"You just wonder what the heck were they thinking," says Mr. McNeil, a partner at Haynes and Boone, LLP, who helped prepare the ABA handbook, Internal Corporate Investigations. "This is a case of sheer boneheadedness."
For starters, H-P failed to immediately turn over the investigation to outside independent counsel, he says. Then, by hiring an investigative team directly, Mr. McNeil says, H-P compromised its ability to keep the investigation details safely protected under attorney-client privilege.
A better solution would have been to have investigators report directly to outside counsel who could screen the results before presentation to company executives.
And lawyers who specialize in corporate internal probes typically rely on the most experienced investigators -- those who are least likely to get the company dragged into the kind of cloak-and-dagger scheme that apparently occurred with H-P.
"The investigative groups we work with want a tight rein," says Mr. McNeil. "You don't want a bunch of cowboys out there."
Mr. McNeil made his comments Thursday as a hearing by the House Energy and Commerce Committee was convened to explore the tactics used by H-P executives and investigators involved in the leak probe. As the hearing opened, the company announced the resignation of general counsel Ann Baskins, who invoked her Fifth Amendment right against self-incrimination. The Baskins departure follows those of board chairman Patricia Dunn, two other directors and two high-level employees.
"Clearly, the investigation was out of control and the senior executives were oblivious to it," says Mr. McNeil. "Trickery becomes deceit, and deceit becomes fraud, and fraud becomes a federal offense if you're not careful."
Mr. McNeil is available to comment on the correct procedures for conducting internal corporate investigations by contacting Doug Bedell at 214-651-5815 or writing doug.bedell@haynesboone.com .
Haynes and Boone, LLP is an international corporate law firm with offices in Texas, Washington, D.C., Mexico City, Moscow and New York, providing a full spectrum of legal services.
