Independent legal advisors (ILAS)
“They are assiduous in protecting their clients from media exposure and have a discreet approach that not all firms mirror.”
THE LEGAL 500 2021
Recent years have witnessed an exponential rise in corporate internal investigations.
When a large institution suspects misconduct, it will increasingly appoint external professionals, including lawyers and forensic accountants, to investigate and prepare a formal report. An essential aspect of this work is to understand, in as much detail as possible, the factual background to the allegations. This involves reviewing the emails, documents and telephone calls that may be relevant to the allegations. It also frequently requires interviewing directors and employees, so that their recollections and responses to particular documents can be analysed.
In some internal investigations, interviewees attend such interviews without seeking legal advice beforehand. They may have concluded that a lawyer is unnecessary, or the possibility of instructing a lawyer may not have occurred to them. In other internal investigations, the company may suggest, in advance of the interview, that the interviewees seek independent legal advice. The name of a preferred lawyer – or a panel of preferred lawyers – may be proposed. Such lawyers are frequently referred to as ILAs or “independent legal advisors”. Their role is to provide legal advice to the interviewee that is independent from the advice provided to the company.
Being asked questions in an interview by experienced investigations lawyers can be a daunting experience. You may be given little information about the scope of the investigation, the allegations being investigated and whether you are suspected of being complicit in those allegations. You may be unaware whether a regulator is also investigating the allegations, whether the record of the interview will be given to any third party, and whether this record could be used as evidence against you in criminal or regulatory proceedings. You may be concerned about the risk of failing accurately to recall historic events, the risk of potentially incriminating yourself and what you should do if you are asked questions about complex documents prepared many years ago.
The dangers of attending internal interviews without any legal advice are manifold. It is therefore critical to have confidence that the lawyer you instruct has genuine expertise in acting for individuals in criminal and regulatory investigations, understands the full ramifications of an internal interview, and will engage constructively with the company’s lawyers whilst remaining scrupulously independent and acting in your best interests.
At Corker Binning, our lawyers have many years’ experience in acting for interviewees in internal investigations, particularly investigations relating to complex allegations, including allegations of corruption, fraud and other financial irregularities, as well as whether particular individuals complied with the professional or ethical standards expected of them. We have worked opposite numerous City firms who are instructed to conduct these investigations. Most importantly, we understand how important it is that an interviewee gives answers which are not only accurate, but which place the interviewee’s relationship to the allegations within their proper commercial context.
Ultimately, if you have been asked to attend an interview in an internal investigation, instructing an ILA means not only that you will be placed in a more informed position about your exposure and the consequences of being interviewed, but it is also likely to improve the reliability and quality of the evidence that you give. This benefits not only you but your employer, who will be provided with a better factual platform for understanding the extent of any misconduct.
- Acting for numerous individuals interviewed in corporate internal investigations conducted by banks into alleged manipulation of benchmark rates, including LIBOR and EURIBOR, as well as allegations of manipulation of the FX markets
- Acting for numerous individuals interviewed in corporate internal investigations conducted by companies being investigated by the SFO, including individuals in the Glencore, Unaoil, British American Tobacco and Petrofac cases
- Acting for a well-known former senior executive at the BBC interviewed in the investigation led by Lord Dyson into allegations of impropriety arising from the conduct of the Panorama interview with Princess Diana
- Acting for a senior individual in the investigation led by Alison Levitt QC into allegations of impropriety arising from the handling of a Treasury Management audit at the Royal Institute of Chartered Surveyors