"Today’s business leaders are increasingly likely to face a decision that seldom confronted their predecessors: whether to conduct an independent investigation to help resolve a legal, regulatory, or corporate integrity crisis," said Howard T. Anderson and Edwin Stier, authors of the report and attorneys with Steir Anderson, LLC, which specializes in independent investigations.

Before the 1980s, companies traditionally "circled the wagons and mounted a vigorous defense" when under attack, bringing in corporate and outside lawyers, public relations experts and other advisors to help design crises strategies. "It was even more unusual -- bordering on the heretical -- for a corporate lawyer to recommend waiving privileges as part of such a strategy," the authors say. "Yet in our [post-Enron] times, lawyers are advising corporations to do just that in a wide variety of circumstances."
 
The Key Is Not Just Doing It, But Doing It Right

The report emphasizes that independent investigations have both risks and benefits. "Once an organization chooses to conduct an independent investigation, it must do it right," the authors said.

In an independent probe, the lawyer acts as a fact-finder, not as an advocate. Instead of attempting to make the best case for a client in an adversary proceeding, the independent investigator seeks to become the sole arbiter of the facts, regardless of whether they support or undermine the client organization's legal claims or the interests of any individual. Before commissioning an independent investigation, an organization's leaders must decide whether they are prepared to take action against key individuals -- even top officers -- if the evidence warrants it and to present facts that could help the organization's adversaries prove claims. 

When Is an Independent Investigation Necessary?

Few companies would run these risks if independent investigations did not confer substantial benefits. In many situations, there may be no prudent alternative to conducting one. Courts are increasingly making independent fact-finding a legal obligation. Even when there is a choice, however, the independent investigation strategy may be the only practical way to resolve a crisis of confidence and demonstrate an organization's core values to its stakeholders, government agencies and the public. Properly conducted independent investigations also can boost morale within the organization by demonstrating that in a crisis people will be treated fairly and according to a rational process.

Types of situations in which an independent investigation might be considered include cases of sexual harassment, health and safety issues caused by equipment malfunctions, financial malfeasance and stock manipulation.

"What really determines if an inquiry has to be independent, however, is whether it is crucial for an organization to demonstrate to the public, government agencies, a court, or its own stakeholders that it acted appropriately," said Stier. "Once a decision has been made to use the independent investigation strategy, all organizational actions and statements should be consistent with it."    

The True Meaning of Independence

There is no current universally recognized definition of independence in the investigative context. Based on existing legal standards, the following are guidelines for independence:

• Relational independence: This test asks whether a prospective independent investigator has a problematic relationship that might compromise the substance or appearance of objectivity.
• Demonstrating independence through the investigative process: Even absent compromising relationships, skeptics will scrutinize the investigative process to determine whether it is genuinely independent and objective or advocacy in disguise. An investigation must define its purpose; establish appropriate relationships with both sides; use procedures fair to all; document evidence thoroughly; and demonstrate soundness of conclusions through a reproducible analysis.

"Choosing a strategy that includes an independent investigation must be done carefully, with a full appreciation of both its risks and benefits," said Stier. "How an organization responds to a crisis will define its values far more convincingly than any code of conduct. Doing it right, as Johnson & Johnson did with the Tylenol poisonings in the '80s, can turn a crisis into a net gain for the organization by reinforcing its reputation for integrity."