Internal investigations raise several ethical issues for in-house counsel, and taking care to stay within ethical rules is very important, Brian Martin, general counsel of KLA-Tencor Corp., told attendees of the second session of Ethics Boot Camp Tuesday at InsideCounsel’s SuperConference.
“In the context of a formal corporate investigation, you always have the threat the government may take an interest and will review the internal investigation. So you should make sure the steps you take are pristine,” Martin said.
Martin said investigative interviews should begin with a discussion of confidentiality and privilege issues. This discussion should cover the following points, according to Martin, who is an InsideCounsel columnist:
- The purpose of the interview is to assist counsel in providing legal advice to the corporation.
- In-house counsel represent the company, not any individual.
- Discussions may be privileged, but the company owns the privilege.
- Counsel may need to disclose information obtained in the interview to management.
- Employees should not discuss the interview with anyone.
Martin noted that while in-house counsel cannot try to dissuade an employee from becoming a whistleblower, they can say it is inappropriate to talk to the media. The employee can be reminded that he has signed a confidentiality agreement.
If it appears the employee may be a target of the investigation, counsel should add that the employee should consider hiring an attorney and a third party should participate in the conversation.
Citing the recent New York Times story detailing an alleged cover up of Foreign Corrupt Practices Act violations at Wal-Mart, Martin recommended using outside counsel to provide advice.
“Keeping it all inside can be problematic,” he said. “The New York Times story about Wal-Mart shows how internal pressures sometimes mount and may keep you from going where you should go with the investigation. Using outside counsel can be helpful in this regard.”
Martin added that it is important to make full disclosure of the facts to outside counsel so they are not providing opinions based on incomplete information.