Counsel to Counsel - January 2008 - (Page 22) investigation insights HANDLING GOVERNMENT INVESTIGATIONS: What Role Should Inside Counsel Play? By John M. Toth G eneral counsel whose companies face a Department of Justice (DOJ) or Securities and Exchange Commission (SEC) inquiry often see their safest option as having outside counsel handle the investigation from start to finish. Chris C. Gair, litigation partner with Jenner & Block LLP disagrees. , The Face of the Company Inside counsel, Gair believes, need to be integrally involved in the investigation. And in some cases, the best strategy may be to have in-house counsel take the lead in communications with the government. “In-house counsel is in a uniquely strong position to serve as the company’s face and voice to the government,” he asserts. “They are on the scene, understand the organization and can speak with authority.” Moreover, he adds, “prosecutors may respond positively to a more direct, unfiltered in-house response than one from ‘hired gun’ outside counsel.” Even so, Gair warns that the decision to have in-house counsel take the lead in interacting with government investigators must be made carefully, weighing the dangers and challenges involved. “The right person who is an integral management team member can give the company effective representation,” he says. “The wrong person—particularly someone who lacks decision-making authority or waffles—can be a disaster.” Avoiding the Big Mistake Gair says that the decision for in-house counsel to cooperate, once made, should be wholehearted. “The biggest mistake companies and their general counsel can make is to tell the government they will cooperate fully, then do a less-than-complete job,” he warns. Prosecutors will see any flaw or inconsistency in the information provided to the government, not as a simple mistake, Dave Cutler - Images.com 22 LexisNexis® Martindale-Hubbell® http://www.ges.com
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