“The Role of External Counsel in Misconduct Investigations: Perspectives on Treating Corporations as a Client”: STRATEGIC COMPLIANCE INSIGHTS September 2026

The Role of External Counsel in Misconduct Investigations:
Perspectives on Treating Corporations as a Client

1.       Practical Perspectives on Corporate Investigations Involving Conflicting Interests

In recent years, growing attention to media reports and regulatory responses concerning corporate misconduct has led to increased discussion of internal and third-party investigations.

The importance of misconduct investigations is not, in itself, a recent development. Corporate misconduct has long existed, and corporations have always faced the need to determine whether misconduct has occurred, identify its causes, and consider what measures should be taken in response.

What appears to have changed in recent years is, rather, the level of accountability expected of corporations after misconduct is uncovered, the transparency of investigations, and the degree of internal and external scrutiny directed at the investigation process itself.

In practice, investigations into corporate misconduct are not necessarily conducted solely for the purpose of establishing the relevant facts. Multiple interests and organizational tensions may exist surrounding the alleged misconduct, in addition to the event itself. In particular, these include, matters involving officers or senior management, differences in perception between the headquarters and the Japanese subsidiary of a cross-border corporations, and dissatisfaction with management policies or organizational management existing in the background.  As a result, organizational conflicts of interest may surface during the course of an investigation, and the findings of the investigation may have significant implications in the decision making process.

However, even in such cases, an attorney involved in an external investigation should not advocate for the interests of particular members of management, whistleblower, or internal department, but rather recognize “the corporation itself” as the client and conducting the required investigation, analysis, and advice to enable the corporation to make appropriate decisions and continue its business operations.

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[Contents]

1.    Practical Perspectives on Corporate Investigations Involving Conflicting Interests

2.    What does “Treating the Corporation as the Client” Mean?

3.    The Significance of Distinguishing “Illegality” from “Business Judgment” in the Investigation Process

4.    The Role of External Investigations Amid Conflicts of Interest
5.    Conclusion
 

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Japanese: 「不正調査における外部弁護士の役割―法人を依頼者とするという視点」STRATEGIC COMPLIANCE INSIGHTS 2026年9月号

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