The missing funds interviewLa entrevista por los fondos faltantes

Facts

You are general counsel of a Dallas logistics company. On Monday the CFO tells you that $180,000 is missing from a regional account and that the branch manager, Teresa, “probably moved it.” The CFO wants you to interview Teresa this afternoon, “as a friend, so she opens up,” and to email him a summary “for the board.” The company has no written investigation policy.

Call of the question

In no more than 250 words, write the email you would send the CFO before the interview, bottom line up front: what you will and will not do, how you will open the interview, what will be privileged, and what else must happen today.

Model answer

Bottom line: I will interview Teresa today, but as the company’s lawyer, not as her friend, and I will not send a summary to the board until we agree on scope. Here is why and what happens first.

The company is my client (Model Rule 1.13), not you and not Teresa. If I let her believe I represent her, anything she tells me may be unusable and I may be disqualified. I will open with an Upjohn warning in plain words: I represent the company; this conversation is privileged, but the privilege belongs to the company, which may share what she says with regulators or law enforcement; she may want her own lawyer.

What is protected: my communications with employees for the purpose of giving the company legal advice, and my notes and analysis prepared because litigation is likely (work product). What is not protected: the underlying facts, the bank records, and any business advice mixed into my memo. For that reason my report will go to you and the audit committee chair as a legal assessment, in one document, marked privileged, and I will not copy the whole board by email.

Before 3 p.m. I will issue a litigation hold to accounting, IT and the branch: no deletion of emails, messages or ledger entries. If the facts point to a crime or to anyone in finance, I will recommend outside counsel to run the investigation, so that its independence cannot be attacked later.

Risks: tipping Teresa before records are preserved; an interview that looks like entrapment; a board summary that waives privilege. Each is avoidable if we do the steps in this order.

Common mistakes

• Agreeing to interview “as a friend”; the warning exists precisely to prevent that.
• Promising the employee confidentiality the company does not control.
• Emailing the whole board a narrative summary, which risks waiver.
• Interviewing before preserving the records.