In an article published on Bloomberg Law’s White Collar & Criminal Law News section, Bass, Berry & Sims attorneys John Kelly, Lindsey Fetzer and Abby Yi offered insight on providing effective representation when defending an executive in a government investigation.
The Department of Justice (DOJ) continues to encourage corporations to identify and hold accountable individuals for criminal conduct. Combined with the continuing rise of individual enforcement actions brought by the DOJ, companies are strongly incentivized to investigate and identify individuals substantially involved in any misconduct. As a result, the interests of a company and certain of its employees may no longer align.
In these instances, corporate executives will often need counsel separate from that of the company. In getting started, the attorneys offered the following steps to guide counsel’s path through preparation:
- Discussion with company counsel. If the company has agreed to indemnify your client, meeting with company counsel is a crucial first step to gather background information, inquire into parallel internal investigations and understand your client’s potential involvement.
- Meet with your client. This may seem straight forward, but you should assume your client has no familiarity with government investigations and will need the full debrief (investigation process, your role as counsel, your relationship with company counsel, etc.). Understand your client’s role and how they fit into the investigation, then determine whether cooperation is mandated by the company or warranted and consider the benefits against the potential issues that may arise as a result of the indemnification.
- Consider whether to engage in an initial discussion with the government. Determine whether to contact the enforcement agency proactively introducing yourself as counsel – this depends on the investigation, your client’s potential exposure and any prior discussion between company counsel as it relates to your client.
Just as crucial as the preliminary steps is to develop facts and become a “subject-matter expert,” which includes learning the who, what, where, when and how of the alleged conduct through review of documents, client meetings, independent research and possible conversations with counsel for other individuals.
Should the company request an interview with your client in its internal investigation, try to get a glimpse of the questions and documents intended for review ahead of time, then prepare your client accordingly. It is also possible the enforcement agency might request an interview as well, depending on the “relative culpability” of the client.
These investigations can go one of two ways in the resolution: indictment or declination of prosecution. “When considering potential resolution options,” the attorneys advise, “counsel should inform the client of future obligations as required by the resolution,” such as testifying in a trial. Attorneys should also prepare the client for the aftermath of the resolution, such as the effects on his or her employment and other consequences.
While each investigation is unique, “Representing individuals requires counsel to carefully navigate competing interests and develop a strategy that considers potential exposure, adverse employment consequences and collateral consequences.”
The full article, “INSIGHT: Representing Executives in Government Investigations—You’re Engaged. Now What?” was published on January 28, 2019, in Bloomberg Law White Collar & Criminal Law News and is available online.