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In-House vs. Outside Counsel: Trends in Internal Investigations
As government compliance requirements grow more complex because of evolving global data policies and technological advances, it’s more important than ever for legal teams to have solid investigative processes in place. At an October 2 panel discussion about trends in internal investigations at Bloomberg Law’s In-House Forum East, five experts discussed how to build a strong investigative team.
“I’m seeing the trend toward a lot of legal departments trying to move as much as they can in-house,” said Jason Mang, litigation associate general counsel at S&P Global. Before deciding to handle compliance matters internally, however, he noted that the team must determine whether they have enough experience with any highly technical elements related to that investigation, such as specific accounting rules, cyber review, or forensic data retrieval.
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Mark David McPherson, partner at Morrison and Foerster LLP, said he has been noticing a similar trend from the outside counsel perspective.
“A lot of companies these days have their own procedures and their own teams that are able to do the investigations that we would normally do almost routinely,” McPherson said. “It just depends on the type of issue and the scale of the problem.”
Assembling in-house investigation teams is “more of an art, not a science,” said Claudius Sokenu, deputy general counsel and global head of litigation and investigations at Andeavor, “You really want somebody who knows what they’re doing because there are certain mistakes you can’t unmake. It just requires people to be quick on their feet and to think about issues that you may otherwise not have thought about in the past.”
While building trust and good judgment among in-house team members is vital, Sokenu said that strategic relationships with outside counsel are also key to success. Such relationships ensure that when issues arise and outside counsel is needed, “everybody knows everybody already.”
Outside counsel relationships are particularly significant for lean organizations and when addressing especially complex situations, such as when a team is dealing with difficult witnesses or identifying how to best present a matter to a regulator, according to Monica De Martin, director of counsel and internal investigations at Société Générale. “Having those people in your back pocket is really important,” she said.
Joseph Mack, senior compliance counsel at Bayer U.S. LLC, added that internal compliance business partners can also be valuable assets during investigations. They’re embedded in day-to-day business operations and are up to speed on corporate developments in real time.
“If we’re doing an investigation in pharmaceuticals, then we have a compliance business partner who knows what’s going on in pharmaceuticals,” Mack said. “She knows what products have been launched, she knows who the different people are and who might be involved. They become sort of a liaison for us when we’re trying to conduct an investigation.”