Page 35 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

The Independent Committee should retain Investigatory Counsel who is highly qualified and
credible. In many but not all cases, this is best accomplished by retaining counsel who has not had a
significant prior relationship with the company and/or its senior management.

The Independent Committee should retain the Investigatory Counsel in writing. Investigatory
Counsel’s engagement letter should state the allegations under review, the scope of the inquiry,
and make clear that Investigatory Counsel is to advise the Independent Committee of its and the
company’s legal rights and obligations, as well as its potential liabilities.

The scope of the Investigatory Counsel’s engagement may be expanded in appropriate
circumstances, but that expansion should take place only at the direction of the Independent
Committee and should also be confirmed in writing.

The Investigatory Counsel should be instructed to conduct an investigation designed to
discover essential facts about the underlying allegations of wrongdoing, including using such
investigative, technological, and professional techniques of which they are capable.

Investigatory Counsel’s investigation should stay within the scope as dictated by the
Independent Committee. If, however, Investigatory Counsel learns of potential wrongdoing that falls
outside the originally defined scope of the investigation, then Investigatory Counsel should bring
such conduct to the attention to the Independent Committee. The Independent Committee then, in
consultation with Investigatory Counsel, can decide whether to expand the scope of the investigation.

The Independent Committee and Investigatory Counsel should also agree upon specific
reporting procedures and protocols for documenting the investigation.

The Independent Committee should also determine whether and to what extent Investigatory
Counsel may waive the company’s attorney-client privilege or its own work-product protections in its
dealings with government or other third parties. The waiver of these protections is a major corporate
decision that requires full and frank discussion of the benefits of the privileges and work-product
protections and the impact of a waiver on prosecutorial, regulatory or other parallel proceedings.

The engagement letter for Investigatory Counsel should make clear that Investigatory
Counsel’s work product, data, and document collection and analysis belong to the Independent
Committee and its retained Investigatory Counsel.

The Independent Committee should authorize the Investigatory Counsel in writing to retain
additional professionals, including forensic accountants, investigators, and public relations advisers,
if necessary.

The experts and any other additional professionals should sign retention agreements that
make clear their engagement is in contemplation of providing assistance for legal advice.

The Independent Committee should carefully consider communicating with affected
employees to notify them of the nature of any prospective investigation, the possible need for
witness interviews, the ability of the company to recommend counsel for individual employees, the

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