As we look ahead to 2025 and the changes to come, conducting the ABCs of responding to government investigations remains constant.
The U.S. Department of Justice (DOJ) recently updated its Principles of Federal Prosecution of Business Organizations, including the specific factors that prosecutors should consider in investigating a corporation, determining whether to bring charges, and negotiating plea or other agreements. These factors include “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision” and the corporation’s remedial efforts “to implement an adequate and effective corporate compliance program or to improve an existing one.” Additionally, the U.S. federal sentencing guidelines advise consideration of whether the corporation had in place at the time of the misconduct an effective compliance program to calculate the appropriate organizational criminal fine.
Conducting effective internal investigations of alleged misconduct is an integral part of maintaining an effective compliance program. When faced with the decision to initiate an internal investigation, swift and strategic action is crucial. From determining whether an investigation is necessary to defining its scope and objectives, every decision shapes the company’s ability to mitigate future risks. We provide a comprehensive framework of best practices for navigating the complexities of internal investigations, including effectively collaborating with internal teams, managing regulatory scrutiny, and working seamlessly with outside counsel.
Establish Clear Objectives and Scope
Before embarking on an internal investigation, it is crucial to define its objectives and scope. Transparency about the purpose, process, and intended outcomes helps align all stakeholders. Communicate these guidelines to key personnel, emphasizing the importance of cooperation in achieving accurate and actionable results.
Why it matters: A clear scope prevents mission creep, maintains focus, and builds trust among employees.
How to achieve it: Draft a written investigation plan that outlines the nature of the inquiry, identifies stakeholders, and specifies timelines. Include a contingency strategy for unexpected developments. Be sure to define specific metrics for success and establish criteria for closing the investigation.
Assemble a Cross-Functional Team
Internal investigations often require input from multiple departments, including legal, compliance, human resources, and IT. Bringing together a diverse team ensures a comprehensive approach to gathering and analyzing information.
Why it matters: A cross-functional team leverages expertise from different areas, making sure that no critical detail is overlooked.
How to achieve it: At the direction of the legal department or outside counsel, identify subject-matter experts and assign clear roles to each team member. Establish a protocol – one that protects the attorney-client privilege – for regular communication to ensure alignment. Conduct regular meetings to review progress, resolve conflicts, and address emerging challenges. Use collaboration tools to track tasks and responsibilities effectively.
Prioritize Confidentiality
Confidentiality is paramount in maintaining trust and protecting the integrity of the investigation. All team members must adhere to strict protocols for handling sensitive information.
Why it matters: Breaches of confidentiality can compromise the investigation and erode trust among employees.
How to achieve it: Use secure communication tools, limit access to sensitive data, and regularly remind participants of their confidentiality obligations. Implement robust data encryption and access controls to safeguard information. Conduct periodic reviews of data security measures to identify and address vulnerabilities
Provide Training and Resources
Not all employees are familiar with the processes and protocols involved in internal investigations. Providing targeted training makes certain that all stakeholders understand their roles and responsibilities.
Why it matters: Adequate training minimizes errors and ensures procedural consistency.
How to achieve it: Offer workshops, guides, and access to legal or compliance experts to educate employees on investigation protocols. Include real-world scenarios and case studies to enhance understanding. Provide ongoing training opportunities to keep employees updated on changes in regulatory requirements or best practices.
Maintain Objectivity and Impartiality
Objectivity is essential for credible investigations. Avoid conflicts of interest by making sure that team members and decision-makers have no personal stake in the outcomes.
Why it matters: Perceived or actual bias undermines the validity of findings and erodes organizational trust.
How to achieve it: Engage outside counsel when necessary and establish checks and balances within the process. Regularly audit the investigation’s methodology to ensure impartiality. Include an independent review of the findings before finalizing the report.
Document and Report Findings
Thorough documentation is essential for legal, regulatory, and internal purposes. Properly cataloged findings demonstrate diligence and provide a basis for informed decision-making.
Why it matters: Accurate records bolster the credibility of the investigation and serve as evidence if legal or regulatory scrutiny arises.
How to achieve it: Create detailed reports, supported by factual evidence, and share findings with key stakeholders in a structured and attorney-client privileged format. Include executive summaries and recommendations to facilitate decision-making. Be sure that all documentation maintains privilege, is securely stored, and is accessible for future reference.
Plan for Remediation and Follow-Up
Investigations should lead to actionable outcomes. Addressing identified issues promptly and thoroughly demonstrates the organization’s commitment to integrity and improvement.
Why it matters: A proactive approach reinforces accountability and helps prevent future incidents.
How to achieve it: Develop a remediation plan that includes corrective actions, policy updates, and additional training if needed. Monitor the implementation of these measures and conduct follow-up assessments. Evaluate the effectiveness of remediation efforts and make necessary adjustments.
Collaborating with Essential Experts
In many cases, organizations may choose to work with external experts during internal investigations. This can enhance the credibility, impartiality, and legal soundness of the process.
Why it matters: External experts bring specialized knowledge, help ensure legal compliance, and provide an independent perspective that can strengthen the investigation’s findings.
How to achieve it:
- Engage external experts early to help define the investigation’s scope and objectives. Early involvement ensures proper framing of the legal implications and provides strategic guidance from the outset.
- Establish clear communication between the internal team and external experts, ensuring to protect the attorney-client privilege, by designating a liaison within the organization. This helps streamline the flow of information and prevents miscommunication.
- Leverage external expertise to address complex legal issues, prepare reports, and recommend corrective actions. External experts can provide advice on sensitive areas such as privilege considerations, regulatory reporting requirements, and employee rights.
- Maintain regular check-ins to align on progress and address any emerging challenges. Regular updates keep both internal and external teams in sync and adaptable to new developments.
- Use external experts to provide training or guidance to internal stakeholders on relevant legal or regulatory standards. They can also help review or draft policies to mitigate future risks identified during the investigation.
- Document all interactions and advice from external experts, in a way that maintains the attorney-client privilege, to ensure transparency and support any future legal or regulatory inquiries.
Conclusion
Collaboration during internal investigations is vital for maintaining organizational integrity and resilience. By aligning objectives, fostering communication, and adhering to best practices, organizations can navigate challenging situations effectively. Effective collaboration not only ensures a successful investigation but also reinforces a culture of transparency and accountability.
By continuously refining investigation protocols and encouraging a culture of openness, organizations can turn internal challenges into opportunities for growth and improvement. Periodic reviews of past investigations can provide insights to further enhance future processes and prevent recurring issues. Additionally, external experts can assist with these efforts when appropriate by bringing objectivity, independence, and best practices to the organization.
Following these best practices will help make sure that the DOJ gives the company the most credit for maintaining an effective compliance program.
You can subscribe to future advisories and other Alston & Bird publications by completing our publications subscription form.
If you have any questions, or would like additional information, please contact one of the attorneys with our White Collar, Government & Internal Investigations Team.