In any investigation with individual exposure, employees need independent advice, and the organisation’s handling of that question affects everything else.
When it arises. Where an employee may have personal criminal or regulatory exposure; where their interests may diverge from the company’s; where they are asked to give testimony; and where they are a target or subject.
Company counsel cannot represent both where interests conflict, and Upjohn warnings should have made clear from the first interview that company counsel represents the company.
Pool counsel for a group of similarly situated employees, funded by the company, is common and appropriate where their interests are aligned. It becomes a conflict when they are not.
Payment. Advancement and indemnification obligations under the governing documents, and directors and officers coverage. Refusing to pay where an obligation exists produces litigation and destroys cooperation.
Independence. Counsel funded by the company must represent the employee independently. Arrangements that condition payment on the employee’s cooperation with the company are improper.
Information flow. A joint defence agreement may permit sharing, until interests diverge.
What the company must not do. Instruct employees not to speak with authorities, or condition employment on their cooperation with the company’s position. Both are obstruction.