Partner and Senior Chair, Debevoise & Plimpton LLP; Former Chair, US Securities and Exchange Commission; Former US Attorney for the Southern District of New York
The sixth edition of GIR’s The Practitioner’s Guide to Global Investigations is emblematic of the important work GIR has now done for many years, making sure that the lawyers and others who practise in the field have the resources and information they need to stay current in a transforming world. Compared with white-collar practice when I began my career, the landscape today can seem dizzying in its ever-expanding complexity. The amount of data now available, and the variety of means of communication, are boundless. Pitfalls are everywhere, from new and sometimes conflicting rules on data privacy to varied and changing standards for the attorney–client privilege across the world, among many others. The talented editors and very knowledgeable authors of this treatise, many of whom I have had the pleasure of working with first-hand throughout the course of my careers in government and now again in private practice, have done us all a great service in producing this valuable and practical resource.
The Guide tracks the life cycle of a serious issue, from its discovery through investigation and resolution, and the many steps, considerations and decisions along the way – and, at each critical point, includes chapters from the perspective of experienced practitioners from both the United States and the United Kingdom, and at times other jurisdictions. The chapters provide invaluable advice for the most experienced practitioners and a useful orientation for lawyers who may be new to the subject matter and are full of practical considerations based on a wealth of experience among the authors, who represent many of the leading law firms around the world, including my own. Unlike many other treatises, the Guide also offers separate – and essential – perspectives from leading in-house lawyers and from outside consultants who are critical parts of the investigative team, including forensic accountants and public relations experts.
The comparative approach of this book is unique, and it is uniquely helpful. Having the US and UK chapters side by side in Volume I can deepen understanding for even veteran practitioners by highlighting the different (and sometimes significantly divergent) approaches to key issues, just as learning a foreign language deepens our understanding of a native tongue. These comparisons, as well as the primers for other regions around the world in Volume II, are an essential guidebook for fostering clear communications across international legal and cultural boundaries. Many a misunderstanding could be avoided by starting with this book when a new cross-border issue arises, and appreciating that we bring to each legal problem internalised frameworks that have become so familiar as to be invisible to us. The comparative approach of this treatise shines a light on those differences, and can prevent many missteps.
There are also very helpful situational comparisons, including chapters on interviewing witnesses when representing a corporation but also from the perspective of representing the individual. A lawyer on either side will benefit from reading the chapter on the other perspective.
The specific chapter topics in the Guide are a checklist for the many complexities of modern cross-border investigations, including considerations of self-reporting and co-operation, extraterritorial jurisdiction, remediation and dealing with monitorships. Significant attention is given to electronic data collection and strategies for using it to best advantage, and appropriately so. In almost any modern investigation, the amount of electronic data available to investigators will far exceed the resources that reasonably can be applied to reviewing it. Developing a well targeted but adaptive strategy for turning these mountains of data into actionable investigative information is absolutely critical, both to understanding the issue in a timely fashion and in delivering value to clients. The proliferation of stringent but diverse data privacy laws only adds to the complexity in this process, and the Guide is right to emphasise that understanding these issues early on is essential to the success of any cross-border investigation.
The Guide’s chapters on negotiating global settlements are spot-on. Despite professed global and domestic agreement against ‘piling on’, it remains a rarity to have only a single enforcement authority or regulator involved in a significant case. And although it is now accepted wisdom – and in my experience, the reality – that authorities across the globe are coordinating more than ever, this coordination does not mean the end of competition among them. As we frequently see in the United States, competition – even among authorities and regulators in the same jurisdiction – is still the frustrating norm. All of this amplifies both the risks that significant issues can bring, and the challenge for counsel to understand the competing perspectives that are at play.
The jurisdictional surveys in the second volume are also a tremendous resource when we confront a problem in an unfamiliar locale. These are necessarily high-level, but they can help identify the important questions that need to be asked at an early stage. As any good investigator can attest, knowing the right questions to ask is often more than half the battle.
This sixth edition arrives just as many of us are looking forward to returning to the office and to travel, meeting more people and investigations face to face. As predicted in the previous volume, the strain and disruption of the pandemic has only increased the number of serious issues requiring inquiry across the globe. The Guide will be a tremendous benefit to the practitioners who take them on – particularly for those who consult it early and often.