney or investigator learns facts that cause the investigator to believe that the interests of the associate and XYZ Company conflict, e.g., the associate unexpectedly implicates herself in criminal wrongdoing, the investigator should suspend or pause the interview and contact the assigned lawyer for further guidance. Rationale: Even outside the context of joint representations, legal guidance suggests attorneys should consider advising corporate employees when counsel believes a conflict of interest currently exists. The situation is a difficult one, however, because XYZ Company could later be faulted for shutting down an interview to avoid learning or confirming bad facts. For these reasons, we believe the XYZ Company investigator should suspend (rather than terminate) the interview and seek guidance from an XYZ Company lawyer about how to proceed. B. Advisements to Subjects/Targets of the Internal Investigation. 1. Consider Policies Defining When Conflicts Exist. The use of the terms “target” and “subject” are unique to federal grand jury practice. Generally speaking, a “target” of an investigation is someone about whom the government has substantial evidence linking the person to the commission of crime. A “subject” of an investigation is a person whose conduct is within the scope of the government’s investigation. A witness is someone who may have relevant background or other knowledge but whose conduct is not the subject of the investigation. terms do not apply with precision to an internal investigation conducted by a corporation. A corporation does not “target” an employee as part of an internal investigation. However imperfect they may be, these terms nonetheless provide a way to think about how to categorize employees who are interviewed as part of an internal investigation. As discussed, if a corporation seeks cooperation credit, it must disclose relevant facts concerning individual wrongdoers. This requirement introduces an adversarial quality – a potential conflict – when interviewing potentially culpable employees. XYZ Company should evaluate whether to modify its policies to describe the circumstances when an individual associate is deemed to be a subject of an internal investigation. Rationale: A policy directing XYZ lawyers and investigators to categorize potentially culpable employees facilitate early decisions