BarbriSFCourseDetails
  • videocam On-Demand
  • signal_cellular_alt Intermediate
  • card_travel Corporate Law
  • schedule 90 minutes

Protecting the Attorney-Client Privilege and the Attorney Work Product Doctrine in Investigations and Audits

Preserving Confidential Information, Safeguarding Work Product, Avoiding Inadvertent Disclosure

$297.00

This course is $0 with these passes:

CLE
ALL
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Description

Careful consideration and planning is required in order to protect the confidentiality of corporate information when providing documents to government investigators or independent auditors. Inadvertently submitting confidential communications and other records protected by the attorney-client privilege or the attorney work product doctrine can result in waiver.

Outside auditors, government agencies and departments, and potential business partners demand a wide variety of sensitive, confidential information from businesses.

Listen as our experienced panelists identify dangerous privilege pitfalls for the unwary and discuss how counsel can help companies maintain strong privilege and work product protection during investigations, in the course of outside audits, and in negotiating deals.

Presented By

Michael B. Hayes
Litigation Chair
Horn Williamson, LLC

Mr. Hayes has been practicing in Philadelphia for more than 20 years. Previously, he was a partner with Montgomery, McCracken, Walker & Rhoads LLP. There his practice focused on complex commercial litigation in Federal and Pennsylvania state courts, government investigations involving pharmaceutical and medical device manufacturers, internal investigations, electronic discovery, data privacy, and attorney ethics matters. He also served as the founding chair of the firm’s eDiscovery Group and as the chair of its Pro Bono Committee.

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Kenneth E. McKay
Principal
McKay Law Offices

Mr. McKay practices in the area of commercial litigation with particular focus on land use and eminent domain throughout the United States, as well as energy, construction, intellectual property, and telecommunications work. He represents clients in various industries, including pipeline owners and operators, telecommunications providers, utilities, and other common carriers, as well as select commercial and residential developers and landowners in condemnation cases, pre-condemnation counseling, and infrastructure permitting.

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Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.


  • Live Online


    On Demand

Date + Time

  • event

    Thursday, June 15, 2023

  • schedule

    1:00 p.m. ET./10:00 a.m. PT

  1. Who holds the privilege in internal investigations and audits
    1. Privilege considerations when interviewing employees
    2. Privilege within the corporation during the investigation
    3. Protecting communication among management
    4. Privilege protections for communications with former employees
    5. Audit committees and reporting to the board
    6. Third parties in investigations
    7. The Garner doctrine: access to investigatory materials by shareholders and other beneficiaries of fiduciary relationships
  2. Waiver
    1. Scope of waiver (including Rule 502)
    2. Types of waiver
    3. Disclosure of the investigative report
    4. Waiver to governmental agencies
  3. Disclosure to a company's auditors without waiving the company's privilege
    1. Auditor requests
    2. Risk of waiver
    3. The "treaty"
    4. Recommendations
  4. Best practices for preserving privilege
    1. Understanding the scope of the privilege in the relevant jurisdiction
    2. Active engagement of counsel from the outset of an investigation
    3. Structuring the investigation to take full advantage of the scope of attorney-client privilege in the relevant jurisdiction
    4. Documentation authorizing and describing the purpose of the investigation
    5. Clarification of in-house counsel's role
    6. Retention of outside counsel
    7. Documentation and labeling of confidential communications and documents
    8. Education/training
  5. Controlling privileged material to reduce the possibility of waiver
    1. Segregate facts from documents that contain attorney work product
    2. When facing a demand for privileged material, negotiate protection from future third-party discovery
  6. Limited waiver agreements
    1. Do not acquiesce when privilege rights are contested
    2. Joint defense agreements
    3. Control drafting of and access to investigation reports

The panel will review these and other key issues:

  • What systems should corporations and their counsel implement to identify and protect privileged communications and attorney work product in these situations?
  • How can a company maintain the confidentiality of sensitive information when conducting an internal investigation or during an audit or investigation by governmental agencies?
  • What are the key business and legal best practices for counsel and corporations to preserve the privilege?