Recently, an increasing proportion of private law practice has been in “internal investigations.” Most frequently but not exclusively associated with white collar or regulatory matters, such investigations can be triggered any time an institution decides, whether voluntarily or under public or regulatory pressure, to examine its own conduct or that of one or more of its personnel.
Investigations involve some of the most fact-intensive work handled by private practice lawyers; much of it is done without reference to formal rules governing fact discovery, leading to logistical issues not often encountered in other matters and calling on both ‘hard’ and ‘soft’ skills not typically taught in law school. While much of this work can be categorized as ‘Fraud,’ ‘Disclosure Failure,’ or ‘Corruption,’ the underlying factual issues usually require the investigator to focus on the investigated entity’s business, its industry or, in the case of inquiries into non-profits and government agencies, its mission.
In addition, the investigating counsel’s role will differ substantially from case-to-case, depending on whether the client retaining the lawyer is a committee of a board; the investigated entity; members of its management; or monitors or special masters.
For these and other reasons, investigations raise issues of fact-gathering and analysis, as well as complicated and sometimes unsettled legal questions, such as privilege and determining to whom the duty of loyalty is owed; globalization and the tension between cross-border cooperation and conflicting legal principles; use by regulators of work product developed by private lawyers; the role of whistleblowers; and collateral consequences to the investigated entity.
To address these issues, this seminar uses reports (including relevant primary source material such as internal documents and interview transcriptions) of recent investigations across a range of industries and agencies, along with guest speakers in the field, to examine from a practical perspective the legal, business, and logistical issues encountered by lawyers practicing in this important area.
Being able to describe the results of an investigation is critical, and course requirements include two to three short writing assignments, plus a 12-15 page paper on which students are expected to consult with the instructor. In addition, investigations are almost always done by teams, and a key aspect of this seminar is learning from each other. Students enrolling in this seminar should be prepared for active class participation.