Attorney-Client Privilege At Risk In Investigations And Audits
Businesses must protect the confidentiality of corporate information when providing documents to independent auditors or government investigators. Inadvertently submitting records protected by the attorney-client privilege can result in waiver of the privilege.
Several district court rulings indicate a trend towards increased limits on attorney-client and work product protection. This is true especially with regard to the selective waiver doctrine and communications involving a company and its consultants, board members and others.
Outside auditors, government agents and potential partners demand a wide variety of sensitive information from businesses. Our panelists will discuss how counsel can guide a company in protecting these privileges during an outside audit or investigation, when conducting an internal investigation, and in negotiating deals.
Listen as our authoritative panel of legal specialists examines the legal issues surrounding the attorney-client privilege in investigations and audits, including who has the privilege, how it can be inadvertently waived, and how to shield information. The panel will discuss their insights and best practices to preserve the privilege.
- Who has the privilege in internal investigations/audits
- Privilege considerations when interviewing employees
- Privilege within the corporation during the investigation
- Protecting communication among management
- Privilege and former employees
- Audit committees and reporting to the board
- Third parties in investigations
- The Garner doctrine—access to investigatory materials by shareholders and other beneficiaries of fiduciary relationships
- Scope of waiver (including Rule 502)
- Types of waiver
- Disclosure of investigative report
- Waiver to governmental agencies
- Disclosure to a company’s auditors without waiving the company’s privileges
- Auditor requests
- Risk of waiver
- The “treaty”
- Best practices for preserving the privilege
- Understanding scope of privilege in relevant jurisdiction
- Counsel engaged from outset of investigation
- Structure and design investigation to take full advantage of scope of attorney-client privilege in the relevant jurisdiction
- Documentation authorizing investigation and describing purpose to gather information to be used in advising company about potential liability and defense of potential lawsuits
- Clarification of in-house counsel’s role
- Retention of outside counsel
- Documentation and labeling of confidential communications and documents
- Cross border challenges
- Controlling privileged material to reduce possibility of waiver
- Segregate facts from documents that contain attorney work product
- When facing a demand for privileged material, negotiate protection from future third-party discovery
- Limited waiver agreements
- Do not acquiesce when privilege rights are contested
- Joint defense agreements
- Control drafting of and access to investigation report
The panel will review these and other key issues:
- What systems should corporations and their counsel implement to identify and protect privileged information?
- How can a company maintain the confidentiality of sensitive information when conducting an internal investigation—or during an audit or investigation by third-party investigators?
- What are the key business and legal best practices for counsel and corporations to preserve the privilege?
Stuart M. Altman, Partner
Hogan Lovells, Washington, D.C.
Mr. Altman focuses on white collar criminal investigations and defense, including representing clients in securities enforcement proceedings and conducting internal investigations, and corporate governance. He has extensive experience representing business entities and individuals in criminal investigations and prosecutions and conducts internal investigations for companies facing potential liability.
David M. Greenwald, Partner
Jenner & Block, Chicago
Mr. Greenwald is a tested trial lawyer with over 27 years of commercial litigation, domestic and international arbitration, and jury trial experience relating to a wide variety of substantive areas and across a broad spectrum of industries. He has also handled internal investigations domestically and throughout the world. He is co-author of the comprehensive treatise Testimonial Privileges (West 2012), and co-editor of the IBA treatise Privilege and Confidentiality: An International Handbook(2012). He is an active member of Working Group 1 of The Sedona Conference. He speaks and writes regularly on issues relating to the attorney-client privilege and work product doctrine under US law and their analogues in non-US jurisdictions, and on issues relating to e-discovery, ethics, and insurance and reinsurance.
Continuing Education Credits Available
This program has been approved for 2.0 CPE hours through Strafford Publications. CPE Credit is available only for the LIVE webcast. Recorded versions do not qualify for credit.
Strafford is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit.
To obtain CPE credit, attendees must participate in the live event, return an Official Record of Attendance to Strafford affirming their participation (including the CPE code announced during the program), and pay a processing fee of $35 per person.
Strafford will mail a certificate of credit within approximately 2 weeks of receiving an attendee's completed Official Record of Attendance—provided all required conditions have been satisfied.
Handout materials and the phone number for live presentations are made available to you 1 day prior to the event via email from the presenter. Copies of the presentations are included with recorded versions.
If you order a recorded version of the webinar, CD's will be mailed out approximately 10 days after the live event. Shipping is included in the price of recorded versions.
|Licenses / Designations / Educational Credits:||CPE|
All US States: 2
|About The Provider:
||Strafford Publications, Inc. is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be addressed to the National Registry of CPE Sponsors, 150 Fourth Avenue North, Suite 700, Nashville, TN, 37219-2417 or by visiting their website.
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|Attorney-Client Privilege At Risk In Investigations And Audits||CD/On-Demand||$306.45||
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