Under the right circumstances, conducting an effective corporate internal investigation protected by the attorney- client privilege can benefit the company in a number of ways: • Revealing all of the relevant facts so that management and/or the board can make a fully informed decision as to how best to proceed; • Stopping the conduct to prevent further violations; • Memorializing the company’s good-faith response to the facts as they become known; • Insulating management and/or the board against allega- tions of complicity; and • Promoting a culture of transparency and compliance throughout the organization.
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The Attorney-Client Privilege And Workplace Investigations. March 2014 by William E. Hannum III, Brian D. Carlson. A recent court decision vividly illustrates why employers should give careful consideration to the attorney-client privilege before conducting an investigation in the workplace – to avoid unexpectedly having to disclose ...
Investigations . While attorney-client privilege can protect many internal documents, recent court decisions highlight the need to explicitly invoke this protection. As many US policies now require an increased level of internal investigations and self-reporting, companies should ensure their communications and documentation explicitly preserve their right to invoke the attorney-client …
Nov 21, 2017 · by Michael Volkov · November 20, 2017. I like to repeat myself – attorneys are valuable for only two reasons: (1) attorney-client privilege; and (2) advice of counsel defense. I know I am not supposed to denigrate my profession but these are two important reasons, especially the attorney-client privilege. In the context of corporate internal investigations, the …
What are some possible benefits of conducting an investigation under the attorney client privilege? Attorney-client privilege allows a client to seek and receive legal advice from an attorney in confidence. The client can provide opinions about the fraud and provides personnel information and backgrounds that are otherwise confidential.
In general, the attorney-client privilege shields from disclosure those communications in which an attorney and client communicate confidentially for the purpose of seeking or providing legal advice.
The appellate court held that the investigation report was protected by attorney-client privilege and the work product doctrine because it was prepared under an attorney-client relationship. ... The rendering of legal advice is not required for the privilege to apply."Jul 14, 2016
It prevents a lawyer from being compelled to testify against his/her client. The purpose underlying this privilege is to ensure that clients receive accurate and competent legal advice by encouraging full disclosure to their lawyer without fear that the information will be revealed to others.
A California Court of Appeals held earlier this month that incident reports are protected by the attorney-client privilege when certain criteria are met. ... The court reasoned that the existence of the privilege depends more upon the intended and actual use of the document than its contents.
B. United States, the United States Supreme Court upheld the attorney- client privilege in the context of attorney investigations performed by an in-house counsel, including as to factual information obtained by employee of the Company.Nov 12, 2020
Subpoenas aside, a private investigator has a duty to keep your information and investigation strictly confidential. ... An example of Federal case law on the extension of the attorney client privilege to a non-attorney as used by private investigators to protect their work product may also be enlightening.
Legal advice privilege protects communications between a lawyer and client made in connection with the giving or receiving of legal advice. This includes communications that form part of a continuum which aims to keep a lawyer and client informed so that legal advice may be given as required.
No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.
The attorney-client privilege is important because it allows for honest discussion between a client and his or her attorney. Privileged communications are typically not discoverable in litigation and generally cannot be used against the client (as long as the privilege has not been waived).Jan 15, 2019
Court confirms that employee interview notes are not protected by legal advice privilege. As a corporation can only act through its employees, it is often assumed that all employees' communications with the corporation's lawyers will be privileged. In 2003, the Court of Appeal held that this is not necessarily the case ...Dec 21, 2016
A recent federal court decision provides a timely reminder for public companies to be attentive to attorney-client privilege when preparing SEC filings.Jan 14, 2009
An attorney cautions company employees with an Upjohn warning when the company is involved in litigation or conducting an internal investigation. ... The company may choose to waive the privilege and disclose what the employee informs the attorney to a government agency or any other third party.
An Upjohn warning must be given at the outset of all interviews. Inform all interviewees that the purpose of the interview is to assist the company in obtaining legal advice. Interview notes should contain only statements of facts learned in the interview and not attorney analysis or thoughts.
Counsel alone should conduct interviews where possible. If not possible, then make privilege more likely by having counsel direct the interviews, review the interview notes and summarize, and provide interview outline or topics for questioning. See In re Kellogg Brown & Root, Inc., “agents of attorneys in internal investigations are routinely protected by the attorney-client privilege.”
In-house counsel frequently perform both a business and a legal function for the company. But, only in-house counsel’s communications in their legal role can be privileged. An in-house counsel’s communications relating to his or her business function are not privileged simply because the in-house counsel is an attorney.
A clear understanding of the scope of the attorney-client privilege in the corporate context is integral to the design of a successful internal investigation. The privilege is based on the principle that sound legal advice or advocacy depends upon full and frank communication between attorneys and their clients. To encourage the client to disclose all pertinent information to the attorney, the client must be assured that the information revealed will not be disclosed without the client's consent.#N#Application of the privilege to the communications of individual clients is relatively straightforward. However, its application to the corporate client is significantly more difficult. Corporations are artificial entities created by law that can only speak or hear through their agents. Corporations require extensive internal communications among their agents and employees to function effectively. Such communications may extend beyond management-level employees to lower-level employees. Moreover, because corporate agents have varied roles, they cannot only make statements on behalf of the corporation, but also in their capacity as individuals. As a result, significant uncertainty about the applicability of the privilege can arise when a corporation seeks to invoke the privilege in a particular circumstance.#N#Upjohn Co. v. United States
Counsel can further demonstrate that the contents of an internal investigation were intended to be confidential by 1) restricting dissemination of uncovered information to a limited number of individuals, 2) delivering reports from non-lawyers directly to counsel, rather than via intermediaries and 3) maintaining materials gathered as a part of the internal investigation separately from general corporate files.
Counsel should begin all employee interviews by explaining that the interview is being conducted to provide legal advice to the employer corporation and that the employee may not discuss the interview with anyone. Counsel should also ensure that the employee understands that counsel represents the employer corporation and not the employee, so that any privilege belongs to the corporation and not the individual employee.
Although waiver may be in the best interest of a corporation and help it avoid prosecution, the Thompson Memo explicitly states that a corporation's cooperation provides no such guarantee. Following waiver, plaintiff's counsel will put the internal investigation on trial, subjecting it to an unrealistic degree of scrutiny. In an adversary system, the corporation has every right to make the plaintiff do his own work and meet the burden of proof on the relevant issues. Thus, before turning over the investigative report, defense counsel must ensure that revealing the contents of the investigation will meaningfully exonerate the corporation. If it will not, it may be more sensible to preserve the privilege and make the plaintiff prove a case without the assistance provided by the company's own investigation.#N#Conclusion
Understanding the boundaries of legal privilege prior to commencing an internal investigation can save a company countless headaches. Grasping these issues prior to an unexpected incident or problem is critical to avoid the company’s investigation from making the situation worse.
The purpose (s) of the internal investigation is the most critical factor in determining the applicability of legal privilege. Under US law, for the attorney-client privilege to apply, the company generally must perform the investigation for the purpose of obtaining legal advice.
In the United States, attorney work product protection will not apply to materials created in the ordinary course of business that would be created irrespective of the threat of litigation. The materials must be created in anticipation of litigation to be protected. In Cicel, the court concluded the emails and memoranda derived from the company’s internal investigation were prepared in anticipation of litigation and thus were protected work product. Cicel, 331 F.R.D. at 232. The court, relying on the detailed affidavit provided by the company’s outside counsel that conducted the investigation, concluded that the interviews conducted by the investigation team “were plainly shaped by the specter of litigation.” Id. (quoting General Motors LLC Ignition Switch Litig., 80 F. Supp. 3d 521, 532 (S.D.N.Y. 2015)).
However, when company lawyers conducting an internal investigation direct and rely on non-lawyers for purposes of providing legal advice to the company, the attorney-client privilege is not waived simply by virtue of the non-lawyer’s involvement.