Companies large and small conduct internal corporate investigations every day. These investigations can have many causes: an employee placing a call to the company hotline warning of accounting fraud, allegations of sexual harassment, a grand jury subpoena being served on the company or a whistleblower lawsuit being filed. Whatever the triggering event (and the list is virtually infinite), companies launch investigations to try to learn whether improper or illegal conduct took place, introduce remedial measures where problems exist and to get ahead of the allegations.

A primary source of evidence in the internal investigation is to interview company employees and executives. While the investigators reviewing documents, text messages and emails is certainly vital, speaking to the people involved can shed light on possible innocent explanations to the claims, put relevant documents into context and determine if conversations about key events happened but weren't put in writing.

Diligent preparation for an internal investigation interview—whether conducted by in-house counsel or outside counsel—is of great importance. But corporate executives and others should carefully consider several key issues:

• Consider if you should attend the interview. If you believe you have engaged in wrongdoing that may violate criminal law, sitting for an interview might be foolish. The questions you are asked and the answers you provide could cause you criminal exposure should your employer turn over what you said to prosecutors. Of course, be aware that refusing to sit for an interview could get you fired. But most people would prefer unemployment over a prison term.
• Hiring a lawyer. In some circumstances, it is appropriate for an employee to hire an attorney—sometimes paid for by the company, sometimes not. If the employee feels that his or her conduct could result in personal liability, hiring counsel could be wise. After all, when the interview begins, the company's counsel will likely explain that the lawyer represents the company, not the individual, and that while the discussions are privileged, that privileged is owned and controlled by the company. In other words, the company's counsel is on the side of the employee when there's no divergence between the employee's best interests and the company's. But if those interests do diverge at any point, the company may be best served by pointing the finger at the employee in a civil lawsuit, with the company's regulator or at the Justice Department.
• Review documents and emails. Assuming the employee is provided with advance notice of the interview, the employee should wrack his or her brain trying to figure out the topics that will be covered. If successful in figuring it out, the employee may be wise to review documents and emails surrounding the events to recall what took place.
• Don't delete or alter data. When an internal investigation begins, sometimes key employees will receive a document preservation notice directing them not to destroy or delete data. Follow that directive! And even if such a directive isn't issued, going back and trying to wipe hard drives or other devices is foolish and often useless. Getting caught deleting harmful data could be a breach of company policies and, more seriously, could result in criminal violations. On top of that, there's a decent chance that copies of the harmful documents exist elsewhere, meaning that your efforts achieved nothing other than making you look guilty with something to hide.
• Assume the questioner knows all. In many instances, the lawyer conducting the interview will have interviewed others and reviewed tons of documents and emails in anticipation of speaking with you. The lawyer may also have consulted with expert consultants to understand complex subjects like accounting procedures, surgical processes and environmental science. This means that the questioner, perhaps someone with little background in your area of expertise, will walk into the interview knowing lots about the issues at stake, the emails you have received and the discussions you have had. Assuming the lawyer hasn't reviewed something or doesn't understand something is not wise. There is a good chance you will get caught obfuscating, complicating and denying the truth. This is bad for you in many ways, and may cause you legal and career jeopardy.
• Be serious. The lawyer conducting the interview has a serious and important job to do. If he or she appears relaxed and friendly, don't let this trick you into complacency. Your words and your demeanor are key. Do not make the mistake of not taking the interview seriously.  And make sure to answer questions in a thoughtful, truthful and straightforward manner.
• Tell the truth. Lying in an interview may result in two very unpleasant consequences. One, the lawyer questioning you could recommend that your employer terminate your employment. We have both done this before. And two, if the company decides to cooperate with the government and repeats your falsehoods, you could be charged with obstructing justice in a number of federal districts.

The internal investigation interview is a reality of life in corporate America today. Taking it very seriously and telling the truth is vital.

Dan Small is a partner in the Boston and Miami offices of Holland & Knight. The former federal prosecutor is the author of “Preparing Witnesses” and teaches continuing legal education programs. 

Michael E. Hantman is a Miami partner with the firm. Both are members of Holland & Knight's white collar defense and investigations team. Contact Small at [email protected] and Hantman at [email protected].