It's Good to Be 'On the Outs': How to Avoid Government Suspicion

Using your own in-house counsel to conduct an internal probe of possible corporate wrongdoing is a quick way to make a government prosecution very suspicious. And what if you hire outside counsel but the in-house counsel wants to take part in the investigation, especially the interviews of employees? Not a good idea, according to Crowell & Moring LLP White Collar & Regulatory Enforcement Group partner, Daniel L. Zelenko. "There is a role for the in-house lawyer, but not having him in the room during interviews might be more productive," Zelenko, a former federal prosecutor, said. Zelenko explains that having the general counsel present could hinder the investigation by making employees reluctant to talk. But the general counsel can help by scheduling the employee interviews, introducing the investigating counsel, and explaining why they are there. He also discusses why an oral Upjohn warning - a sort of Miranda warning in corporate investigations - is better than a written one, and an American Bar Association task force agrees.