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The first decisions in an investigation are usually made before anyone knows what happened. In-house counsel makes most of them.
Scope, supervision, information flow, privilege, and external support. These calls get made early, often under pressure, and they shape the credibility of everything that follows.
Part 2 of our Investigations series sets out the questions we work through with in-house counsel: whether to investigate at all, who should supervise, how to protect privilege across jurisdictions, when external support improves the outcome, and what record the organization will rely on if proceedings follow.
The answers are rarely straightforward. Asking the questions early is what makes them defensible.
Key Considerations for In-House Counsel
The earliest decisions in an investigation are usually made before anyone knows what happened. In-house counsel makes most of them.
Scope and Supervision
Early decisions shape the credibility of the entire process.
- Start narrow, or start broad?
- Would a narrow start look managed in hindsight?
- Who supervises the investigation?
- What is the right role for management and the board?
- Should in-house counsel stay at arm's length?
Information Flow
Investigations involve sensitive legal and business issues from day one.
- How is confidentiality kept need-to-know?
- How is privilege protected across jurisdictions?
- When do preservation measures begin?
- Do third parties need to preserve documents?
- What do privacy laws require before collecting data?
External Support
Even experienced in-house teams may need additional resources.
- Would external support improve credibility or efficiency?
- Is a multidisciplinary team required?
- Regular counsel, or independent counsel?
- Does the team have comparable experience?
- How will costs be forecast and managed?
Where this could lead
Consequences often reach well beyond the original issue, and must be assessed long before the investigation ends.
- What findings are reasonably possible?
- Are disciplinary consequences likely?
- Is the organization ready for civil, regulatory, or criminal implications?
- How will reputational fallout be managed?
- When should insurers or coverage counsel be involved?
The Record
A defensible investigation requires a defensible record.
- A formal report, or something less formal?
- Privileged and non-privileged versions?
- How is work product protected from disclosure?
- What record will the organization rely on if proceedings follow?
The Bottom Line
There are no standard answers to these questions.
There is only whether you asked them early enough.
Want to learn more?
Join us for Risk, Reputation and Response: Navigating Internal Investigations.
- Monday, September 21, 2026
- 12:00 p.m. to 1:30 p.m. ET
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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