The General Counsel occupies a unique and often uncomfortable position when a significant corporate investigation is required. As the company’s chief legal officer, they are the natural first point of contact for an investigation concern and the natural coordinator of the organisation’s response. But they also have pre-existing relationships with the individuals who may be implicated, institutional loyalties that can create tension with the requirements of an independent investigation, and in some cases, their own potential exposure if the concern involves matters on which they have previously given advice.
This article addresses the specific questions that arise for General Counsel when a significant corporate investigation is needed, and how Bond Rees structures its engagement to support rather than complicate that role.
When the GC Should Instruct External Investigators
External investigation is most clearly warranted where: the investigation involves a subject with whom the GC has a close working relationship; the concern has a potential regulatory dimension that creates a risk of the GC’s own involvement being questioned; the investigation requires capabilities — digital forensics, surveillance, overseas investigation — that the legal function does not possess internally; or the credibility of the investigation outcome requires demonstrable independence from any internal function, including the legal team.
Managing the Privilege Question
Investigations conducted at the direction of General Counsel may attract legal professional privilege — an important protection where the investigation is conducted in contemplation of litigation. But the privilege position is not automatic, and it can be lost if the investigation is structured in a way that is inconsistent with a privileged engagement. Bond Rees works with external counsel and with GC to structure investigations in a way that preserves the privilege position where this is relevant and appropriate, without sacrificing the evidential quality of the investigation.
Reporting and Governance
The question of who the investigation reports to is as important as who conducts it. Where the investigation concern reaches the level of the GC’s own reporting line, the reporting structure needs to be adjusted: direct reporting to the audit committee chair, to independent NEDs, or to the board as a whole, bypassing the management hierarchy. Bond Rees is experienced in managing these governance structures and in producing investigation findings in a form that is appropriate for each reporting audience.
Regulatory Interface
Where the investigation concern has a regulatory dimension — in a financial services firm, a regulated professional, or any other regulated entity — the GC needs to assess from the outset whether and when the regulator needs to be informed. Bond Rees works alongside regulatory counsel to ensure that the investigation is conducted in a manner consistent with these obligations and that the investigation record supports rather than undermines the organisation’s regulatory position.
General Counsel facing a significant investigation concern? Contact Bond Rees for expert, confidential support.
