Litigation: How to conduct internal investigations

A guide on whether your employees should have separate counsel

At some point, almost every organization encounters questions of actual or suspected wrongdoing by its employees, officers or directors. When that scenario arises, it is time to launch an internal investigation to ferret out any wrongdoing and to take swift action to correct it.

For most employees, cooperation in an internal investigation is a required condition of their continued employment. However, if the suspected wrongdoing turns out to have been conducted by one or more employees, the investigation may lead to anything from disciplinary proceedings against employees to criminal charges. 

In certain situations, including many government inquiries that spawn internal investigations, there are specific employees or groups of employees that are likely to be at the center of the investigation—regardless of whether they did anything wrong and irrespective of whether the employee’s interests are likely to remain aligned with those of the company.

These individuals could possess key documents, may have witnessed the conduct at issue or could be similarly situated to individuals at other organizations or other parts of your organization who are being investigated for suspected wrongdoing. In those situations, it is proper for the company to draw the relevant factual distinctions to the attention of the employee and remind the employee that he or she can obtain separate counsel.

Contributing Author

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John Fagg

John Fagg is a member in Moore & Van Allen's Litigation Group. In addition to being an experienced trial lawyer, Mr. Fagg has extensive experience...

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Contributing Author

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Valecia McDowell

Valecia McDowell is a member in Moore & Van Allen's Litigation Group. Ms. McDowell has extensive experience conducting internal investigations for publicly-traded, privately-held and non-profit...

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