When it comes to government inquiries, in-house counsel has it rough. We've seen corporate counsel become scapegoats for bungled government inquiries. With in-house counsel and company executives receiving harsher penalties for company wrongdoing in recent years, taking precautions is essential.
Here are a few tips to keep in mind when responding to government inquiries.
- Treat each inquiry individually. From the FDA to the SEC, inquiries from government agencies can call for a variety of actions on your part. As a first step, think about what the government is after. Does it involve the whole company, another company, or an individual employee? Does the request concern business operations?
- Evaluate the request -- and whether it goes too far. Remember, a law enforcement action could be shrouded as an informal regulatory request. It's crucial to delineate the difference between a routine request and something more serious.
- Consider hiring outside counsel. Even if you believe you have a grasp of the issues, it's always helpful to consult with outside counsel -- especially if they have good rapport with the government agency or have solid experience handling such requests. This is also a great way to potentially limit your company's liability should anything go awry.
- Create a paper trail. As a general rule of thumb, the company's interactions with the government should be transparent and well-documented. The same goes for communications with outside counsel. Remember, good records management goes a long way.
- Cooperate with the request, but plan ahead. As in-house counsel, you need to protect yourself. Make goals or objectives before responding to an inquiry and don't make promises to the government that you can't deliver on, suggests In House Counsel. Don't hide documents, but also don't be so quick to furnish information that isn't feasible or reasonable from a business perspective.
Be candid with the feds, but do your due diligence to make sure you don't get taken for a ride by them at your own peril. Your goal should be to limit your company's (and your own) exposure to liability.
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