GIR Volume I: Global Investigations in the United Kingdom and the United States Kingdom and the United in the United Investigations I: Global Volume Investigations Global Guide to Practitioner’s The Global Investigations Review The law and practice of international investigations Global Investigations Review TheGIR The law and practiPractitioner’sce of iinnternatiternatioonalnal investigationsinvestigations Guide to Global Investigations Volume I: Global Investigations in the United Kingdom and the United States Fifth Edition Editors Judith Seddon, Eleanor Davison, Christopher J Morvillo, Michael Bowes QC, Luke Tolaini, Ama A Adams, Tara McGrath Fifth Edition 2021 2021 © Law Business Research 2021 The Practitioner’s Guide to Global Investigations Fifth Edition Editors Judith Seddon Eleanor Davison Christopher J Morvillo Michael Bowes QC Luke Tolaini Ama A Adams Tara McGrath © Law Business Research 2021 Published in the United Kingdom by Law Business Research Ltd, London Meridian House, 34-35 Farringdon Street, London, EC4A 4HL, UK © 2020 Law Business Research Ltd www.globalinvestigationsreview.com No photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation, nor does it necessarily represent the views of authors’ firms or their clients. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided was accurate as at November 2020, be advised that this is a developing area. Enquiries concerning reproduction should be sent to: [email protected] Enquiries concerning editorial content should be directed to the Publisher: [email protected] ISBN 978-1-83862-272-5 Printed in Great Britain by Encompass Print Solutions, Derbyshire Tel: 0844 2480 112 © Law Business Research 2021 Acknowledgements ADDLESHAW GODDARD LLP ANAGNOSTOPOULOS ASSOCIATION OF CORPORATE INVESTIGATORS BAKER MCKENZIE LLP BCL SOLICITORS LLP BDO USA, LLP BORDEN LADNER GERVAIS LLP BROWN RUDNICK LLP CADWALADER, WICKERSHAM & TAFT LLP CLARO Y CIA CLIFFORD CHANCE CLOTH FAIR CHAMBERS COOLEY LLP CORKER BINNING CRAVATH, SWAINE & MOORE LLP DEBEVOISE & PLIMPTON LLP DLA PIPER LLP FORNARI E ASSOCIATI FOUNTAIN COURT CHAMBERS FOX WILLIAMS LLP FRESHFIELDS BRUCKHAUS DERINGER GLEISS LUTZ GOODWIN GÜN + PARTNERS i © Law Business Research 2021 HERBERT SMITH FREEHILLS LLP HOMBURGER JAMES P LOONAM ESQ JENNER & BLOCK KINGSLEY NAPLEY LLP LATHAM & WATKINS LAW OFFICES OF PANAG AND BABU LINKLATERS LLP MARVAL O’FARRELL MAIRAL MATHESON MAYER BROWN MCGUIREWOODS MISHCON DE REYA LLP NAVACELLE NORTON ROSE FULBRIGHT LLP OUTER TEMPLE CHAMBERS PHILIPPI PRIETOCARRIZOSA FERRERO DU & URÍA – PPU PINSENT MASONS LLP RAJAH & TANN SINGAPORE LLP REBAZA, ALCÁZAR & DE LAS CASAS REED SMITH LLP ROPES & GRAY LLP SKADDEN, ARPS, SLATE, MEAGHER & FLOM (UK) LLP SLAUGHTER AND MAY SOFUNDE OSAKWE OGUNDIPE & BELGORE SULLIVAN & CROMWELL LLP TRENCH ROSSI WATANABE URÍA MENÉNDEZ ABOGADOS, SLP VON WOBESER Y SIERRA, SC WALDEN MACHT & HARAN LLP WILLKIE FARR & GALLAGHER LLP ii © Law Business Research 2021 16 Representing Individuals in Interviews: The US Perspective John M Hillebrecht, Lisa Tenorio-Kutzkey and Eric Christofferson1 16.1 Introduction When representing individuals in investigations, determining whether to consent to an interview and any interview itself can be pivotal. The following sets forth some potential pitfalls and suggests certain best practices. 16.2 Kind and scope of representation Even leaving aside the multifarious sorts of industries and issues that can be rel- evant to the representation of an individual, there are various kinds of representa- tions, presenting different types of challenges. 16.2.1 Representing current or former employees Most typically in sophisticated white-collar matters, a company is either conduct- ing an internal investigation into suspected misconduct or responding to a gov- ernment investigation (regulatory or criminal, or both) of similar misconduct. See Chapters 4 The former often morphs into the latter, one way or the other. In those contexts, on self-reporting to authorities the individual client is usually a current or former employee or board member. and 20 on Inevitably, the individual’s relationship with the company is crucial, and can whistleblowers materially impact counsel’s approach to the interview. At the most basic level, the company may or may not have an obligation to advance reasonable legal fees and expenses to the client.2 Even in the absence of a contractual or other obligation, the company will sometimes agree to do so. In either scenario, the company might impose a cap or other conditions on payments. In any event, there are significant advantages to the client establishing a co-operative and cordial relationship with 1 John M Hillebrecht, Lisa Tenorio-Kutzkey and Eric Christofferson are partners at DLA Piper. 2 See, e.g., 8 Del. C. § 145 (discussing advancement). 282 © Law Business Research 2021 Representing Individuals in Interviews: The US Perspective the company (including, at minimum, access to documents and other informa- tion) – although this is not always possible. Pool counsel 16.2.2 At times, largely for reasons of efficiency and economy, the client may be one of multiple individuals a single lawyer concurrently represent as a ‘pool’ of clients who are witnesses or potential witnesses in the same investigation – subject to the ethical rules governing conflicts of interest and confidentiality.3 This usually occurs where the members of the pool are viewed, at that time, as less culpable and whose interests are thought to be aligned. Such an arrangement presents obvious advan- tages to each individual. Pool counsel, by definition, obtains a broader perspective and usually has access to more documents than he or she would otherwise, has the benefit of each client’s recollection, and can use insights gleaned from the first client’s interview or interviews to prepare for subsequent client interviews. To be clear, it is usually best practice not to ‘cross-pollinate’ clients (by, for example, tell- ing one client what another said about a particular issue), but pool counsel can appropriately use such information to formulate questions and strategies. Before agreeing to represent multiple individuals, counsel must take substantial steps to ensure that there are no conflicts, document the risk of future conflicts and the waiver of any future conflicts in appropriate engagement letters, and remain hyper-vigilant for developing conflicts.4 The authors recently experienced a situ- ation in which it emerged – a year into representing a pool of individuals – that one client had negative information about a second client (information both had concealed), leading to significant issues during fraught negotiations with the gov- ernment regarding one of the two clients. Only the existence of an appropriate engagement letter forestalled more serious problems. Joint defence agreements 16.2.3 Although ‘entering into a joint defense agreement is often, indeed generally, ben- eficial to its participants, like skating on thin ice, dangers lurk below the surface’.5 These dangers are illustrated by court rulings disqualifying counsel based on a joint defence agreement, precluding counsel from cross-examining a defector who becomes a cooperating witness, and holding that communications thought to be protected by a joint defence agreement were not in fact privileged.6 Most of these risks can be mitigated if counsel for the participants consider, discuss and record in some fashion the parameters of their agreement, including the consequences of one 3 See generally Association of the Bar of the City of New York Committee on Professional Ethics, Formal Opinion 2019-4: Representing Multiple Individuals in the Context of a Governmental or Internal Investigation (Opinion 2019-4). 4 See generally Opinion 2019-4. 5 United States v. LeCroy, 348 F. Supp. 2d 375, 387 (E.D. Pa. 2004), as amended on reconsideration (10 January 2005). 6 See generally United States v. Hatfield, 2009 WL 3806300 (E.D.N.Y. 2009). 283 © Law Business Research 2021 Representing Individuals in Interviews: The US Perspective or more participants withdrawing from the agreement.7 On more than one occa- sion when the authors represented individuals, we received a voluminous quantity of documents from the clients’ former employers, all Bates-numbered to the effect that they were produced pursuant to a joint defence agreement, when there had been no discussion about any such agreement. The tendency of many practitioners to prefer informal joint defence agreements with no specific clarity or agreement on the consequences of withdrawal is puzzling, and the consequences can be severe.8 In some jurisdictions, including the Southern District of New York (SDNY),9 practitioners often prefer to use verbal joint defence agreements. While the agree- ment need not be recorded in writing, there are numerous advantages to doing so. Although courts may find the existence of a joint defence agreement, despite the agreement being purely verbal, the existence of a written document obviates this inquiry. In a December 2018 decision, a judge in the SDNY held that a former employee failed to establish a common interest agreement with his former employer – even though the individual’s lawyer emailed company counsel a draft document with the subject line ‘Common Interest Privilege