The Monaco Memo and Implications for Navigating Ethical Issues in Antitrust Investigations
Compliance Elliance Journal
In October 2021 and September 2022, Deputy Attorney General (DAG) Lisa Monaco issued remarks and a memorandum (the Monaco Memo) revising the U.S. Department of Justice's (DOJ) existing Corporate Enforcement Policy, which sets forth a package of carrots and sticks to incentivize companies to voluntarily self-report corporate misconduct to the government. In this article, Litigation Member Lauren Briggerman and Senior Associate Surur Fatema Yonce discuss critical ethical issues for internal investigations into anti-trust violations in light of the Monaco Memo and provide suggestions for outside counsel in managing potential legal, ethical, and practical challenges. In particular, the authors focus on how to navigate investigations that may implicate wrongdoing by the general counsel or members of a company's board of directors to whom outside counsel reports. In these circumstances, clearly identifying and zealously representing the interests of the client entity (whether a company or a board) while effectively managing ethical issues raised by employees and board members is key to maintaining the integrity of the investigation. Briggerman and Yonce conclude that DOJ's emphasis on self-disclosure, cooperation, and holding individuals accountable for corporate wrongdoing adds a layer of complexity to the actions of outside counsel navigating representation of companies and boards in internal investigations. Foresight and planning for these potential ethical issues can help counsel react quickly and seamlessly to complicating factors as they arise during an internal investigation, notably the uncovering of evidence that could implicate a company's general counsel or board of directors in the alleged wrongdoing.