Breaking down silos: Business or legal? Attorney-client privilege in mandatory investigations

A recent appellate opinion alleviates concern that privilege has been eroded for investigations where compliance, regulatory or other business purposes intersect with legal advice.

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. 

Contributing Author

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Beth Fancsali

Beth Fancsali is a partner in the Litigation Department of Edwards Wildman. She counsels and defends corporations in complex investigation and litigation matters covering antitrust,...

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Contributing Author

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Heather Harrison

Heather Harrison is an associate in the Litigation Department of Edwards Wildman. 

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