Fact investigation has always been a critical component of both private and public sector law practice. Recently, an increasing proportion of practice involved has fallen into the category of "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.
This seminar looks at the range of skills and knowledge called upon in conducting investigations, many of which are not typically addressed in law school. These include the ability to learn about and understand "hard" and "soft" skills such as selecting and interviewing witnesses; reviewing, evaluating and describing evidence; learning about an investigated entity's business, its industry or, in the case of a non-profit and government agency, its mission, and the statutory and other rules which apply to its conduct.
In addition to issues of fact-gathering and analysis, we will look at complicated and sometimes unsettled legal questions such as privilege and determining who is the client to whom duty of loyalty is owed; whether and how to cooperate with regulatory authorities; conducting a multinational investigation in the face of conflicting national 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 topics, this seminar uses reports (including relevant primary source material such as internal documents and interview transcripts) 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 short writing assignments, plus a 12 to15-page paper on which students are expected to consult with the instructor in advance. 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.