The case of United States v. Norris, demonstrates the importance of clearly defining in a consistent manner, to an entity under investigation, its executives and employees, as well as to investigating government agencies, precisely who outside counsel is representing, as well as the scope and duration of that representation. Once the scope of the representation is defined, it should be memorialized in a contemporaneous writing to the corporate entity and in a consistent manner to investigating agencies. If the scope of the representation changes, all interested parties should be notified. The failure to clearly define, communicate and memoralize the scope of the representation can lead to unanticipated adverse consequences for the entity as well as executives and employees who are interviewed by outside counsel during the internal investigation.
In April 1999, the Antitrust Division initiated a federal grand jury investigation into price fixing by companies engaged in the sale of carbon and engineered graphite products. That investigation focused on, among other companies, the Morgan Crucible Company (Morgan). Morgan is a publicly held corporation, based in the United Kingdom, which sells carbon brushes around the world.