(Webcast) Avoiding Ethical Pitfalls in Corporate Internal Investigations

Monday, November 22, 2021 | 12:00 pm – 1:45 pm

Program Chair:
Richard B. Friedman
Richard Friedman PLLC

  • This program is perfect for in-house counsel advising management with respect to internal investigations involving executives and other employees, and for outside counsel representing companies or executives on internal investigations in connection with their respective duties and rights relating to compensation and other employment-related matters.

    Topics to be addressed include:

    • Understanding the nature of the allegations
    • Clearly identifying the client
    • Deciding who will conduct the investigation
    • Handling investigations targeting the majority owner of a closely held company
    • Limitations on monitoring employee communications sent on company devices
    • Conducting interviews of corporate employees with or without counsel present
    • Issues arising out of the disposition of the investigation

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

    Members who are Law Students, 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.

  • Christopher D. Belelieu
    Gibson, Dunn & Crutcher LLP

    Loren Gesinsky
    Seyfarth Shaw LLP

    Professor Stephen Gillers
    Elihu Root Professor of Law
    New York University

    Ann-Elizabeth Ostrager
    Sullivan & Cromwell LLP

    Douglas T. Schwarz
    Morgan, Lewis & Bockius LLP

    Lisa Zornberg
    Debevoise & Plimpton LLP

  • 12:00 – 12:05          Introduction of Panelists                                                       

    Richard B. Friedman

    12:05-12:20          Nature and Targets of The Allegations

    A. Need to understand the nature of the allegations.
    i. Rule 1.1 requires that lawyer be competent to handle the matter.
    B. Source of the allegations.
    i. Issues if the complaint is anonymous.
    C. Are any senior executives targets of the allegations?
    i. Any indemnification rights?


    12:20-12:40          Who is the Client?                                                                                  

    A. The corporation?
    B. The Board or a Special Committee of the Board?
    C. A corporate affiliate?
    D. How to handle investigations of a company controlled by a majority owner who is the target of the allegations.
    i. Possible application of Conflicts Rule 1.7


    12:40-1:00          Who Will Conduct The Investigation?                                                

    A. Will the investigation be structured to try to ensure it is privileged?
    i. Can HR personnel be deemed agents of counsel?
    ii. Possible use of third party forensic investigations as agents of counsel.
    B. Issues of using In-house counsel when target is the investigator’s direct superior.
    C. Issues of using regular outside counsel when target is principal client contact.
    i. When, if ever, should a company or its Board try to structure an investigation to be “independent?”


    1:00-1:15          Monitoring Communications of Employees                                     

    A. Any limitations on access to personal communications sent on company devices?
    i. Any ethical constraints to access employee-attorney communications?
    B. Any limitations on monitoring employee telephonic and in-person communications?
    i. Okay to record conversations without seeking the employee’s consent?
    ii. Can a lawyer ethically record a conversation after the employee or other person asks the lawyer not to do so?


    1:15-1:35          Witness Interviews During the Investigation

    A. Should employees be allowed to have counsel present?
    B. Importance of Upjohn warnings.
    C. Can the lawyer record a remote interview?


    1:35 – 1:45          Disposition of the Investigation

    A. Should there be a written report?
    B. Is it ethical to share a draft of the report with the target?
    C. Any ethical constraints in preparing different versions of the reports for different constituencies?
    D. Issues arising if the principal lawyer who conducted the investigation later becomes a witness..


  • New York: 2.0 Ethics
    New Jersey: 2.1 Professional Responsibility
    California: 2.0 Professional Responsibility
    Pennsylvania: 1.5 Professional Responsibility
    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