Corporations have been under increasing pressure to waive attorney client and work-product protections in the context of criminal investigations. Although the practice of turning over the results of internal investigations to the government in the hope of avoiding prosecution or penalties is not new, the pressures have increased. In determining whether an organization itself should be charged with a crime, its cooperation, including its willingness to waive privileges, is a factor in the charging decision. This approach was formally recognized in a memorandum issued in 1999 by then-Deputy Attorney General Eric H. Holder and reaffirmed and expanded four years later. In 2004, waiver of privileges was also recognized in the Federal Organizational Sentencing Guidelines as a factor supporting a finding that a corporation had cooperated with the government to qualify for a reduction of sentence.
Investigations have become a booming business for corporate law firms, but lawyers in these practices no longer conduct internal investigations with the expectation that they will fall within the protections of the attorney client privilege and work-product immunity. To the contrary,many companies are hiring attorneys to oversee investigations in contemplation of handing over details to the government. In effect, a new type of investigation practice has emerged.
General Counsel or a Law Firm Clients
Our clients have two options for structuring our relationship. A law consultant can be hired by general counsel or a law firm to conduct an investigation to assist in the formulation of legal advice. In this scenario, the results of the consultant’s investigation is covered by the attorney-client privilege and work-product doctrine under long-standing doctrine that extends the privilege to agents of counsel. Conversely, he is subject to the same duties of confidentiality and avoidance of conflicts as other agents of the attorney.
Alternatively, a law consultant can be hired directly by a company to conduct an investigation to provide business advice or testify as an expert witness. In this second scenario, the communications with the law consultant would not be considered privileged. The loss of this protection, however, would be outweighed by the advantages to the corporate client and law consultant of avoiding an attorney-client relationship. The growing irrelevance of privilege in this area, coupled with the benefits of escaping the attorney-client relationship, has made it possible for risk consulting firms to compete—as well as cooperate—with traditional law firms to provide investigative services.