Corporate Investigation Services for General Counsel

When General Counsel Bring In an Outside Investigator

A legal department can answer many questions on its own. An outside investigator earns a place when the facts are disputed, the people involved are senior, or the answer has to hold up later in front of a board, a regulator or a court.

An allegation against a senior executive. A hotline report, an anonymous letter or a departing employee's complaint names someone near the top. Anyone in that person's reporting line is poorly placed to run the inquiry, and the engagement should come from counsel or the board instead.

Suspected fraud or misappropriation. Expense patterns, vendor payments or inventory figures do not reconcile. An accounting question goes to the accountants. The investigator's question is whether someone acted on purpose, how, for how long and who knew.

A whistleblower complaint with regulatory exposure. Counsel needs the facts quickly, and the process itself must not discourage the person from reporting to a regulator. That constraint is set out below.

A third party that is not what it appears. A vendor, distributor or counterparty may have undisclosed ties to an insider. Business filings, court dockets and property records can show who stands behind an entity and how it connects to people inside the company.

Facts before a dispute. Before filing or answering a claim, counsel wants to know what the public record says about the other side: its litigation history, related entities and assets of record.

A board or audit committee request. When a committee wants a view independent of management, the investigator is engaged by the committee or its counsel and reports to them.

What an Outside Firm Adds to the Legal Department

Three things: independence from the people under review, capacity the department may not have in-house, and a file built to be explained later.

The Justice Department's Evaluation of Corporate Compliance Programs, which prosecutors use to assess a company's compliance program, asks how a company ensures that investigations are "properly scoped", what steps it takes "to ensure investigations are independent, objective, appropriately conducted, and properly documented", and how it decides who should conduct an investigation. A general counsel who may one day have to describe an investigation to prosecutors, auditors or a board will want those answers on file before the work starts, not reconstructed afterwards.

Fortaris works with in-house counsel, boards and audit committees, and that broader practice is described on its corporations and boards page.

Structuring the Engagement Through Counsel

Privilege is decided at the start, not after the first report. In Upjohn Co. v. United States, the Supreme Court held that the attorney-client privilege protected communications that employees made to company counsel at the direction of corporate superiors in order to secure legal advice. The Court also said that the privilege protects disclosure of communications, not of the underlying facts, and that it decided only the case before it.

Federal Rule of Civil Procedure 26(b)(3) separately protects documents prepared in anticipation of litigation by or for a party or its representative, a term that includes a consultant or agent. That protection can be overcome on a showing of substantial need. Even then, the court must protect the mental impressions, conclusions, opinions and legal theories of the party's attorney or other representative.

Preservation comes before interviews. Company devices, email accounts and records that bear on the allegation are secured under counsel's direction before anyone is questioned, so the record is fixed before the people involved learn of the inquiry. A device taken out of use is sealed and logged, with a note of who handled it and when.

In practice, the engagement letter runs through counsel, names the client and says who receives each report. Fortaris engagement letters can be drafted accordingly, with deliverables sequenced to preserve privilege through the life of the matter, and some engagements are structured around oral findings only. Whether privilege attaches to a given investigation depends on its facts and the court, and that call belongs to counsel. Outside firms that bring Fortaris into a matter will find their side of the arrangement on the law firms page.

Rules That Shape the Investigation

Interviews and regulators. SEC Rule 21F-17(a) provides that "No person may take any action to impede an individual from communicating directly with the Commission staff" about a possible securities law violation, including by enforcing or threatening to enforce a confidentiality agreement against that communication, with a narrow exception for certain information tied to legal representation. Confidentiality instructions given at interviews, and any acknowledgment forms, should be reviewed by counsel against that rule.

Consumer-report rules. A report from an outside firm about an employee can fall under the Fair Credit Reporting Act. The Act excludes certain communications made to an employer in connection with an investigation of suspected misconduct relating to employment, or of compliance with laws, regulations, self-regulatory organization rules or the employer's preexisting written policies.

The exclusion has conditions: the communication cannot be made to investigate creditworthiness, and it can be shared only with the employer or its agent, government bodies, a self-regulatory organization, or as the statute otherwise allows. If the employer takes adverse action based on it, the employee must receive a summary of the nature and substance of the communication. Whether an engagement fits the exclusion is a question for counsel at scoping.

Records that belong to someone else. A company's own ledgers, email and devices are company records, subject to its policies and the law where employees work. An employee's personal bank records are not. 15 U.S.C. § 6821 makes it a violation to obtain, or to ask another person to obtain, a financial institution's customer information through false, fictitious or fraudulent statements. Fortaris does not pretext. Records that belong to others come through legal process.

What the Investigator Does Not Decide

The investigator documents evidence. Counsel advises on legal exposure, on privilege and on any disclosure to authorities. The company decides on discipline, claims and changes to management. A finding is not a determination of guilt, and an investigation does not settle a dispute.

Conflicts are checked before work starts, and any connection to the company, the people involved or the other side of a dispute is disclosed. Findings go in the file whichever way they cut, including when they clear the person who was suspected.

What Counsel Receives

A file built for the person who will act on it. Each finding names its source document and date. Confirmed facts are kept apart from inferences. Open questions are stated rather than smoothed over. The form of the deliverable, written or oral, interim or final, and who receives it, is agreed with counsel before work begins.

How an Engagement Begins

Fortaris engagements begin with a confidential conversation about the matter, its privilege posture and the specific questions counsel needs answered. Fortaris works nationally, and for matters that require activity in other jurisdictions it coordinates with licensed in-state specialists. The methods behind this work are set out on the investigative services page.

This page is general information, not legal advice. Federal rules discussed here were checked as of November 8, 2026.