Protecting Your Interests During Internal Corporate Investigations
Does your company want to interview you as part of an internal investigation into foreign corrupt practices or some other alleged wrongdoing? I am Solomon L. Wisenberg, a corporate internal investigations defense attorney, and I represent individuals who are asked to cooperate with their company’s internal investigations of suspected wrongdoing.
Common Issues Investigated by Corporations
Typical issues under investigation by your company may include:
- Accounting fraud, securities fraud or tax fraud
- Corporate misconduct
- Sarbanes-Oxley compliance
- The Foreign Corrupt Practices Act
- Employee fraud or embezzlement
- False claims to the government
Avoid Personal Criminal Exposure With Experienced Legal Representation
At the present time literally scores of publicly traded companies are conducting internal inquiries into possible violations of The Foreign Corrupt Practices Act (FCPA) and other business crimes. To avoid your personal exposure to federal criminal charges, such as the FCPA, it is vital to have your own lawyer advising you during your company’s internal investigation process.
Most companies will allow you to have your own white collar lawyer present during an interview conducted by the company’s attorney or auditor. If they won’t allow this, it is a sure sign of trouble — for you. I fully understand the possible criminal consequences for our clients of participating in internal corporate investigations. I can help you avoid potential mistakes that can result in criminal charges.
Two Important Questions to Ask Yourself
If you have been asked by the company’s lawyer or another party to participate in an internal corporate investigation, there are two questions you need to answer immediately:
1. Should I participate in the investigation?
Failure to talk to investigators may cost you your job. Participating in an investigation may lead to criminal prosecution and incarceration in federal prison. A white collar criminal defense lawyer can help you assess your risks, rights and options.
2. Do I need to hire my own attorney?
If you decide to speak to investigators, you should have your own attorney by your side, even if you did nothing wrong. The company’s in-house attorneys may tell you that anything you say in the interview is privileged information. What they sometimes gloss over is that the privilege belongs to the company, not you. The company can waive its attorney-client privilege at any time.
They May Give You Up to Protect Themselves
You usually have no recourse if the company, in an attempt to protect itself from prosecution, decides to waive its privilege and give federal prosecutors access to all the information from the corporate internal investigation, including notes of your company attorney’s interview with you. But if you are represented by your own personal white collar attorney during the company interview, you can often limit your potential exposure.
For example, your personal attorney may be able to enter into a joint defense agreement with the company, which will keep the government from accessing the company attorney’s notes of your interview. Your personal attorney will also be able to guard against vague or imprecise questions posed by the company’s lawyer. Such questions often lead to confusing answers which can be misinterpreted.
Finally, your personal attorney will create a separate set of interview notes. In this way, the company attorneys will not be the only witnesses to what you said — someone in your corner will be there in the event of a factual dispute.
If your company is looking for a scapegoat in cases of theft, corporate governance issues, or other matters, don’t let it be you.
What You Need to Know About Working With Corporate Counsel
If your company’s attorney interviews you as part of an internal corporate investigation, does the attorney represent you as well? The answer is almost always no. The company attorney conducting the interview should tell you that: 1) he or she represents the company; 2) the interview is privileged; 3) the privilege belongs to the company; and, 4) the company has the option of waiving the privilege at some time in the future. In fact, most authorities agree that the company attorney is ethically obligated to tell you this.
If this is all that the company attorney tells you, however, you might go into your interview with a false sense of security. Why? Because, what the attorney has not told you, in the above example, is that, in the current white collar climate, the company is more than likely to waive its privilege and turn over the results of the internal investigation, including a summary of your interview, to federal prosecutors.
You should obviously be aware of this before deciding whether to participate in an interview which is part of an internal corporate investigation. Knowing the stakes involved, you can then decide, in consultation with your own white collar lawyer, whether (and on what terms) to participate in the interview. Your failure to participate might result in the company firing you, but that may be preferable to increasing your criminal exposure through an interview with company counsel who has become, in effect, an agent for the government.
Contact an Employee Fraud Defense Lawyer
Don’t let yourself be a scapegoat because of misplaced trust in your superiors. Feel free to contact me, white collar criminal defense lawyer Solomon L. Wisenberg, for help in determining how to handle your company’s internal investigation. From the Washington, D.C., offices of Nelson Mullins Riley & Scarborough, LLP, I represent clients throughout the U.S.