In this post-Enron era, a great deal of thoughtful guidance has been issued regarding corporate governance. General counsel have in many instances borne the responsibility of converting thought to action. Compliance programs have become de rigueur. Many internal investigations have been conducted, often by outside counsel with forensic consultants because of the nature, level or pervasiveness of the misconduct and the need for independence.
While these efforts surely have enhanced business integrity, the question arises whether there is an approach that can be taken to pre-empt fraud and abuse. The case is made out below for general counsel, through outside counsel and, where warranted, forensic consultants, to employ the proactive investigative model used by law enforcement in organized crime investigations.
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