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Although the attorney-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, a recent federal court decision stands as a stark reminder that its application is not absolute. In United States ex rel. Barko v. Halliburton Company et al., the court ordered a Halliburton subsidiary to produce documents related to an internal investigation of an alleged Code of Business Conduct violation. The court found that these documents were not protected under the attorney-client privilege or the work product doctrine because the investigation was “a routine corporate . . . compliance investigation required by regulatory law and corporate policy” and the “investigations would have been conducted regardless of whether legal advice were sought.” To read a more in-depth analysis of the Halliburton opinion, click here or here.
The determination of whether the attorney-client privilege and work product doctrines apply in any given case is fact dependent and there is no one “magic bullet” or guaranteed safe haven. With that said, there are a number steps a company can take to maximize the likelihood that a court will deem an internal investigation protected from disclosure by the attorney-client privilege or attorney work product doctrine.
Tips & Templates for Companies to Preserve the Attorney-Client Privilege
Read more articles about managing workplace conflict at Win-Win HR, a blog by Lorene Schaefer.
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