This is practical advice for the civil practitioner whose client organization becomes involved in a grand jury investigation or other official inquiry. This advice applies to an in-house general counsel of a large corporation or an outside practitioner to smaller companies, labor unions or medical practice groups. You as counsel should be aware there is a lot of hype on the subject promoted by firms that have turned conducting internal investigations into a cottage industry. There are many types of official investigations, but as grand jury investigations are the most common, I will use those as a model for this discussion.
The circumstance usually begins with the service of a subpoena for documents or a subpoena for an officer for testimony. In 90 percent of the cases, this usually means some sort of trouble for the organization, its officers, or other organizations they deal with. Your job as counsel to the organization is to find out what the grand jury is investigating, and how your client organization is involved. At this point, hire an experienced white-collar lawyer to meet with the prosecutor. I emphasize that you should select someone who has experience in dealing with grand jury investigations. Many criminal lawyers have only passing knowledge of grand jury procedure, and you need someone who is regularly involved in this practice. There is a difference in federal and state grand jury practice, so make that selection accordingly. An experienced white-collar attorney will know what questions to ask the prosecutor to learn where the investigation is going and where your client organization fits in. Even if the prosecutor is not forthcoming, the attorney can determine sufficient information from the prosecutor’s nonresponses to provide guidance. It has been my experience that prosecutors will provide more information to an experienced attorney, much like a skilled tennis player avoids playing with a duffer.
Once you have the information from the prosecutor, then proceed to find out the real story within your client organization. The information from the prosecutor may be incomplete, or wrong in certain respects. This inquiry may be somewhat difficult to promote, as executives, especially in smaller organizations, are often reluctant to investigate their own organization for privacy or inside political purposes. Do not be deterred by such reluctance. If there is some irregularity or wrongdoing, you may be able to solve or minimize it. Do not attempt to conduct such an inquiry yourself. I have seen many matters that were made worse by a civil practitioner proceeding on his or her own. You may ask yourself, should you have been aware of some of the circumstances? Could you have done more? Avoid this introspection. You are too close to the personnel to be objective. A good white-collar attorney can conduct an internal investigation and give you sound advice.
At this point, you as the client’s representative must engage a good investigation counsel. Beware that there are many firms that offer this service that utilize too many lawyers, and arrive with multiple partners and associates armed with laptops. Many hold themselves out as private prosecutors to find the wrongdoers and cast them out. Keep in mind that your organization is looking for legal advice and needs help and protection. If there are persons who have committed misconduct, it can be handled in a professional manner. Beware of the private prosecutors.
You as the client representative have a right to know how the investigation will be conducted. Experienced investigative counsel will interview all the relevant personnel and examine all the relevant documents. They will most likely go beyond the area outlined by the prosecutor. Skilled investigative counsel do not arrive as hard-nosed detectives. A good questioner conducts a one-on-one examination of a witness, and does not proceed as if it is a formal deposition. He or she will make handwritten notes of the interview. I do not believe the examiner or attending associate should use a laptop during the interview. It affects the face-to-face atmosphere necessary for an interview, and adds an unnecessary formality. A good examiner may approach a subject in a roundabout manner. A laptop transcription will contain all the lead-up verbiage. Another reason for avoiding laptop transcriptions is that the lawyer’s notes of the interview are considered opinion work-product and are given the highest form of protection against discovery in civil lawsuits or grand jury investigations. An associate’s laptop transcription will be nearly word for word, and may not qualify as opinion work-product. Good attorney’s notes will include question marks, underlines and side comments to reflect the attorney’s thought process. I make these comments to emphasize that you as the client representative have a say in how the investigation will be conducted and should make that known.
At the outset, you should draft an engagement letter for the investigation counsel in which you describe the project. You are seeking legal advice, and you should spell out what advice you are seeking and how you want to receive it. There is a popular notion that internal investigations are to be public. Not so. I am leery of public reports. The report should be delivered to you and the client in confidence. You and the client will decide how to handle the report. You and the client may reject some of the attorney’s advice. You may ask for further investigation. You may determine that other areas should be covered, or that the legal conclusions are not supported by facts. These are areas that are between you and investigation counsel. If your organization must take some steps as a result of the investigation, and these actions become public, you need only state changes are being made as the result of the investigation. Do not make the report public. There are those situations where a public company needs to make a public announcement that it is conducting an internal investigation. Even in this situation, the report should be made in confidence to the client for review as described above. Do not allow yourself to get painted into a corner and feel the report must be released to the public before you and the client review it. This is a disservice to the client.
Internal investigations have become a part of commercial life. There is a great deal of hype promoted by some law firms about the process and a great deal of incorrect information in the business community, the media and the public. You as the counsel to your organization should ensure you have the correct information before embarking on an internal investigation for your client. •
Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of  Eastern District Federal Practice Rules, Annotated (Gann Law Books). He can be contacted by email at firstname.lastname@example.org. Vaira has a blog devoted entirely to Eastern District practice at http://petervaira.wordpress.com.