When To Conduct An External Counsel Investigation

• Published date: 14 February 2024
• Law Firm: Kromann Reumert
• Author: Mr Jens Lund Mosbek and Marianne Granh'j

In case of suspicion of serious irregularities in an organisation, it may be necessary to arrange a thorough investigation by external lawyers.

Many investigations regarding possible irregularities, including serious offences, can be carried out internally or in collaboration between a client and lawyer. In more serious cases, however, the entire investigation may need to be handled by an external lawyer. This may often be the case if internal control functions or a senior management have (or ought to have had) a role in the incidents to be investigated, or if there is a close relationship between the person(s) under investigation and that part of the organisation that would normally conduct the relevant investigation. Similarly, in problem cases that are publicly known, there may be a need to place the investigation outside of the investigated organisation and at the same time inform the public that the investigation will proceed under external auspices.

Ordinary and independent external counsel investigations

An external counsel investigation needs to be performed in compliance with the Code of Conduct for the Danish Bar and Law Society. This means, among other things, that the conflict of interest rules of the Code of Conduct must be complied with and that a lawyer may not undertake an investigation in violation of those rules.

Sometimes there may be a need to ensure, and signal to the public, the existence of an "arm's length" distance between the organisation requesting the investigation and the lawyer conducting the...