Canadian Lawyer

June 2021

The most widely read magazine for Canadian lawyers

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Page 14 of 35 13 INTERNAL INVESTIGATIONS SPECIAL PROMOTIONAL FEATURE Rapid, well-planned internal investigations minimize damage, lend credibility to result COVID-19 pandemic no barrier to swift, smooth threat response IF SOPHIE PERREAULT, a partner in the litigation group at the Montréal office of Langlois Lawyers, could give businesses one piece of advice when it comes to internal investi- gations, it would be this: Time is of the essence. "In addition to being unprepared, one of the most common errors I see is not attending to a threat fast enough," says Perreault, who is often retained to conduct thorough and independent internal investigations in the wake of a threat. "A quick response is often very important to minimize risks, and I was concerned that with the pandemic and with people working remotely, I would see more actions being delayed, but I didn't see that — companies were able to react quickly and conduct an effective investigation quite rapidly." Threats come in many different forms and while the regular frauds — accounting, theft — are still common, there are two trends Perreault is seeing more of: cyber- attacks and harassment. Cyber-threats are rising as systems become more complex, and all enterprises are exposed big and small. Reacting rapidly to minimize impact is critical with these attacks espe- cially, as, the more time passes, the bigger the damages the company will suffer. This also applies to harassment, where it's well known that if an organization knows about inappro- priate behaviour and doesn't react quickly, it often gets worse. One way to ensure a swift response is to plan ahead and be prepared before the threat materializes. In the cyberattack example, a company might need an outside IT specialist, and if it has already identified the firm it will use, "the morning of the threat, you can react faster and save valuable time," Perreault says. "When the threat is there, there's an urgency to react — it's not the time to plan or reflect on what steps to take. I advise companies to have a game plan, in the form of a policy or internal guideline, so they can just put their plan into action. The process is, therefore, efficient and risks are minimized." A call to in-house counsel is routine, but who needs to be informed in the PR depart- ment? IT? Accounting? What external advice is needed? Having one responsible person identified in advance, with the phone numbers to reach relevant players, is a necessary step and allows an organization to immediately react in the most appropriate way. When it comes to the internal investigation, there are four elements that are essential for a reliable report and targeted recommenda- tions. First, retain a trained and independent investigator with a clear mandate for what the investigation is about. Second, the investigation should be exhaustive in the sense that all poten- tially relevant issues are identified and pursued where appropriate. Confidentiality is third, with thought put into the flow of information to protect anything privileged or sensitive. It helps to carefully choose a small circle of people to be kept in the loop. Finally, speed again — a rapid and well-planned investigation minimizes damages and lends credibility to the result. What the pandemic has changed for inves- tigations is a key part of the process. When Perreault interviews witnesses, she says she prefers conducting them in person to assess credibility, demeanour and how co-operative their behaviour is — and that's not an option in a pandemic environment. "I always insist we proceed with video conference more than over the phone because I want to see who I'm talking to and for them to see me also," she says. "Video conferencing is effective — but once the pandemic is over, we'll return to meeting in person." Langlois Lawyers is Québec's largest independent law firm, with nearly 150 practising lawyers based in Montréal and the city of Québec, and close to 300 team members working to provide its clientele with a complete range of high-quality legal services in civil and commercial litigation, business law and labour and employment law. Having earned a reputation for excellence, the firm received numerous distinctions in 2020, which include being named Regional Law Firm of the Year in Canada by Chambers and Partners and ranking first among the Top 10 Quebec Regional Law Firms according to Canadian Lawyer. Brought to you by "When the threat is there, there's an urgency to react — it's not the time to plan or reflect on what steps to take. I advise companies to have a game plan, in the form of a policy or internal guideline, so they can just put their plan into action." Sophie Perreault, Langlois Lawyers

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