Business leaders should hire dedicated outside Investigative Counsel:
The regulatory machine continues to pressure American business and its leaders. The ever-present eye of government peers over the shoulders of decision-makers, as they try to focus on their core businesses. Laws such as the Foreign Corrupt Practices Act, Sarbanes-Oxley, and Dodd-Frank, combined with the regulations administered by the Securities and Exchange Commission (SEC), necessitate comprehensive compliance programs.
Companies are comprised of people, and people sometimes make bad decisions, or sometimes engage in bad conduct. Not necessarily that the people are themselves bad, but that they sometimes do bad things. These bad things can imperil a company, and sometimes that peril is in the form of bad publicity, heavy fines, or even criminal prosecution. Both a corporation and the people working for it can be criminally prosecuted. And, while a corporation cannot be imprisoned, people can.
Outside of the compliance arena, companies also face issues that imperil the commercial health of the company, and the company’s bottom line. Employee embezzlement, internal theft, industrial espionage, and theft of trade secrets, for example, negatively impact the bottom line. Also, employee mistreatment of other employees, workplace violence, and discrimination also present risks to the company, including exposure to litigation.
The Benefits of a Pro-Active Entity
Embracing a comprehensive, pro-active policy for compliance, investigation and risk mitigation instills confidence in stakeholders, decision makers, and government agencies. With this confidence, leaders are equipped to focus on core business issues. Too many companies are reactive versus proactive and pay steep prices for their limited vision. Policies, and programs, of the pro-active nature enable organizations to achieve sustainable success, because they are building for the long term.
The Value and Power of Objectivity
Most communication experts will testify that objectivity in the business world is pure gold. If this rings true, then objectivity in the arena of corporate compliance and internal investigations is platinum. Both the Department of Justice (DOJ) and the SEC determine whether or not to take enforcement action against corporations, their officers, and employees, based upon the robustness of the company’s compliance program. A program that employs rigorous risk assessment and risk mitigation through an objective lens will be seen as a proactive entity, with greatly reduced exposure.
Adding that Value and Power
Outside investigative counsel, hired directly by your company to perform internal investigations, affords your company that value and power. Plus, using investigative counsel also affords the business entity with the protection of the Attorney-Client Privilege and the Attorney Work Product Doctrine. Further, an independent outside investigative counsel can offer you dedicated, skilled service, with the counsel giving personal attention to your company’s needs. (An additional option is to direct that your existing outside counsel hire a separate investigative counsel as Of Counsel to conduct and supervise the internal investigation.)
The public sector equivalent to investigative counsel is an attorney hired by a public agency as its Private Independent Counsel. In the public sector, the concept of using outside investigative counsel is very much the same as that in the private sector, although public records laws may limit application of the Attorney Client Privilege and the Attorney Work Product Doctrine.
How to Evaluate Investigative Competency
Competency is a measurable pattern of knowledge, skills, abilities, and behaviors and when your company needs the protection of a skilled investigator, it is essential to have access to people with the credentials to handle the complex machinery of corporate America. A variety of skills, abilities, and behaviors are required to treat every situation with both scrutiny and discretion, valuing both the people and process for a positive result. A clear track record of complex cases combined with respectful treatment of individuals will produce results that leaders, investors, and enforcement agencies expect. Look for that track record of complex case experience when you are selecting an outside investigative counsel.
Copyright Todd K. Hulsey, The Hulsey Law Firm, PLLC; 2019
Interested in true-life espionage stories? On December 30, 2016 Todd Hulsey was interviewed by crime fiction novelist and retired FBI Special Agent Jerri Williams about the Leo Mascheroni spy case:
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Todd Hulsey talks about cyber crime and the counterterrorism and foreign policy challenges of ISIS and Iran in this interview by J. Loren Norris of Tell It Like It Is, Inc:
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