Counsel to Counsel - January 2008 - (Page 23) but as a willful attempt to disrupt the investigation. This is particularly true in an SEC investigation, which places responsibility on the company for providing all relevant information. As Gair warns, “Once a company decides to cooperate, nothing less than an aggressive effort to ferret out all the facts meets the standard of full cooperation.” Follow the Rules In light of the advantages and challenges posed by a complete cooperation decision, Gair proposes these fundamental rules as a guide for in-house counsel in any government investigation, whether or not inside counsel acts as the primary point person with the government: • Be aware of the worst case. If an investigation uncovers problems that prosecutors or regulators had not identified, it may be advisable to communicate fully to them. This maintains the company and counsel’s credibility with the prosecutors. • Be an active investigator. A litigation hold email to all relevant employees at the start of investigation and discovery without sufficient follow-up to find and produce what actually exists will be seen as inadequate by prosecutors if problems are unearthed later. • Be cautious about taking the internal information you receive at face value. • Be proactive, asking yourself, “If I were the prosecutor, would I want this information?” If your answer is “yes,” the information should be produced. In-house counsel is best positioned to know what such information is and how to secure it. Gair’s view is that in-house counsel who observe these precautions can play a key role in any investigation. “By combining the right mindset with the right process to provide information, the in-house lawyer can be an effective advocate who prosecutors will respect—to the company’s ultimate benefit.” “Once a company decides to cooperate, nothing less than an aggressive effort to ferret out all the facts meets the standard of full cooperation.” Tim Teebken/Photodisc Green/Getty Images In-house lawyers should resist the organizational temptation to take the assertions of senior executives as fact without the kind of sufficient investigation that a prosecutor would expect. • Be sure all employees interviewed understand the importance of cooperation. Eliminate any potential for Changing Views on Privilege But, increasingly, “full cooperation” does not necessarily translate to a waiver of privilege. Although both the DOJ and SEC have prosecutorial guidelines that evaluate a company’s degree of cooperation, waiver of privilege is often no longer a key element. The DOJ has recently revised its guidelines to deter prosecutors from actively seeking such waivers. “If in-house counsel is nevertheless confronted with a waiver request from another agency, the change in DOJ policy now gives you a firmer basis to respectfully decline,” he adds. adversarial mindsets or assertions that requested information can’t be found or wasn’t kept, because prosecutors see such responses as lack of cooperation. • Be armed with decision-making authority if you are the point person for dealings with the government. Chris C. Gair is a partner at Jenner & Block LLP and has broad experience in white collar criminal defense, antitrust, complex commercial litigation and internal investigations. He served for seven years as an assistant United States Attorney in Chicago, eventually becoming deputy chief of the organized crime division. Gair is a member of Jenner & Block’s Litigation Department and its White Collar Criminal Defense and Counseling and the Antitrust and Trade Regulation Practices. He is Peer Review Rated and can be reached at cgair@jenner.com. This enables you to respond quickly when prosecutors make proposals. martindale.com/c2c JANUARY 2008 23 http://www.martindale.com/c2c
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