Internal Investigations Blog

Calls for a compliance defense dog the FCPA and Dodd-Frank generates much discussion about the bounty program that it has created for whistleblowers.  Both have implications for how organizations structure their compliance programs and investigate themselves when a breakdown occurs.  But what about the larger framework – the United States Sentencing Guidelines - within which companies seeking to abide by these statutes and a myriad of others must work?  One prominent think tank sees room for improvement and inspires additional thoughts in that vein.

Like passersby to a horrific accident on the highway, witnesses to the unfolding Wal-Mart de Mexico scandal continue to gawk at the carnage.  And like the speeding, in-and-out-of-lanes, reckless driver that causes his own near-fatal crash, the men at the wheel of the Wal-Mart bus – executives in Mexico and in Bentonville – are hard-pressed to garner sympathy.  The company’s internal investigators should not share that same fate simply because the "tone at the top" seemed wrong.

A complicated issue always lurks in the background when conducting an internal investigation for a public body.  Imagine a municipal government, college athletic department, or other public entity engaging a law firm to look into any number of allegations of misconduct that might occur in such settings.  And further imagine that – whatever they may be – the very existence of those allegations will be personally and professionally damning to targets or tremendously embarrassing to witnesses and others involved.  In this context, the shield of attorney-client privilege is a valued commodity until the inquiry is completed and the facts are cemented.  But what of the public’s concurrent right to know what is going on?