A company can have multiple purposes for conducting an investigation. Some are mandated by regulation, compliance programs or internal company policies (all considered business purposes) and others are undertaken solely for legal advice. Even when business and legal purposes are both in play, the ability to preserve attorney-client privilege is critical because the company usually cannot determine at the outset how an investigation will unfold or whether it should be disclosed.
A recent appellate opinion alleviates concern that privilege has been eroded for investigations where compliance, regulatory or other business purposes intersect with legal advice, In re Kellogg Brown & Root, Inc., (D.C. Circuit Court of Appeals, June 27, 2014). In doing so, the court recognized that business efforts are not conducted within silos distinct and mutually exclusive from counsel’s role to give legal advice.