Guest Column: Protecting attorney-client privilege during internal investigations

Attorney-client privilege and the work-product doctrine can protect the confidentiality of internal investigations

Suppose your company suspects an employee broke the law, perhaps even using company property to do so. The company decides to conduct an internal investigation. If your company is sued because of the employee’s conduct, communications and documents from the investigation could be uncovered during the lawsuit. Attorney-client privilege and the work-product doctrine can protect the confidentiality of these types of investigations. With simple practices, your company can get the best coverage from these tools.

Protecting Your Company with Attorney-Client Privilege

Attorney-client privilege protects certain communications between an attorney and a client. However, the privilege has limits that can leave important information unprotected. Below are some simple rules that can help close these gaps for companies.

First, only company representatives should communicate with the attorney. According to Alabama’s Rules of Evidence, company representatives include the company’s “control group,” such as high-level executives, and other employees closely involved with the issue being investigated. Therefore, discussions between the CEO or president and the company’s attorney about the conduct of the employee in question during the investigation will likely be protected by attorney-client privilege. The remaining group of representatives depends on the type of infraction. If the employee committed tax fraud, for example, members of the accounting department might be included.

Second, communications with the attorney must relate to legal issues or advice. For example, the company president could ask about the company’s legal exposure due to the employee’s activities. However, if the president asks for advice on communications strategies to improve the company’s image after the investigation, the privilege will not apply.

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Finally, while communications with the company attorney may be protected, the underlying facts that may be the subject of those communications are not protected. Simply speaking to the attorney about a situation or document does not make the situation or document itself privileged. No one could question the company president about what she and the attorney discussed about the employee’s activities, but the facts concerning what the employee allegedly did are not protected.

Making the Most of the Work-Product Doctrine

The work-product doctrine protects documents prepared for a potential lawsuit, especially if they contain the company attorney’s thoughts and opinions as Alabama’s Rules of Civil Procedure state. What is an example of work product? During the investigation of your company’s employee, the attorney might interview the employee and make notes about the legal risks to the company. These notes are a prime example of the type of document that would be protected by the work-product doctrine.

To get the most protection from the work-product doctrine, your company should clearly mark documents that contain the attorney’s thoughts and opinions. Keep a separate file for the internal investigation, and keep all documents from the investigation in that file. If the attorney reviews existing documents during the investigation, such as the employee’s personnel file or the company’s accounting records, make copies of the original documents. Keep the copies, along with the attorney’s notes, in the investigation file, and return the unmarked originals to the company files. Separating and clearly identifying investigation documents can help ensure that the investigative file remains confidential.

Tips for Preserving Protection

  • Make specific written requests for legal advice to the attorney – for instance, “What is the company’s legal exposure?”
  • If the company is heavily regulated, conduct two investigations with separate sets of documents – a regulatory investigation (which can be reported to a regulator) and a legal investigation (which can be kept confidential).
  • If the company interviews employees for the investigation, inform the employees that:
    • The investigation is confidential, and they should not discuss it or the interview with anyone.
    • They should inform the investigative team if someone asks about the interview.
    • The company attorney does not represent them, any attorney-client privilege belongs to the company and not to them, and they should ask their own attorney for legal advice.
  • Keep employee interview notes in the investigative file, not in personnel files.
  • Use investigative materials only for the investigation and not for business purposes.
  • Identify materials that are protected by attorney-client privilege and the work-product doctrine, including emails, as such.

Waiving Protection

Although attorney-client privilege and the work-product doctrine can help protect your company, the company may decide to waive protection for a number of reasons, including:

  • Restoring the company’s image.
  • Wanting to refer to the investigation results.
  • Using an advice of counsel defense.
  • Being required to do so by court order.
  • Seeking leniency in sentencing.
  • Applying lessons learned in the investigation to make changes or defend litigation.

By following these general practices, your company can make the most of the attorney-client privilege and work-product doctrine. However, every situation requires different practices. If these issues arise, be sure to contact the company attorney for specific advice.

Many of the ideas mentioned in this article are discussed in more detail in “The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality,” edited by Vince Walkowiak and Oscar Rey Rodriguez.

Peter Tepley.

Peter Tepley is a partner at RumbergerKirk, where he focuses his practice on commercial litigation. Julie Potts is an associate at the firm and focuses her practice on casualty and commercial litigation.

Julie Potts.

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