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Conducting Internal Investigations--What to Do and Not Do

October 2000

Citation: ELR 10901

Author: Raymond C. Marshall

The investigation and prosecution of environmental crimes has steadily increased over the past decade.1 Regulatory agencies responsible for overseeing compliance with environmental statutes have become aggressive prosecutors of environmental crimes. This change in posture, first witnessed in the early 1980s, has been contagious and is today evident at all levels of the law enforcement community. For example, in recent years, legislatures have enacted new environmental statutes and strengthened existing ones. Likewise, prosecutors have raised the stakes by exercising their discretion to investigate cases criminally rather than civilly, to charge matters as felonies rather than as misdemeanors, and to prosecute individual managers and employees rather than corporations alone. The same is true for the courts. At the federal level, courts are bound by the punitive provisions of the federal sentencing guidelines, and, for their part, state courts have demonstrated a new willingness to levy higher fines and penalties and to impose stiffer jail terms for environmental violations.

In light of these developments, it is critical that companies identify and respond effectively to even the earliest indications that they or their employees may have violated environmental statutes or regulations. Among other things, this requires that the company learn the underlying facts, identify knowledgeable employees, obtain relevant documents, understand procedures and techniques for interviewing employees, recognize the potential for conflicts of interest, and be alert to preserving the attorney-client and work product privileges. In short, companies must learn how to conduct a proper investigation. What to do and not to do in this regard is discussed below.

This Dialogue is derived from material presented by Raymond C. Marshall at the 28th Annual ALI-ABA Environmental Law Conference, sponsored by ALI-ABA and the Environmental Law Institute, held in Washington, D.C., on February 12-14, 1998.

Mr. Marshall is a partner in the San Francisco office of McCutchen, Doyle, Brown & Enerson, LLP. He has a strong background in civil and criminal environmental litigation in both federal and state courts. His work in environmental law includes representation of clients to recover costs by private parties under Superfund, cost allocation disputes with insurance carriers, and the defense of corporate and individual clients charged with violations of local, state, and federal environmental laws as well as indictments before the grand jury at both the state and federal level. A graduate of the College of Idaho and Harvard Law School, Mr. Marshall is a past president of the Bar Association of San Francisco and the State Bar of California. Recently, he was named Lawyer of the Year by the California Association of Black Lawyers. In addition to the many professional organizations he works on, Mr. Marshall is extremely active in community affairs and serves on the boards of the American Red Cross, the Alta Bates Hospital Foundation, and the United Negro College Fund.

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