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Effective investigations: The whole is greater than the sum of its parts

Tony Phillips (aphillips@mckoolsmith.com) is a Principal in McKool Smith’s Houston and Washington, DC, offices, where he is part of the White Collar Defense and Investigations practice. David Searle (david.searle@bristowgroup.com) is the Chief Compliance Officer & Associate General Counsel at Bristow Group in Houston, Texas, USA.

Compliance professionals often find themselves wearing two distinct hats. Usually, they are the “friendly face,” conducting compliance training, responding to questions, and tactfully helping the business maximize profitability within the confines of the law and company policies. Sometimes, however, they are compelled to be the “corporate cop,” administering Upjohn warnings to that same vice president who recently attended compliance training (but was apparently asleep).

In this latter role, the effective compliance professional must balance the responsibility to investigate with independence and integrity against the reality that internal investigations are often a political hot potato. Business partners prefer to maximize their discretion and control—especially when inquiries touch on their areas of responsibility—and understandably dislike the uncertain demands on resources and time associated with early stage investigations. Life would be easy if the task of investigating could simply be turned over to them. The reality, of course, is that regulators and other stakeholders, not to mention fundamental fairness, demand a level of independence that, (in most organizations) requires a compliance professional to lead the investigation. The often delicate task is leading in a manner that does not leave the business blindsided, defensive, or unnecessarily disrupted.

This article focuses on the resources and benefits, often overlooked by compliance professionals, of the participation in compliance investigations by colleagues sitting in other traditional administrative functions such as legal, human resources (HR), information technology (IT), internal audit, and corporate security. Too often compliance professionals find themselves tackling even complicated internal investigations alone. They may do this because they fear that involving others—even those in other support functions—may jeopardize the investigation’s independence or integrity. They may also avoid involving other support functions out of a genuine concern that colleagues would rather avoid any political fallout from the business if wrongdoing is uncovered.

Although these concerns may be valid, the effective compliance professional proactively involves other administrative functions in the investigative process. Forging close working relationships with these colleagues on the front end will pay huge dividends when the need to investigate arises. Not only can other functions assist in the investigative process, but, more importantly, their influence may also become indispensable to educate the business about the need for the investigation in the first place and, ultimately, confirm and credit the compliance department’s findings. If opposition arises, the compliance professional will need allies. Those compliance professionals who fail to embrace a team approach may find themselves alienated from those in other administrative functions and, worse yet, the business itself.

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