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

Preserving Confidential Information, Safeguarding Work Product, Avoiding Inadvertent Disclosure

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, June 15, 2023

Recorded event now available

or call 1-800-926-7926

This CLE course will assist in-house and outside counsel in protecting the attorney-client privilege and attorney work-product when responding to a government investigation, inquiry, or audit.


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.



  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?


Hayes, Michael
Michael B. Hayes

Litigation Chair
Horn Williamson

Mr. Hayes has been practicing in Philadelphia for more than 20 years. Previously, he was a partner with Montgomery,...  |  Read More

McKay, Kenneth
Kenneth E. (Ken) McKay

Kean Miller

Mr. McKay is an attorney in the Houston office of Kean Miller. He joined the firm in 2023 and practices in the area of...  |  Read More

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