UK Law and Practice Contributed by: Ben Morgan, Ali Sallaway, Matthew Bruce and Emily Knight, Freshfields
3.4 Crisis Management Team See 3.2 Internal Governance and 3.3 Crisis Committees: Composition and Attributes . Crisis teams can be created to have more first- hand involvement in crisis management beneath the governance structure of a crisis committee. Internal stakeholders that form part of a cri- sis management team can include board and leadership teams, IT and cybersecurity, legal, forensics, investor relations, insurance, public relations, and counterparty relationship holders. Organisations may also seek to include external advisers such as legal advisers, forensic experts and other specialists, depending on the nature of the crisis. It is vital that the team comprises some mem- bers of senior management. They should assess plans for identifying and preventing a crisis (and record such discussions) and implement any necessary changes to systems and controls in advance of a crisis. Senior personnel should also: • communicate and endorse the organisation’s crisis prevention stance; • implement clear governance structures for crisis response; • commit to training and adequate resourcing; and • foster an open culture that encourages staff to identify and prepare effectively for crisis situations. 3.5 External Advisory Best practice supports the use of external advis- ers to prepare for and respond to a crisis where the scale and potential impact of the situation so warrants. When assessing appropriate advisers to consult, organisations should consider sev- eral factors, including:
• whether the adviser has adequate expertise and experience of the subject matter of the issue that has arisen and of any relevant regulators or prosecutors; • the scope and nature of the adviser’s engage- ment; • the capacity of the team that the adviser can field to keep up with the demands of the crisis; • who in the company will be the adviser’s pri- mary contact and provide oversight; • what information the adviser may need; and • whether there are any confidentiality and privilege concerns. Privilege is especially challenging to tackle, and merits the support of expert legal advisers. The pressure of a crisis can frequently lead to less attention being given in the moment to manag- ing privilege, with the loss of the important con- fidentiality rights as a result. The preparation and ready application of strict protocols for manag- ing privileged communications and documents should be part of crisis management plans, to help reduce risks in this area. 3.6 Assessing Crisis Management Success Organisations should not assume that the absence of a crisis illustrates the effectiveness of procedures. Best practice merits vigorously assessing whether pre-existing procedures are adequate and drawing on learnings from internal incidents, whistle-blower reports and incidents within the same sector, as well as wider societal and geopolitical developments. Crisis simulation exercises can be used to assess the robustness of procedures. When a crisis does occur, it is vital that organisations conduct a review into the causes and handling of the incident to learn how to improve existing plans and procedures.
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