Attorney–Client Privilege at Risk in Investigations and Audits

Businesses must maintain the confidentiality of certain corporate information—even from independent auditors or government investigators who seek sensitive records or information. Simply handing over information protected by the attorney–client privilege can constitute waiver of the privilege.

For example, a Delaware state court recently ruled that communication between a special committee of independent board members (set up to investigate shareholder claims) and its counsel were not privileged when the committee reported its investigation results to the full board.

Outside auditors, government investigators, and potential acquirers seek sensitive information from a business. How can a company cooperate with an audit or government investigation, conduct an internal investigation, and conduct deals without waiving the attorney–client privilege?

Listen as our authoritative panel of litigation specialists examines the attorney–client privilege in investigations and audits, including who has the privilege and how can the privilege be waived. The panel will discuss best practices to preserve the privilege.

The panel included:

David M. Greenwald, Partner, Jenner & Block, Chicago. He is a member of the firm’s Litigation Department and White Collar Criminal Defense and Counseling Group. He represents clients in complex litigation, including internal investigations.

Thomas F. O'Neil III, Partner, DLA Piper, New York. He co-chairs the firm's Government Controversies group and is the former Senior Vice President and General Counsel of the MCI Group. He assists clients in developing corporate compliance programs. He advises clients subject to congressional oversight, regulatory enforcement or criminal investigation. He conducts internal corporate inquiries on behalf of management and boards of directors.

Stuart M. Altman, Partner, Hogan & Hartson, Washington, D.C. He focuses on white-collar criminal investigations and defense. He conducts internal investigations for companies facing potential criminal and civil liability and advises on minimizing liability. He is experienced in litigation relating to corporate governance, including representing targets, acquirers, and financial institutions in takeovers and representing clients in shareholder disputes.

The panel reviewed these and other key questions:

• How can a business set up a system for identifying privileged information?
• How can a company conduct an internal investigation/audit with third party investigators or auditors and maintain the confidentiality of sensitive information?
• What are best business and legal practices for preserving the attorney–client privilege?

Following the speaker presentations, you’ll have an opportunity to get answers to your specific questions during the interactive Q&A.

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