Company and individuals have different interests
When a company investigates possible wrongdoing, its lawyers represent the company, not its officers or employees. Employees interviewed in an internal investigation are usually told this at the start, and what they say may later be shared with the government if the company decides to cooperate. Executives who may be personally exposed often need their own counsel. Federal prosecutors' corporate enforcement policies reward companies that come forward and cooperate, which can push a company toward sharing what it learns. Board members, auditors, and insurers may each need to be informed at different points, and the timing of each notice deserves thought. That is why the people involved should understand early where their interests may diverge.
Running the investigation
A sound internal investigation begins with a clear mandate, a decision about who oversees it, often a board committee in serious matters, and a document preservation notice. Collecting email, chats, and devices should be done in a way that keeps the data intact and defensible. Interviews conducted by counsel, with careful notes, help preserve privilege, though privilege can be lost if findings are later disclosed. Forensic accountants are often retained through counsel when the questions involve money flows. Employees should not be told to stay silent with regulators. Destroying or altering records once an investigation is expected can itself be a federal crime.
If you are an individual
If you are asked to sit for an interview, ask who the lawyers represent and whether you should have your own counsel. You have choices about whether and how to participate, but refusing to cooperate with your employer can have employment consequences. Do not delete messages or coordinate accounts with coworkers. Answer truthfully if you speak, and keep in mind that the interview notes belong to the company. We advise individuals and companies through each stage, from the first interview to any contact from prosecutors or regulators.
