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Ten Tips for Handling Sensitive Investigations
The Enron, Tyco and WorldCom scandals have greatly heightened the fiduciary duties of directors and officers and the scrutiny paid to them. The spotlight on corporations and their managers is likely to shine brightly for years to come. This article offers ten practical tips for handling sensitive investigations in an era where shareholders, prosecutors, regulators and courts are likely to scrutinize the response of organizations to inevitable episodes of suspected corporate misconduct.
1. Consider whether an outside law firm with little or no relationship to the company will better serve the objectives of an independent investigation.
In matters potentially implicating senior corporate executives, the Board of Directors or Audit Committee should consider whether counsel conducting investigations should be from a law firm that the company regularly uses as outside counsel or that derives a material amount of revenues from the company. For example, in the Enron case, the firm had collected more than $100 million in legal fees from Enron, and its partners had provided legal advice in the transactions it later investigated. Issues of independence and self-interest clouded the credibility of the law firm's internal investigation.
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