Presented by: Sandra McLelland, Managing Counsel, Under ...webcasts.acc.com/...the_attorney-client_privilege_presentation.pdf · Sandra McLelland, Managing Counsel, Under Armour Suzzanne

Presented by: Sandra McLelland, Managing Counsel, Under Armour Suzzanne Decker, Principal, Miles & Stockbridge PC

Overview •  What are privileged communications? •  Important Considerations •  How to begin an internal investigation •  How the attorney-client privilege can be waived •  Best practices •  When to seek outside counsel •  International Jurisdictions •  Final Remarks

Privileged Communications

•  Attorney-client privilege generally applies to internal corporate

investigations, so long as at least one significant purpose of

the investigation is to obtain or provide legal advice—even if

an investigation is conducted pursuant to corporate policies or

regulatory obligations (i.e., for business purposes). See In re

Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir.

2014). This rule also applies even if the investigation is not

conducted by an attorney.

Privileged Communications •  What is protected?

–  Confidential communications between the company and its attorney(s) for the purpose of obtaining legal advice

•  Requests for legal advice from in-house or outside counsel

•  Disclosure of facts to in-house or outside counsel •  Requests by in-house or outside counsel to business

people for information needed to provide legal advice •  Legal advice provided by in-house or outside counsel

–  See Upjohn Co. v. U.S., 449 U.S. 383 (1981)

Privileged Communications

•  What is not protected? –  Communications between in-house counsel and non-

managerial employees –  Historical documents, facts, circumstances, and general

subject matter of a representation –  Business communications –  Communications of non-confidential information –  Non-lawyer created corporate documents

Important Considerations – Legal v. business purpose of investigation – Creation advice v. assertion advice – Technological advances

How to Begin an Internal Investigation •  Essential Steps:

–  Designate proper investigator –  Assess and define the scope of the investigation –  Identify the key players –  Collect and preserve necessary documents –  Conduct appropriate witness interviews

•  Checklists are a great way to simplify the process and efficiently train those employees conducting investigations

•  When the attorney-client privilege can be waived: •  When the investigation is disclosed by the employer to establish

a defense in legal proceedings depending on the extent to which it seeks to rely on the substance or findings of the investigation

•  When the investigator fails to clearly define and advise non-managerial employees of the attorney-client relationship prior to communicating with such employees about an internal investigation

•  Inadvertent dissemination or intentional disclosure of otherwise privileged information or documents to more people than only those who need to know or have such information

•  When there is any breach of confidentiality, whether intentional or inadvertent

Protecting the privilege internally

•  IRL Examples –  Cadwalader loses work

product claim –  Baylor University cedes right

to withhold information from an internal investigation of sexual assault charges conducted by outside counsel

Protecting the privilege internally

•  Best Practices •  Anticipate potential types of future investigations and

have a plan •  Develop specific team of for each type of investigation

•  Avoid direct involvement of in-house counsel in investigations •  Specific training for HR personnel conducting investigations

•  Train/educate all employees on critical concepts of privilege

•  Create and implement internal policies and procedures for document and data preservation/management

Protecting the privilege internally

•  Best Practices •  Minimize number of internal employees privy to

investigation •  Avoid being the ultimate decision-maker, or playing a

business role in termination decisions and remedial action •  Price v. Jarett, 2017 U.S. Dist. LEXIS 61066 (D. Neb. 2017)

•  Preserve confidentiality of emails and other written communications

Protecting the privilege internally

When to Involve Outside Counsel

•  When investigation is conducted solely for business purposes (i.e., to provide business advice)

•  For objectivity in conflict of interest situations •  When serious or potentially serious allegations are involved •  When investigator and/or in-house counsel lacking in specific or

relevant expertise as it relates to a certain matter critical to the investigation

•  Choice of Law Situations •  When in doubt

–  Ensures attorney-client communications remain privileged

International Jurisdictions •  Privilege can also be waived where

a certain state or international jurisdiction does not recognize the attorney-client privilege between a company and its in-house counsel

•  i.e., the attorney-client privilege does not extend to in-house counsel in much of Europe where it generally only extends to written communications from an “independent,” outside lawyer.

Final Remarks •  Key to draft engagement letter that clearly identifies

purpose and scope of retention and reason for seeking legal advice

•  Decision to involve outside counsel does not and should not end the participation of in-house counsel in the investigation matter