Leslie Moonves

For the second time this year, Debevoise & Plimpton has come under scrutiny for the way it handled confidential witnesses amid an internal investigation into sexual misconduct. In the most recent incident, news reports have stated that confidential witnesses may have been compromised when a draft report on sexual misconduct allegations at CBS Corp. leaked to the press.

Debevoise's Mary Jo White was tapped earlier this year, alongside Covington & Burling's Nancy Kestenbaum, to conduct an internal investigation into alleged sexual misconduct on the part of former CEO Leslie Moonves, as first reported by The New Yorker, and former “60 Minutes” executive Jeff Fager. The findings of the investigation may play into a decision that CBS's board is expected to make in January regarding whether Moonves was fired for cause—a determination that would impact whether he receives a potential $120 million severance package.

The internal investigation appears to be ongoing, although multiple news reports indicated that it is in the final results and the findings will likely be presented to the CBS board of directors soon. But the investigation has drawn scrutiny after The New York Times viewed and published details Dec. 4 and Dec. 6 from a draft of the team's investigative report, including descriptions of “transactional” oral sex that Moonves allegedly received from CBS employees. Moonves, represented by Dechert's Andrew Levander, has denied the sexual misconduct accusations.

In light of the revelations in the draft investigatory report, the Wall Street Journal, Vanity Fair and the New York Post have all reported this week that CBS's current top brass is concerned about the company's legal exposure in light of the public airing of the investigation's draft findings. Those concerns include a worry that employees and other witnesses who cooperated with the internal CBS investigation were promised confidentiality and that the leaks may have compromised that expectation of secrecy, according to this week's news reports.

The investigative team acknowledged those concerns in an emailed statement Thursday.

“Covington and Debevoise take this matter very seriously and are working to determine the facts,” said a statement attributed to the independent investigators from both firms.

High-profile internal investigations can be fraught for lawyers who lead them and it is not uncommon to hear criticism that a law firm wasn't sufficiently independent or that it went too easy on the subject of the probe. Those sorts of criticisms were central to a lawsuit filed last month by current and former Dartmouth College students who claim the school and an outside lawyer conducted a faulty investigation into sexual misconduct allegations against three former professors at the Ivy League school.

Mary Jo White

The CBS investigation leaks, however, have thrust Debevoise and Covington into the spotlight for different reasons. And specifically for Debevoise and White—a former top federal prosecutor in the Southern District of New York and head of the U.S. Securities and Exchange Commission for several years during the Obama administration—it is not the first time an investigation has faced scrutiny over its handling of confidential witnesses.

Early in 2018, The American Lawyer reported that White apologized and conceded that an error had been made with respect to witnesses in a sexual misconduct investigation of T. Florian Jaeger, a cognitive science professor at New York's University of Rochester. In that case, when the Debevoise investigators put out their report on Jan. 11, at least some materials made public with the report briefly exposed the names of confidential witnesses before they were amended to make everyone anonymous.

White appears to now be dealing with fallout on a similar issue in the wake of the CBS leak, although it is not clear at this point that any confidential witnesses were, in fact, exposed. Still, the Wall Street Journal's report noted that White had apologized to the CBS board in a meeting after the leak.

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