The notice of a grand jury ­investigation of a company often starts in this fashion: in-house counsel arrives at the corporate office in the morning to be told that a company official has learned that several of his employees were visited by government agents the night before requesting an interview. The official is not sure what government agency is involved, and how many employees were contacted. He reports that he is running it down. It takes at least until the afternoon to determine the identity of the agents, the identity of the employees contacted, and the subject matter of the inquiry. The report from the supervisor usually omits the most important information, “what did the employees tell the agents.”

In-house counsel must quickly employ outside counsel to determine the scope of the investigation, how company employees or officials are involved, the need for a grand jury, and the need for unannounced interviews of employees at their homes. It is important to get as much information as possible about the possible criminal violation and who may be involved. The existence of the investigation means that the government has come across some evidence of wrongdoing; perhaps the ­prosecutors have not discovered the entire problem, but in-house counsel cannot wait to see what they find. It is possible that there is an employee who is a ­whistleblower ­giving information to the government. Only outside counsel with experience in ­white-collar matters can handle such an engagement. A local ­criminal lawyer who deals mainly with street crime is not the choice. Another reason for outside counsel is that the ­investigation may involve matters that house counsel has handled; therefore, house counsel may be a potential witness.

A word of caution. Many large law firms have departments described as corporate or business investigation departments. These are generally staffed to perform large scale investigations of corporations to determine any malfeasance by corporate officers or employees. They operate with large staffs, partners and associates with laptops that could be costly. The attorneys are generally not defense minded, and rarely go to trial in defense of a corporation or corporate officials. These units are often staffed by former prosecutors who are operating as civilian prosecutors. There are many smaller firms that are in business of defending a corporation or corporate officials. Michael J. Engle, a white-collar defense attorney, offered this advice, “When ­selecting outside attorneys, in-house counsel should always request a ­proposed budget. Does the client want the functional equivalent of a private prosecutor or a more defense oriented advocate leading the matter? How many lawyers does this investigation really require? These are key questions for house counsel and the client when deciding to engage the services of a law firm.”