Internal Investigations and Attorney-Client Privilege: 3 Tips
The need for attorney-client privilege for in-house attorneys performing internal investigations is obvious: In order to investigate to the best of your ability, and to ensure that employees are as forthcoming as possible, investigations done for the purpose of legal advice need to be covered by privilege.
So how do you keep your privilege and assure that your internal investigation doesn't turn into evidence in a trial? Here are three tips you may want to consider:
1. Investigate 'to Provide Legal Advice.'
The key here is that the investigation must have a primary purpose of providing legal advice. A recent case out of the D.C. Circuit, United States ex rel. Barko v. Halliburton, highlights this point: Privilege applies even if "the investigation was mandated by regulation rather than simply an exercise of company discretion," and even if providing legal advice was only a primary purpose of the investigation, rather than the only purpose, notes JD Supra.
While the court noted that there are no "magic words" required by Upjohn Co. v. United States, the Supreme Court's landmark case governing privilege for in-house attorneys, it certainly can't hurt to emphasize that the investigation is for legal matters, even if business factors in as well.
2. Bring in Outside Counsel.
Again, the D.C. Circuit opinion reiterated that outside counsel is not a prerequisite to privilege.
But, that doesn't mean that it is a bad idea, especially for more severe matters. Outside counsel is especially helpful when investigating cybersecurity threats and data breaches -- routing investigations through outside counsel, especially investigations done by cybersecurity experts, makes a finding of privilege more likely.
3. Keep It Quiet.
While the D.C.Circuit noted that privilege even applies to nonlawyers acting on your in-house counselor's behalf, you still need to keep it confined to as few people, and more importantly, as few electronic records (stop emailing things!) as possible.
Bottom line: Even with all the precautions in the world, and even with a "legal advice" purpose, the line between privilege and non-privileged is constantly moving. This opinion, after all, is from the D.C. Circuit -- a tiny dot on the 50-state map. The fewer people in the loop, and the less paper and electronic correspondence, the better.
- Whistleblowers and Dodd-Frank: Compliance and Internal Strategy (FindLaw's In House)
- When Feds Require Internal Investigations, Lawyers Make Big Money (FindLaw's In House)
- Attorney Client Privilege: Apply to Law Firms' In-House Counsel? (FindLaw's In House)