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Entering the lion's den: Should in-house counsel meet with government investigators?

Robert Lindquist (robmlindquist@gmail.com) consults on compliance and investigation matters, and formerly served as chief compliance officer for two companies. Daniel Prywes (dprywes@mmmlaw.com) is a Litigation Partner with the law firm of Morris, Manning & Martin LLP in Washington, DC, USA.

Picture the following scenario: A federal government agency sends a company a subpoena for information concerning possible violations of federal law. Because of the apparent serious nature of the inquiry, the in-house counsel retains outside counsel, who sets up an initial meeting with the government to learn more about the matter. Subsequent meetings are scheduled. In-house counsel asks to participate in further meetings in order to gain firsthand knowledge of the thrust and seriousness of the government inquiry, to convey the company’s commitment to compliance, and to assess outside counsel’s performance in dealing with the government. In-house counsel believes that it is important to put a human face to the company. But outside counsel warns that the in-house counsel’s attendance would hinder frank discussion and pose risks. Should in-house counsel insist on attending further meetings with government investigators?

Many articles have addressed the tasks performed by in-house counsel in support of a company’s response to a government investigation.[1] But few commentators have addressed the extent to which in-house counsel should move from the rear to the front lines of an investigation and interact directly with government investigators at meetings. Outside counsel often discourage such involvement, though the presence and participation of in-house counsel can sometimes add value. This article discusses the risks and the rewards of involving in-house counsel, and even members of the C-suite, especially the chief compliance officer, in meetings with the government and presents guidelines to govern such participation.

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