The Political Minefield of Internal Investigations:

1. The Political Minefield of Internal Investigations: Practical Pointers for Tribal In-House Counsel to Avoid an Explosion Tribal In-House Counsel Association/Michigan State University Indigenous Law Conference October 26, 2017

2. Introductions Venus McGhee Prince, Kilpatrick Townsend & Stockton LLPLori Madison Stinson, Attorney General, Poarch Band of Creek IndiansBrian K. Pierson, Godfrey & Kahn LLP

3. Overall Disclaimer • These issues are sensitive, internal matters, and Indian country is a small legal world • Nothing we say is intended to disparage or judge any particular situation or tribe • By nature, these situations are fact- and context-sensitive based on specific tribal laws and policies • Our presentation is focused on issue-spotting and best practices based on our experiences • We wish to foster productive conversations that can help during very uncomfortable situations

4. What Types of Internal Investigations Do (or Should) the Tribe’s Laws Contemplate? • The different investigations and laws can overlap and trigger different investigative authorities and processes • Personnel • Officials • Ethics • Regulatory (Gaming, TERO, etc.) • Judiciary • Criminal

5. Where Do You Start? • What tribal law or policy applies? • Where is it? • To whom does it apply? • Is there a timeframe? • What are its investigative procedures? • Do you have a budget? Who controls your budget? • Do you have a conflict between governing laws or policies? • What level of due process is needed? • At-will for employees v. elected official position

6. Who Makes the Decision and How? • Tribal law or policy dictates—consistency is best • Options for Decision-Maker • Tribal Council • Board or Committee • Senior Management • Options for Communicating Decision • Verbal • Written • Personnel action form/letter • Decision or opinion • Remind clients that a criminal action might (or should) be outside of their decision-making authority

7. What Federal Laws Might Be Triggered? • 18 U.S. Code § 666 - Theft or bribery concerning programs receiving Federal funds • 18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States • 18 U.S. Code § 1163 - Embezzlement and theft from Indian tribal organizations • Racketeering-Influenced and Corrupt Organizations (RICO) – Non-prosecution agreements with tribes in Tucker case • Marijuana enterprises?  

8. What Role Should In-House Counsel Serve? • Considerations • Role (Investigator, Advisor, etc.) • Size • Single Attorney • Small Department • Large Department • Budget • Relationship to Council and Businesses • Facing an Investigation • How to decide whether to appoint special counsel • Level of employee? • Elected official? • Prior involvement by Legal? • How to choose special counsel

9. How Does In-House Manage (and Survive) the Process? • Confidentiality • How to handle Council requests and communications? • Any need to maintain within Legal? • Ethics • What if in-house needs to initiate an investigation? • Recusals/Ethical Walls—do they work?

10. A Dozen Do’s & Don’ts of Internal Investigations 8219338

11. 1. Listen For The Whistle • Develop process for employees to report concerns: • Duty to report • Confidentiality to protect reporting employee • No retaliation • Educate employees regarding duties and processes • Hotline • Ombudsman • Be approachable • Open door • Follow up • Required component of “effective compliance and ethics program”

12. 2. Don’t Shoot Before You Aim • Create an organized plan to gather information • Determine the proper scope of the investigation • Determine pervasiveness of wrongdoing • When and where did it start? • Who knew or should have known? • Determine documents to be gathered and the method for locating them • Consider internal and third party witnesses to be contacted

13. Don’t Shoot Before You Aim • An internal investigation must be broad enough to: • Determine whether misconduct actually occurred • Discover evidence helpful in responding to actual or potential government investigation • Enable company to take remedial action • Scope may be restricted by: • The expense and disruption caused by the investigation • The need to maintain confidentiality • Scope should be re-evaluated at various stages of the investigation • Corporation must remain flexible and agile • Update the plan as needed as new information becomes available

14. Don’t Shoot Before You Aim • Assess level of urgency, create a timeline • May need to complete investigation and make disclosures before federal or state government (independently) becomes aware of the matter • Council may need to make business decisions based on findings

15. 3. Find the Information Where does relevant information reside? • Electronically stored information • Emails • Voice mails • Phone records • Text messages • Word documents • Financial records • Any document authorizing a disbursement

16. Find the Information • Volume of documents stored electronically may be immense • Need for targeted and cost-effective search methods • Keep track of crucial documents • A log should be used to identify and organize important documents (who, where, when) • Consider retaining outside consultant to manage document collection and management process • Enhances credibility in the eyes of the federal government government • Outside consultant may be able to provide helpful testimony regarding thoroughness and integrity of process

17. 4. Don’t Destroy Documents • Issue a document hold/retention memo to IT Dept. or selected custodians • An inclusive document retention policy should be promulgated on learning of misconduct • Failure to retain documents may result in obstruction charges. Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (accounting firm indicted for shredding documents) • Coordinate with IT department to target tapes, servers, hard drives, thumb drives, PDAs and other electronic storage • Litigation hold memo upon knowledge of potential claim

18. 5. Identify Your Client • Multiple groups of actors in a tribe make the attorney-client relationship complex • Management, Council, employees: Who does counsel represent? • Answer: The Tribe • Always make it clear that counsel represents the Tribe • Failure to be clear could result in inadmissibility of statements/admissions and disqualification of counsel • “Upjohn” warnings (Attorney to tribal councilor: “I’m not your lawyer. I’m the Tribe’s lawyer.”) • May be permissible to represent officers and employees as well if their interests are not adverse.

19. Identify Your Client • Model Rule 1.13: Organization as Client • A lawyer representing an organization may also represent directors, officers, employees, shareholders, or other constituents, subject to Rule 1.7 • Model Rule 1.7: Conflicts of Interest • A lawyer may not represent a client if the representation will be directly adverse to another client, or if there is a significant risk that the representation of one client will be materially limited by responsibilities to another client

20. Identify Your Client • To avoid complication, separate counsel for employees may be advisable • Employees who may be culpable almost certainly need separate counsel • Employees not involved in wrongdoing and who reported it to management can probably be represented by corporation’s counsel • Between these two extremes, make sure to maintain flexibility • Joint representation can restrict options • When in doubt, secure separate counsel

21. 6. Do Come Armed • Use documents to shape line of questioning • Mark as exhibits and attach to interview memoranda and report of investigation

22. 7. Don’t Start at the Top • Tribal employees are a primary source of information • Interview after review of documents: personnel may shed light • Use documents to shape line of questioning • Mark as exhibits and attach to interview memoranda and report of investigation • Interview personnel outside presence of senior executives to encourage candor • Interview lower level and least culpable employees first • “Pyramid” investigation

23. 7. Don’t Be A Lone Ranger • Staff interviews with a questioner and a note taker • Questioner can observe demeanor and body language • Listen to what person is saying AND not saying • Don’t give up. Follow up because you may only have one chance to conduct interview

24. 8. Do Be A Historian • Take copious notes • Prepare accurate memoranda of interviews • Take steps to preserve attorney-client and work product privileges

25. 10. Don’t Leak • Confidentiality is paramount • During investigation disclose information only “as needed” to accomplish goals • Understanding of facts likely to evolve as investigation progresses • Minimize risk of disseminating incorrect information • Avoid premature conclusions/corporate pressure to take action

26. 11. Be Prepared for “60 Minutes” Call • Media will be interested in high-profile cases • Consider how to convey message • Avoid harm to legal status • Avoid appearance of disingenuousness to prosecutors • Comments by corporate spokespersons may be used as admissions • Minimize risk of negative publicity • Avoid ill will of consumers and business partners • Hazard of “No comment:” Allows media to spin the story • Media relations consultant may be helpful • Assist in crafting message • Manage relationships with media outlets

27. 12. Don’t Report Before You’re Ready • Up the ladder • General Counsel • Administrator(s)/CFO • Council • Audit Committee • Law enforcement • Regulatory agencies • Other constituencies • Employees • Tribal Members • Business partners • Analysts/media

28. Don’t Report Before You Are Ready • Identify the ultimate goals of the corporation • Avoid an indictment of the corporation • Minimize exposure to civil liability • Timing and method of communication with the government may vary • Early self-disclosure may be appropriate • Prevent harm to public • Preempt a whistleblower • More often, investigate wrongdoing first, and respond to inquiries from the government • Give candid responses that are limited to the specific inquiry • Establishing a positive dialog can aid relationship with prosecutors

29. Don’t Report Before You Are Ready • Investigation should culminate in oral or written report • Present summary of background, the method of investigation, a discussion of evidence, an application of law to the evidence, and any remedial measures • Preserve work product privilege by limiting distribution

30. Don’t Report Before You’re Ready • Consider whether and how to disclose to the government • Release of report may waive attorney-client and work product privileges • Release of report may render report discoverable to civil plaintiffs • Oral report or attorney proffer may allow corporation to disclose facts without waiving privilege • Oral report may protect investigative report from discovery in civil lawsuits

31. Dozen Do’s & Don’ts of Internal Investigations • Do listen for the whistle • Don’t shoot before you aim • Do find the information • Don’t destroy documents • Do identify your client • Do come armed • Don’t start at the top • Don’t be a lone ranger • Do be a historian • Don’t leak • Do be prepared when “60 Minutes” calls • Don’t report before you are ready