When dealing with a government inquiry, one of the goals of many internal investigations is persuading the government that the matter was carried out thoroughly and independently so authorities don’t have to repeat an investigation and in turn prolong any disruption and cost to the company. That means ensuring a sound investigation from the outset.
“Losing your objectivity may be the single worst thing you can do,” says Valecia McDowell, a member at Moore & Van Allen. “You could have the government right behind you and reach a completely different conclusion, only because you weren’t objective enough to ask the right questions. And had you asked those questions, you too would have reached a different conclusion.”
A May 22 Washington Post article called into question how impartial a self-investigation can be, but Peter Spivack, co-leader of the investigations, white-collar and fraud practice area at Hogan Lovells, points out the government doesn’t accept self-reported results without doing its own careful, thorough analysis. “One thing that article seemed to presuppose is that you would turn over the report and the government would just rely on it and do nothing itself,” he says. “It’s given a hard and thorough review.”
Companies can’t afford to carry out insincere investigations led by outside counsel not looking for bad facts as much as they minimize or ignore the bad facts, where the investigation seems to be done to get a clean bill of health without actual hard digging.
“If companies are uncooperative about the investigation, the old saying applies that it’s not the crime, it’s the cover-up,” says Peter Zeidenberg, a partner at DLA Piper. “Evidence of that can make things far worse than just coming clean and turning it over.”
Finally, if members of senior management are a focus of the investigation, the board or a special committee may have to oversee the investigation to maintain true impartiality. If the legal department reports to senior management in that scenario, in-house lawyers may have to diminish or eliminate their role in the investigation.