Page 25 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

during the employee interviews. The risks of having in-house or regular outside counsel present at
interviews include inadvertently chilling the employee’s willingness to be forthcoming and having the
employee incorrectly perceive that she is represented personally by company counsel. The presence
of in-house or regular outside counsel for the company may also implicate concerns regarding the
independence of Investigatory Counsel. At the very least, the issue should be thoroughly vetted
with the Independent Committee before counsel other than Investigatory Counsel takes a seat at the
investigating table.

In some instances, it may be necessary for the company to pay for separate legal
counsel for employees who are being interviewed and may have – or may appear to have – interests
adverse to the company. However, depending upon the company’s bylaws, it should not be
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necessary to suggest separate counsel until such adversity becomes sufficiently clear or until an
employee requests separate counsel. An employee may on her own choose to seek the advice of
counsel and ask that counsel be present for the interview. Absent exigent circumstances, such as the
government threatening extreme action on a short timetable, a company should not refuse to grant
such a request for counsel. However, as indicated earlier, companies should advise employees that
failure to cooperate timely – which includes fully submitting to interviews by Investigatory Counsel –
may result in adverse employment consequences, including dismissal.

Often, an unrepresented employee will ask just before or during an interview
whether she needs to consult counsel, or if she retains counsel, whether the company will pay for
such counsel. Investigatory Counsel should be especially wary of this situation. Under these
circumstances, Investigatory Counsel should remind the witness that counsel does not represent her
and that if she wishes to speak to her own counsel, the Investigatory Counsel would be willing to
adjourn the interview for a reasonable time to allow such consultation, and consider the company’s
indemnification of the employee’s costs of counsel and advancement of fees and expenses. As
discussed above, advance preparation for such contingencies should include consultation with
the Independent Committee at the outset of the engagement regarding the scope of the company’s
obligations to indemnify and advance fees to categories of current and former directors, officers, and
employees.

The Independent Committee should also decide whether Investigatory Counsel will
make documents available to employees and their counsel for review before conducting interviews.
Absent special circumstances such as valid concerns of possible witness tampering, obstruction of
justice, other evidence of attempts to disrupt the integrity of the internal investigation, or an inability
in advance to retrieve and review voluminous documentation, Investigatory Counsel generally should
not interview witnesses before they have had a chance to review relevant documents, especially
emails and other communications the witness authored or received. We caution Investigatory
Counsel against interviewing a witness who has not been given an adequate opportunity to refresh
his or her recollection as to prior events by reviewing key documents such as emails. Investigatory
Counsel also should not succumb to pressure from prosecutors or regulators to interview such
witnesses before they have had a chance to review documents. Such a premature interview could

71 See a discussion on employee indemnification and advancement of individual attorney’s fees in Section II. F. One event that can
trigger consideration of separate counsel for an employee is if the government asks to interview that employee. Company counsel might
have a conflict advising the employee whether she “should” agree to such an interview.

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