What is white-collar criminal law? It involves financial crimes and public corruption, such as health care fraud, false claims, kickbacks, wire and mail fraud, procurement fraud, bribery, embezzlement, cybercrime, securities fraud, tax fraud, insider trading, Ponzi schemes, forgery, and identity theft. Watch the Career Choice Series webinar White-Collar Criminal Law to get the inside scoop on what it means to be a white-collar criminal lawyer, what a day in the life is like, the pros and cons, and how to position yourself to become one.
5 Survival Tips for Associates Working on Internal Investigations
Tommy Tobin
Almost all junior associates are introduced to internal investigations on the job. Conducting corporate interviews, after all, is not typically part of the law school curriculum. Given how important interviews with corporate employees can be to the investigational process, junior associates new to this tricky subject will want to understand the basics of the process. I have been where you are now, and these are the five tips I wish someone had told me during my early days tangling with internal investigation work. Although they may sound simple, putting these basic actions into practice can go a long way to building the foundation for your success in white-collar work (the latter being code for generating the managing partners’ confidence—the ultimate currency for associates of all stripes).
Know the Facts (Better Than Anyone Else)
Investigations typically involve hundreds of constantly moving and evolving parts. These parts are being analyzed and discussed by attorneys of all types and levels of experience, whether in-house, with outside counsel, or with the relevant regulatory or enforcement bodies. Conducting interviews and collecting and reviewing reams of electronic evidence are table stakes. The partners managing this morass of evidence tend to manage numerous investigations simultaneously, and this is both a curse and an opportunity.
As a junior associate, you will probably be the closest to the facts of an investigation, especially when the investigation involves extensive document review. You can distinguish yourself by knowing the facts of a matter cold, educating other team members, asking questions to deepen your understanding, and escalating items to your supervisors appropriately. The junior associate with the most facile knowledge of the facts will likely be called on to brief the lead partner(s). This type of face time and opportunity to shine is invaluable. On the other hand, appearing ignorant of the facts can quickly become a reputation destroyer. Spending that extra time digging into the evidence and knowing all the angles can be a worthwhile investment in your team and your reputation with the decision makers, the client, and the partner.
Understand the Goal(s) of the Interview
Directly related to the importance of getting granular with the evidence is understanding who the team will be interviewing (as well as why and when the interviewee will be invited to sit down for the discussion). Generally, investigational interviews are conducted to learn what the witness knows and assess that witness’s credibility. An employee’s role within the organization could influence the employee’s perspective. Take the opportunity to consult with the team to understand why this interviewee will be sitting for an interview and what the team hopes to learn from the interview from both a strategic and practical perspective. For example, you should always review (and then re-review) the investigative work plan, if one is available (which it should be), to learn how this interview fits within the overall investigation.
Good Notes Are the Keys to the Kingdom
At the risk of stating the obvious, detailed notes documenting what was said during an investigational interview are critical. These notes are essential to memorialize the conversation and form the basis of an interview memorandum. In turn, these interview memoranda will eventually inform the conclusions of the entire investigation and how these conclusions are reported. Often, junior attorneys are tasked with taking these important interview notes. If you are taking notes, you must be alert, especially as other interviewers may call upon you to confirm whether anything further should be covered before moving on to another subject. So don’t hesitate to ask trusted partners or senior associates (or, better yet, both) to share with you what they consider an “A+” interview memo so that you can see how the memo should be structured, what the appropriate tone is, and any preferences the partner may have for such work. This will help avoid significant missteps and ensure that you are on the right track.
Anticipate Partner Needs
The best junior associates focus on doing great work and understanding how it fits into the larger picture. Junior associates can be active (albeit junior) members of an investigative team. When paired with knowing the facts, a great junior associate can think around corners and anticipate needs. For example, in preparing an interview memorandum, consider embedding sections of referenced documents so that the partner conducting the interview can avoid hunting for a cross-referenced document and focus on the questions at hand. Of course, asking a partner—or more likely senior associates—about partner preferences and what others have done to distinguish themselves can help you meet and exceed a partner’s expectations.
Similarly, when preparing slides for a partner’s presentation for interim or final reports to the client regarding investigation status, consider getting an example presentation or two that the partner has previously given as a basis for their preferred style. Also, consider drafting talking points that meaningfully supplement the bullets in the presentation—partners generally prefer to overprepare to the greatest extent possible so that they can have answers or context at the ready as they juggle work on multiple matters.
Maintaining Confidentiality
Internal investigations often involve highly sensitive allegations. Maintaining the confidentiality of the investigation is not only part of an attorney’s ethical responsibilities, but it is also crucial to the application of the attorney-client privilege. The inadvertent disclosure of confidential information can frustrate the investigation and potentially put the client in an embarrassing situation. Failing to follow best practices to protect confidential investigation materials can result in the disclosure of the material that attorneys seek to protect and broad subject-matter waiver beyond the material disclosed. Every member of an investigational team is tasked with keeping confidential matters confidential. For example, horror stories abound about mistyped email addresses sending highly confidential, highly sensitive material to unintended parties. Doing so in the white-collar context can create regrettable situations for the attorneys involved, their firms, and the client. Among other things, you must monitor how and where you discuss the investigation with the team and, if working remotely, take precautions to maintain confidentiality within your remote work location.
White-collar work involves some of the most sensitive and confidential matters across all legal practice, as clients often face sizeable consequences if matters go poorly. As a junior associate, you are vital to the team’s successful representation of clients during these complex, multifaceted situations. Good associates will meet expectations, and great ones will exceed these expectations—setting themselves up for future work with increasing degrees of autonomy and responsibility. The above five tips provide the foundation for associates looking to do just that.