Monday, October 22, 2007

Responding to DOJ Investigations: "Toss Them Under the Bus"

When government investigators come knocking on a company's door to obtain information, it may not be of much comfort to the employees that their employer may be looking to "toss them under the bus," according to former U.S. Attorney Roscoe Howard, Jr.  An article in the Fulton County Daily Report (here) discusses a presentation Howard, now a partner at Troutman Sanders, made in Atlanta to the local chapter of the Association of Corporate Counsel at a continuing legal education program.  In discussing how to deal with a criminal investigation, Howard recommended that counsel become friendly with the investigators and prosecutors to learn the scope of the investigation and who the individual targets are, because "[y]our goal is to find out those individuals, separate them and if necessary toss them under the bus . . . The goal is to protect the company."  Howard also makes a good point about separating out the compliance function from the general counsel's office.  If the company's lawyer is also responsible for compliance, then that person can become invested in the decision and not look at it critically.  He said, "If you ask me about my kids, I'm going to tell you they are beautiful and they are great people, but I'm invested in them.  If your in-house counsel is also your compliance officer, he may say, 'Hell yeah, it's legal. I've looked at it.' You want somebody who isn't invested."  Hewlett-Packard learned that lesson the hard way when its chief ethics officer was from its general counsel's office and oversaw the internal investigation that ultimately included pretexting to obtain private information from reporters and employees.  (ph)

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