At the end of every blog, I always ask my readers to please let me know if they have any topics they would like me to write about. While I don’t get a huge number of “requests,” I do get some – though I am still trying to figure out what to do with “My boss is an a$%#^le, what do I do?” I did, however, recently get a reader request that I thought would be a good topic to cover this week. If you work for a company of any material size, there is likely a Board of Directors. For smaller, family-run companies, this usually means a Board comprised of several family members with very little risk of problems from outsiders. But, as the company gets bigger, and especially if the company is publicly traded, the risk of problems grows quickly. As in-house counsel one of your main tasks is to protect the Board of Directors from going down the wrong path or setting themselves up for potential exposure from lawsuits or regulatory sanctions. This edition of “Ten Things” discusses some of the basic things you should be doing to help protect the Board, regardless of whether the company is public or private:
There are a number of unpleasant tasks that in-house counsel must perform on occasion. Probably near the top of the list is participating in/leading an internal investigation. The reason it’s such a crummy deal it because it means that the company’s own employees or management have potentially engaged in some type of wrong-doing. That wrong doing can range from breaking the company’s business ethics policy to engaging in some type of criminal behavior. Whatever the case may be, it’s going to take time that could otherwise be spent on more productive matters and it may mean the end of someone’s employment with the company – or worse, someone you know may get to wear an orange jumpsuit when it’s all over.
While unpleasant, when the circumstances arise, in-house lawyers owe a duty to their client – the company – to ensure that any internal investigation is performed properly and done in a manner that is defensible and as bullet-proof from attack as possible. That is not an easy task. There are many ways an internal investigation can go sideways. A poorly conducted investigation can lead to more problems and cause more damage than the behavior under investigation in the first place. This is why it’s so important for in-house counsel to “get it right” from the get go. I was part of a number of such investigations in my career and hindsight gives me the ability to look back and realize there were, of course, many things we could have done differently. Those “lesson’s learned” form the basis for this edition of “Ten Things” where we take on the fundamentals of a proper internal investigation: