When corporate misconduct comes to light, corporations often must conduct an internal investigation to effectively assess potential liability, craft remediation, and engage with regulatory scrutiny. Companies rely on investigative findings in advocating for DOJ, SEC, and other regulators to forgo charges or enforcement.
Cooperating with regulators, however, requires caution. Government investigators increasingly rely on the legwork of corporate investigations. But when company investigators fail to maintain sufficient independence, the company risks becoming embroiled in criminal litigation involving individual wrongdoers, waiving attorney-client privilege and work-product protections, publicly exposing confidential details of its investigation, and, in extreme circumstances, potentially being labelled a member of the government’s prosecution team subject to expansive disclosures. Corporate counsel must remain vigilant of these risks and maintain appropriate guardrails to protect against them.
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