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AVOID OBSTRUCTING JUSTICE

Learn the key principles for internal investigations to ensure compliance and prevent obstruction of justice. Understand the importance of protecting privileges and informing employees.

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AVOID OBSTRUCTING JUSTICE

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  1. AVOID OBSTRUCTING JUSTICE Obstruction of justice is defined as the willful endeavor to “obstruct, delay or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator.” 18 U.S.C. § 1510

  2. MISPRISION OF A FELONY • During the course of an internal investigation, the Corporate Compliance Officer may become aware of a crime previously committed. If so, the Compliance Officer should be sensitive to the Federal Misprision of Felony Statute. 18 U.S.C. Section 4.

  3. TAMPERING WITH A WITNESS, VICTIM OR AN INFORMANT • It is a crime to engage “in misleading conduct towards another person” with the intent to “influence, delay, or prevent” a witness’ testimony or to “cause or induce any person” to “withhold” testimony or documents. 18 U.S.C. § 1512(b)(1)(2).

  4. Protect Privileges • The most critical concern for the Corporate Compliance Officer is to protect the corporation’s attorney/client and work product privilege. This can be done by working under the auspice of counsel, properly instructing all persons involved in internal investigations and by appropriately marking as privileged all memorandum, letters and other documents generated during the course of the investigation.

  5. UNDERSTAND SCOPE OF REPRESENTATION; FULLY INFORM EMPLOYEES • Corporate Compliance Officer should be careful to protect the rights of the employees who are interviewed and the corporation.

  6. Employees Must Cooperate in Investigation • Employees have the duty to cooperate with internal investigations.

  7. Expect to Disclose Your Findings • The Corporate Compliance Officer should expect that the results of the investigation will ultimately be disclosed to the government. All government providers serve at the government’s pleasure. Thus, faced with either disclosing information or losing its government contracts, most corporations disclose otherwise privileged material.

  8. THE DO’s and DON’Ts OF INTERNAL INVESTIGATIONS Gregory P. Miller, Esquire Thomas H. Lee, III, Esquire Miller, Alfano & Raspanti, P.C. Dechert Price & Rhoads 1818 Market Street, Suite 3402 4000 Bell Atlantic Twr. Phila., PA 19103 1717 Arch Street (215) 972-6400 Phila., PA 19103 (215) 994-2994

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