Employment Issues Facing Executives Arising Out of Government Investigations

Originally held on Monday, September 13, 2021 | 12:00 pm – 1:45 pm

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Program Chair:
Richard B. Friedman
Richard Friedman PLLC

  • If you are an in-house counsel advising management with respect to government investigations involving executives and other employees or outside counsel who represents companies or executives in connection with their respective duties and rights relating to compensation and other employment-related matters arising out of government investigations, you cannot afford to miss this program being given by an expert panel:

    Topics to be addressed include:

    • An introduction to the Government Agencies Which Often Initiate Such Investigations and the Types of Investigations
    • Employer Interviews of Employees In Connection With Government Investigations
    • When Counsel for An Executive Should Be Provided By An Employer and Attorney-Client Privilege Issues
    • Possible Suspension or Termination of Employees Whose Conduct Is Being Investigated or for Failure to Cooperate With An Employer’s Investigation
    • Actions Taken Vis-à-vis the Employee After the Internal or Government Investigation Has Been Concluded
    • Employer’s Possible Right to Claw Back Compensation for Employee Misconduct and Under The Faithless Servant Doctrine
    • How To Treat Whistleblowers who Initiated the Government Investigation

    Program Fee:
    $149 for Members | $249 for Nonmembers

    Members who are Recent Law Graduates, Newly Admitted Lawyers (admitted for the first time in any state or country 2019-2021), In-House/Corporate Counsel, Judges, and attorney members who practice within the Government, Academic or Not-for-Profit sectors attend this program for free.

  • Jonathan D. Cogan
    Kobre & Kim LLP

    Tracy Richelle High
    Sullivan & Cromwell LLP

    Raquel Kellert
    Weil, Gotshal & Manges LLP

    David E. Myre
    Quinn Emanuel Urquhart & Sullivan LLP

    Joseph A. Piesco
    DLA Piper LLP

  • 12:00 pm – 12:05 pm
    Introduction of Panelists

    12:05 pm – 12:10 pm
    Types of Investigations

    • Civil Actions
      • SEC
      • CFTC
    • Criminal Actions
      • U.S. Attorney’s Offices
      • State Attorneys General
      • District Attorneys

    12:10 pm – 12:25 pm
    Interviews of Corporate Employees

    • Should executive be allowed to have counsel present?
    • When must corporation pay for counsel?
    • When should corporation recommend counsel?
    • When should corporation pay for counsel?

    12:25 pm – 12:40 pm
    Considerations of Executives in Submitting to Interviews

    • Possible risk of termination for failure to cooperate
    • Possible need to avoid self-incrimination
    • Best practice is to have a notetaker other than the executive’s lead counsel
    • Possible whistleblower opportunities when an executive provides to the government information damaging to the employer

    12:40 pm – 12:55 pm
    Placing Employee On Leave Whose Conduct Is Under Review or Who Is Not Cooperating Fully

    • Executive’s s obligation is to cooperate with corporation’s counsel
    • What to do if executive is perceived not to be cooperating fully
    • Under what circumstances should executive be put on leave?
    • Issues which arise when compensation of executive put on leave is largely based on bonuses or commissions that can’t be earned during the leave

    12:55 pm – 1:20 pm
    Privilege Issues

    • Who or what has the privilege in the context of a government investigation?
    • Possible common interest privilege between corporation and executive
      • When can it help the company?
      • When can it help the executive?
    • Practical considerations for executive in light of the fact that the privilege is that of the company
    • International issues since privilege does not attach to in-house counsel in many foreign countries

    1:20 pm – 1:45 pm
    Disposition of the Investigation

    • When should no action be taken and possible ramifications vis-à-vis the government?
    • Financial penalties
      • Corporation’s contractual right to claw back compensation or previously paid legal fee or not pay deferred compensation
      • Common law claims: Faithless Servant Doctrine: Whether it applies to all compensation or only that paid during period of disloyalty

  • New York: 2.0 Professional Practice
    New Jersey: 2.1 General
    California: 1.5 General
    Pennsylvania: 1.5 General
    Connecticut: Available to Licensed Attorneys

  • Sponsoring Association Committee:
    Labor & Employment, Tracey Salmon-Smith, Chair

    Sponsorship Opportunities are Available! Please Contact:
    Angie Avila, Manager, Membership Outreach and Sponsorships | (212) 382-6608 | aavila@nycbar.org

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