Canadian Lawyer InHouse

21 CANADIANLAWYERMAG.COM/INHOUSE NOVEMBER/DECEMBER 2015 Another signifi cant call for companies to make once an external investigation is commissioned is whether it is appropriate to retain a law fi rm that already provides sig- nifi cant legal services for that corporation. Devereux says it depends on the nature of the investigation. "There are times you will The next step is to decide whether to re- tain external counsel for an investigation and Devereux says that often depends on the gravity of the allegation. If it is unlikely there are going to be signifi cant regulatory or public relations issues, then the matter can probably be investigated by internal staff. "If you have an issue that might expose the company to real risk with regulators or media," then it may be necessary to seek an outside fi rm to investigate, says Devereux. Once the decision is made to retain a fi rm to conduct an internal investigation, what follows next is crucial, says Andrew Matheson, a partner at McCarthy Tétrault LLP in Toronto. "Companies need to be mindful of what the reasonable scope is of the investigation. The counsel instruction memo at the outset must have a defi nite scope. If it is overbroad, it could end up be- ing destructive for the company and a self- sustaining engagement for a law fi rm. You don't want it to become an endless saga," says Matheson, who specializes in white- collar defence and investigations and who began his legal career working for the late Edward Greenspan. Once the scope of the investigation has been defi ned, "it has to be a genuine and principled fact-fi nding exercise," says Matheson. If it turns into a "scapegoating" exercise or an attempt to blame the wrong- doing on a few individuals, that risks under- mining its credibility, he adds. There are potential problems with regu- lators and investors if there are public con- cerns raised about a company and it does not investigate the allegations fairly, says Alexander Cobb, a partner in the Toronto offi ce of Osler, Hoskin & Harcourt LLP. "My view is that the market will punish you mercilessly if they don't think they can trust the information you have released publicly," says Cobb, who has conducted numerous cross-border investigations for the fi rm's clients. A fl awed investigation will also not sit well with regulators. "If they think the company has created a scapegoat, they will see through that and you will be worse off. If you are forthcoming, you will take a hit, but you should be able to deal with it," Cobb says. Robidoux says it's a virtual certainty that any major internal investigation will "be challenged after the fact" by regulators or plaintiff side litigators, so the process must be credible. At the same time, "the investigation needs to be calibrated to the nature of the al- legation" so it is not overbroad, she adds. Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS FOR L AWYERS AND NON - LAWYERS law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] ntitled-3 1 2015-03-02 9:02 AM

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