When to Bring in Investigative Counsel and Why

Spring 1When should you bring in a true outsider to handle an internal investigation? What about specialized investigative counsel? Jim McGrath, who often writes about the need for specialized investigative counsel, has also pointed out on several occasions that having an independent eye on things is also a plus. However, rarely do we see both questions played out so publicly as is currently going on in the General Motors (G.M.) recall investigation. Indeed, Matthew Goldstein and Barry Meier discussed these  questions in Sunday New York Times (NYT) Business Section article by, entitled “G.M Calls the Lawyers”.

For those of you not familiar with G.M.’s problems, McGrath also wrote about them in his Internal Investigations Blog, in a post entitled “What Did GM Know and When Did They Know It?” McGrath describes the current issues as “the revelation that General Motors is the target of probes by Congress and by the National Highway Transportation Safety Administration over its handling of ignition switch defects in at least six of its popular automobiles. Failures in these switches may have resulted in as many as thirteen deaths and seemingly point to quality control failures at the automaker.” Others have estimated the death totals much higher for this defect. And, as McGrath notes, the key question is ‘what did GM know and when did they know it’?

Interestingly G.M. has hired two law firms to handle the investigation. One is King & Spalding, which handled much of the product liability litigation over the alleged defect and the second is Jenner & Block. In the NYT article, a prominent plaintiff’s lawyer, Lance Cooper, who fought GM and King & Spalding on this product liability litigation noted the obvious when he said, “They are part of the story.” By this he meant that “King & Spalding’s switch from a fierce defender of G.M. to a potential inquisitor into the company’s actions may also pose a conflict. For one, some of the firm’s lawyers may have to ask their own colleagues if they advised G.M. about whether to recall the vehicles at the time the Melton case was settled.”

More importantly for G.M., the retention of “outside counsel in these cases is part investigation, part public-relations gambit and part legal strategy. In most cases, the goal isn’t to publicly flog a company or its top executives, but rather to limit damage to an institution’s reputation or to contain the financial harm to shareholders of a publicly traded company. And it does so under the protection of the attorney-client privilege. From the point of view of the company, a well-done internal investigation can shape the accepted story of what happened — and produce findings that allow the company to negotiate for lower penalties from prosecutors or regulators down the road.” But, more importantly, to “achieve those ends, the law firms conducting the investigations must be viewed as forthright and uncompromised. In this respect, some critics have already questioned G.M.’s choices.”

The NYT quoted another lawyer, William McLucas, a partner at WilmerHale, who said, “If you are a firm that is generating substantial fees from a prospective corporate client, you may be able to come in and do a bang-up inquiry. But the perception is always going to be there; maybe you pulled your punches because there is a business relationship.” This is because if “companies want credibility with prosecutors and investors, it is generally not wise to use their regular law firms for internal inquiries.” Another expert, Charles Elson, a professor of finance at the University of Delaware who specializes in corporate governance, agreed, adding, “I would not have done it because of the optics. Public perception can be affected by using regular outside counsel.””

Adam G. Safwat, a former deputy chief of the fraud section in the Justice Department, said that the key is “Prosecutors expect an internal investigation to be an honest assessment of a company’s misdeeds or faults, “What you want to avoid is doing something that will make the prosecutor question the quality of integrity of the internal investigation.”” The aforementioned Jim McGrath was also interviewed for the article. He said, “A shrewd law firm that gets out in front of scandal can use that to its advantage in negotiating with authorities to lower penalties and sanctions. There is a great incentive to ferret out information so they can spin it.”

All of these concerns are equally valid in the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act investigation context. But they are layered upon the Fair Process Doctrine. This is because procedural fairness is one of the things that will bring credibility to your Compliance Program. This Doctrine generally recognizes that there are fair procedures, not arbitrary ones, in a process involving rights. Considerable research has shown that people are more willing to accept negative, unfavorable, and non-preferred outcomes when they are arrived at through processes and procedures that are perceived as fair. Adhering to the Fair Process Doctrine in your Compliance Program is critical for you, as a compliance specialist or for your Compliance Department, to have credibility with the rest of the workforce.

In internal investigations, if your employees do not believe that the investigation is fair and impartial, then it is not fair and impartial. Further, those involved must have confidence that any internal investigation is treated seriously and objectively. I have recently written about several aspects of internal investigations, in order to emphasize how to handle internal whistleblower complaints in light of the Dodd-Frank implications. One of the key reasons that employees will go outside of a company’s internal hotline process is because they do not believe that the process will be fair.

This fairness has several components. One would be the use of outside counsel, rather than in-house counsel to handle the investigation. Moreover, if a company uses a regular firm, it may be that other outside counsel should be brought in, particularly if the regular outside counsel has created or implemented key components that are being investigated. Further, if the company’s regular outside counsel has a large amount of business with the company, then that law firm may have a very vested interest in maintaining the status quo. Lastly, the investigation may require a level of specialization that in-house or regular outside counsel does not possess.

Living in Houston, this all played out in disastrous results during the Enron scandal. Near the end of Enron’s run, its regular outside counsel, Vinson & Elkins, investigated questionable accounting practices at Enron. As the NYT article noted, “The firm’s investigation is viewed as an utter failure or a corporate whitewash. The review essentially gave Enron a clean bill of health just months before it collapsed in one of the biggest accounting frauds of all time. In 2006, the law firm paid $30 million to Enron’s bankruptcy estate to resolve claims that its actions had contributed to the energy company’s demise.”

All of this means, your company needs to get it right in the hiring of outside counsel to handle an investigation. As McGrath wrote at the end of his blog, “the Jenner and King people will have to make like Howard Baker and ask what the president – or other ranking person with reporting authority to NHTSA – knew and when they knew it. Because the cover-up is usually worse than the underlying wrong and this one could cost GM $35 million and its reputation.” The NYT article ended with the following, “The best internal investigations are the ones that don’t receive much media attention. A company deals with a problem quickly, and if there’s something to report to authorities, the company tends to be treated leniently for its forthrightness.” Amen.

Filed under: Best Practices,Bribery Act,Chief Compliance Officer,compliance programs,Fair Process Doctrine,FCPA,Investigations,Jim McGrath,New York Times — tfoxlaw @ 12:01 am
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© Thomas R. Fox, 2014

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