Our previous articles stressed the importance of maintaining confidentiality throughout investigations while carefully working to uncover the details of potential fraud, regulatory violations or other corporate misconduct. Now, we will conclude our overview of a dozen “Dos and don’ts” of internal investigations by focusing attention on whether and when to report—to the media, audit committee, executives, or the government—the results of your investigations, and what details to divulge.
11. Do Be Prepared When “60 Minutes” Calls
When something smells enough to prompt an internal investigation, you must prepare your company for the day the media catches a whiff. When formulating statements to the media, the most important objective is to avoid harm to the legal status of your company, its officers, and stakeholders. Comments by a corporate spokesperson may later be used in court as admissions of the company, or damaging impeachment material against the speaker. Fundamentally, your message must project honesty and communicate the fact that the company is committed to investigating the facts or allegations, and making amends if so warranted. “No comment” is usually the wrong response as it allows the media to spin the story. Accordingly, a concise, honest message that avoids speculation, unnecessary details, and unsubstantiated facts minimizes the risk of negative publicity, and the risk that the statement will later be used against the company by a prosecutor or civil plaintiff.
Often, it is worthwhile to engage a media relations consultant to assist in crafting your message, and managing relationships with the media. In order to minimize the risk of conflicting statements, the best practice is to assign responsibility for responding to media inquiries to one individual such as an outside counsel, an executive who is not the subject of the investigation, or the consultant.
12. Don’t Report Before You’re Ready
Do not report results of any investigation before you have gathered sufficient information to make an accurate and meaningful report. Do not report outside of the company until you have satisfied proper internal reporting protocol such as reporting to an audit committee or certain executives. The timing and method of communication with the government may vary depending on your goals. Consider whether early self-disclosure is appropriate to prevent harm to the public or to preempt a whistleblower. Most often, however, fully investigate the alleged wrongdoing first, and respond to inquiries from the government after satisfying any internal reporting obligations.
To ensure thorough and accurate reporting after the conclusion of an investigation, have the investigator prepare an oral or written report. The report should summarize the background of the investigation, describe the method of investigation, discuss the evidence, apply the evidence to the applicable law, and provide remedial measures. There must be careful consideration as to whom the report shall be delivered.
In the event you choose to create a written report, consider whether and how to disclose its contents to the government. Tendering a written report to the government will likely result in a waiver of the attorney-client and work product privileges, and render it discoverable to civil plaintiffs. Accordingly, it is often preferable to provide the government an oral report or an attorney proffer through which the corporation discloses facts with less risk of waiving privileges.
In conclusion, inside and outside counsel must be equally, if not more deliberative, when it comes to managing communications and information flow about the results of an investigation, as they are with respect to gathering the facts themselves. Diligence in the investigative process allows management to learn the facts and make decisions, but the fate of the company ultimately rests upon when and how the facts are communicated, and to whom.