# Who should conduct the internal investigation Source: https://www.ouaknine-avocats.com/en/publications/qui-doit-mener-l-enquete-interne Who should be entrusted with the investigation? The answer turns not on organisational preference but on legal parameters, foremost among them the characterisation the alleged facts may attract, the position of the person concerned and the identity of those for whom the findings are intended. An internal team, a lawyer and an independent third party each carry distinct consequences for what later becomes of the documents produced. #### The internal team Drawn from human resources, internal audit, the legal department or the compliance function, the internal team is the fastest and least costly option. It may be suitable where the facts have no criminal dimension: breaches of internal rules, management disputes, departures from procedure. The difficulty is that this assessment is made at the point when least is known, on the strength of a report whose legal characterisation has yet to be established. Two limitations govern the assessment. The first concerns the independence of those carrying out the verifications: any reporting relationship between them and the person concerned is a factor the employment tribunal (conseil de prud’hommes) examines where the findings are relied on in support of a sanction. The second concerns confidentiality, and it is decisive. #### In-house counsel confidentiality is not the same as that of a lawyer French law long afforded no protection to advice drafted in-house. A first attempt, inserted into the justice programming statute, was struck down by the Conseil constitutionnel in November 2023 as unrelated to the subject matter of the bill. Law no. 2026-122 of 23 February 2026, upheld subject to interpretative reservations, created an article 58-1 in the Law of 31 December 1971 conferring confidentiality on legal advice drafted by in-house counsel, subject to five cumulative conditions relating in particular to the author’s qualifications and ethics training, the recipients of the document and the affixing of a specific marking. That confidentiality attaches to the document rather than to the person, and its entry into force depends on a decree adopted after consultation of the Conseil d’État. Two features limit its reach for present purposes. It is expressly unavailable in criminal and tax proceedings. And it is not professional secrecy within the meaning of article 226-13 of the French Criminal Code, unlike that of a lawyer. It follows that, where the facts under examination may attract criminal characterisation, a report produced by the legal department, its interim notes and the exchanges that led to it remain liable to seizure and may be placed on the case file. Work carried out by a lawyer falls within professional secrecy (secret professionnel) under article 66-5 of the Law of 31 December 1971, the protection of which on searches was strengthened by Law no. 2021-1729 of 22 December 2021. That protection is not absolute: article 56-1-2 of the French Code of Criminal Procedure, introduced by the same statute, sets aside the secrecy attaching to legal advice in respect of investigative measures concerning tax fraud, bribery, influence peddling, terrorist financing and the laundering of those offences. #### The lawyer Instructing a lawyer is governed by the nature of the risk. The question arises first where the facts may attract criminal characterisation or where the person concerned holds a corporate office. It arises equally where an authority is already seised or where the findings are intended to be placed before a prosecutor or a regulator. This is also the option least open to criticism where the findings are relied on in support of a sanction. The Social Chamber accepts that the employer may entrust the verifications to an external party, and it has held, in harassment litigation, that such an investigation is not an unfair mode of proof even where the employee concerned was neither informed of it nor interviewed. It has also held that the report may be produced to justify the misconduct alleged against a dismissed employee, and that it falls to the lower courts, provided no unlawful investigative measures were used, to assess its probative value in the light of the other evidence adduced by the parties. That is the ground on which the identity of the investigator tells. A report produced by an external lawyer, bound by professional rules of conduct and subordinate to no one within the company, escapes the objection most frequently raised against internal investigations before the employment tribunal, namely that the exercise was carried out by the subordinates, colleagues or superiors of those it implicated. The investigator’s independence does not condition the admissibility of the report, it carries its persuasive force, and the appearance of independence counts as much as the reality once the sanction is challenged. One question must be put before any instruction, that of conflicts of interest. A firm which advised on the transaction under investigation is in a position that professional conduct rules address, and whose consequences are not solely disciplinary: the demonstrative value of the report in the eyes of its recipient is affected. The assessment is a concrete one and requires knowing the extent of the earlier work. #### The independent third party The independent third party may be an audit firm, a forensic expert or a specialised investigator. Such a party is engaged for its technical capability, particularly in data analysis and digital forensics. It is engaged too for the external credibility of its findings, where these must persuade a minority shareholder, a regulator or a court, or else to absorb a volume of documents the company cannot process alone. That third party enjoys no professional secrecy capable of being asserted. Whether it acts under the direction of the lawyer or directly for the company is therefore not a question of organisation but one that governs what becomes of its work. #### Who establishes the facts and who decides what follows In most configurations, the person who establishes the facts and the person who imposes the sanction are two different people. No statute prescribes that separation, but it is looked at, both by the employment tribunal assessing how thorough the verifications were and by supervisory authorities. How it is implemented depends on the size of the organisation and on the positions of those involved. #### The role of the lawyer The choice of configuration is made before the first investigative step and determines what becomes of the file. It calls for an assessment of the criminal exposure, of whether proceedings are already under way, of the likely recipient of the findings and of each person’s position in relation to the facts. None of these parameters follows from a general rule. A lawyer conducts the investigation with the proceedings that may follow in view, which governs the questions asked, the order of interviews, the form of the records and what is committed to writing and what is not. A lawyer may also direct technical specialists so that their work falls within the scope of the engagement rather than being delivered straight to the company. A report already written can no longer be protected retrospectively, which is why the question arises at the point when the decision to open is taken. Previous episode: Opening an investigation, triggers and scope. Next episode: Precautionary suspension and interim measures. See also our internal investigations practice. This material sets out the general legal framework and does not constitute legal advice. ## Conducting an Internal Investigation - [Conducting an Internal Investigation - Episode 1: Opening an investigation, triggers and scope](https://www.ouaknine-avocats.com/en/publications/ouvrir-une-enquete-interne-declencheurs-perimetre) - [Conducting an Internal Investigation - Episode 2: Who should conduct the internal investigation](https://www.ouaknine-avocats.com/en/publications/qui-doit-mener-l-enquete-interne) ## Pages - [The Firm](https://www.ouaknine-avocats.com/en): home page: the practice in one sentence and its three main fields - [The firm and Alice Ouaknine](https://www.ouaknine-avocats.com/en/about): the firm, Alice Ouaknine's background, working languages - [Expertise](https://www.ouaknine-avocats.com/en/expertise): every field of practice - [Publications](https://www.ouaknine-avocats.com/en/publications): the firm’s own writing, including the police-custody survival guide, and the press articles that quote it - [Contact](https://www.ouaknine-avocats.com/en/contact): address, phone, mobile and email - [ISKA network](https://www.ouaknine-avocats.com/en/iska): the network of independent attorneys the firm belongs to - [Legal Terms](https://www.ouaknine-avocats.com/en/legal): legal notice and cookie policy --- Ouaknine Law Firm, 17 rue de Douai, 75009 Paris, France. +33 (0)1 84 16 20 35. cabinet@ouaknine-avocats.com https://www.ouaknine-avocats.com/en/llms.txt · https://www.ouaknine-avocats.com/sitemap.xml