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Attorney Client Privilege and Internal Investigation Interviews

Maintaining confidentiality during internal investigations is complex. If a company plans to bring in outside council, they must carefully plan out the investigation in order to uphold attorney-client privilege.

Posted by Joe Gerard on May 14th, 2010

Maintaining confidentiality during internal investigations is complex. If a company plans to bring in outside council, they must carefully plan out the investigation in order to uphold attorney-client privilege. To reduce confusion during investigation interviews, companies need to ensure “Upjohn warnings” are worded properly.

In order to preserve attorney-client privilege, evidence collected during the investigation needs to be labeled confidential, interviews must be well documented, the names of those in attendance during interviews must be recorded and limit the number of people granted access to investigation information.

Pre-Interview Warnings

As stated by Doug Cornelius in his blog article “Attorney-Client Privilege and Internal Investigations,” a “conflict of interest could arise when an attorney or law firm simultaneously represents an organization and one or more of its officers or directors.” These conflicts have become a growing concern, resulting in a ruling requiring lawyers to tell employees they represent the company, not the individual.

In the blog post “Miranda Warnings for Lawyers? Recent Rulings Highlight the Possibility,” on WSJOnline:

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“Lawyers say it already is widespread practice to give some kind of notice in contacts with employees that the lawyer represents the company or its board of directors, not the employee. The Broadcom ruling is likely to make that warning even more precise. ‘We’re going to see the interview warnings turn into something akin to the Miranda warning the police give to suspects,’ said Steve Crimmins, a former SEC lawyer now at Mayer Brown.”

Upjohn and other similar warnings demonstrate best practices both in the US and internationally. To help protect the privacy of information related to the investigation, take this time to tell interviewees not to discuss the case with others. In the article “Supreme Internal Investigations: Important Lessons From Aguilar and Computer Associates,” they elaborate on the importance of Upjohn-style warnings at the beginning of investigation interviews. The article also emphasizes the importance placed on the wording of such warnings:

“In particular, it’s important to carefully consider the standard Upjohn warning given by company counsel at the commencement of an employee interview. The warning informs the employee that (a) counsel represents the company, not the employee; (b) the interview is covered by the attorney-client privilege; (c) the privilege belongs to the company; and (d) the privilege is therefore the company’s, and not the employee’s to waive. What is important, is that companies and their counsel realize the legal significance of the phrasing of warnings, and carefully consider the interests at stake in deciding how to approach this delicate issue.”

Legal Representation

Clarifying a lawyer’s representation helps avoid future lawsuits and accusations of unethical practices. In order to maintain fairness and conduct a bias free investigation, those who are interviewed need to know the facts before divulging information. In some states or countries, it’s required that lawyers receive written consent from both parties, should the lawyer represent both the employee and the corporation. Where there is potential for conflict of interest, written consent demonstrates each party’s acknowledgement of the lawyer’s representation.  If either group has an issue with being represented by the same lawyer, one party will have to seek a different legal counsel.

As discussed in the Ethisphere article “Traun’s Ten Commandments for Conducting Internal Investigations“:

“Ethical rules require counsel to make clear who they represent at the outset of interviews. While the warning may cause employees to refuse to talk (and to thus face discharge for refusing to meet and discuss company business), counsel must still give the Upjohn warning. If a company is cooperating with law enforcement authorities and there’s an agreement or expectation the company will share the substance of internal investigation interviews with them or the memoranda of interviews themselves, then counsel should advise employees that waiver of the privilege is likely, probable or near certain.”

When planning out the investigation, corporations should consider whether or not they plan on waiving the rights to attorney-client privilege, as they are the only ones with the authority to do so.

Joe Gerard
Joe Gerard

CEO, i-Sight

Spend my days showing off the i-Sight investigative case management software and finding ways to help clients improve their investigations. Usually working with corporate security, HR & employee relations, compliance and legal teams.

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