Internal Corporate Investigations: Legal Ethics, Professionalism and the Employee Interview

Sarah Helene Duggin, The Catholic University of American, Columbus School of Law


This article addresses key ethical issues pertaining to the conduct of employee interviews in the course of internal corporate investigations. The discussion focuses on business corporations, but it is equally applicable to other for-profit and not-for-profit organizations.

Part II provides background information on developments in organizational criminal liability over the past two decades, the importance of the United States Sentencing Commission's Organizational Sentencing Guidelines, and the concomitant emergence of the internal investigation as an integral part of modern corporate legal practice.

Part III examines law enforcement authorities' growing insistence on corporate "cooperation" as a prerequisite to participation in voluntary disclosure programs, avoidance of prosecution, and negotiation of guilty pleas. The principal rules of professional responsibility applicable to employee interviews, including changes in the Model Rules recently adopted by the ABA in the wake of Sarbanes-Oxley and the new SEC attorney conduct rules are discussed in Part IV.

Part V looks at difficulties inherent in the application of current professional responsibility standards in the context of investigative employee interviews, and Part VI offers proposed principles for revision of standards applicable to internal investigative interviews and related prosecutorial demands for corporate cooperation with law enforcement authorities. These basic principles are designed to promote both fairness to employees and professional integrity amid the rush to expose and prosecute corporate misconduct.