Six Questions Everyone Should Ask About Legal Privileges

It is a scenario that happens all too often within global businesses: upon hearing of potential misconduct or a possible legal dispute, personnel in one jurisdiction produce an internal report that they expect will be kept confidential, only to find later that the report must be disclosed in another jurisdiction. In many cases those investigation documents contain preliminary conclusions or reflect incomplete understandings of the facts and law. As a result, their disclosure can unfairly prejudice the interests of a business.

The problem with this scenario is not that the business made an investigation – it is important to understand the facts and the law surrounding a situation when formulating a response. The problem is that personnel within a global business failed to think globally about how information might be disclosed. As the recent decision by the UK High Court regarding the legal professional privilege demonstrates, the law in this area is constantly evolving and important differences between jurisdictions can emerge unexpectedly.

Because both lawyers and non-lawyers may be responsible for leading investigations, depending on the jurisdiction, it is important that all personnel within a global business have at least some familiarity with the concept of legal “privileges” and understand the extent to which privileges can protect their work.

Speaking generally, a “privilege” protects information from disclosure in an adversarial proceeding. In the US, for example, communications between a lawyer and a client, made in confidence for the purposes of giving or receiving legal advice, are generally protected from disclosure in civil, criminal, and regulatory proceedings. The law of privileges varies by jurisdiction, however, and some jurisdictions do not recognize privileges at all.

When starting an investigation, it is important for both lawyers and non-lawyers to consider (at least) these six questions:

1. What is the purpose of this investigation?
2. Who might be interested in the results (e.g., litigants, regulators, prosecutors) and where are they located?
3. What kind of privilege protection may be available in the relevant jurisdictions (e.g., where involved personnel are located, where the events took place, where the interested parties are located)?
4. How should the investigation be managed to take advantage of available privileges?
5. What is the most appropriate way to gather facts and communicate in light of the available privileges?
6. Who is responsible for making decisions regarding withholding or disclosing privileged information as the investigation goes forward?

Given the complexity of the law governing privileges, it is unrealistic to expect all personnel to be able to answer all six questions on their own. However, by asking these questions at the beginning of each investigation – whether formal or informal – personnel will be better able to identify when and where to seek additional guidance and how best to structure their investigations so that the legitimate interests of the business are protected.