I have a question for the lawyers that will probably betray a lot of ignorance, but here it goes… when it comes to privilege, what is the line between attorneys and employees of the attorney (or people hired out by the attorneys). Specifically, investigators. I assume that an investigator working under the employ of an attorney cannot be called to testify against the client. I assume that this is the case whether the investigator is a full-time employee of the attorney or just hired for a specific job. Are these assumptions correct?
But let’s say that a business is up to something illegal and wants to know if an employee has figured it out. What is to stop him from hiring an attorney to hire an investigator to keep tabs on the employee? If I recall, attorneys cannot actively assist in illegal activity, but what happens if the investigator, while following the employee around, discovers it? I assume if the business hired the investigator independently, he could be called on to testify. But would hiring him through a lawyer (an outside lawyer, in this case) be a way around that?
I’m thinking that there’s something I’m missing here, but I just can’t figure what.
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The attorney-client privilege protects communications between an attorney and a client. When the client is an individual figuring out who those people are is easy. When the client is a corporation, the “client” can be anyone with management (not supervisory) authority. Management authority means the ability to create or modify company policies.
There is also the attorney work product doctrine. Information, theories, research, and yes investigation done at the attorney’s direction is proprietary to the attorney and protected from disclosure.
The big exception to both of these shields against disclosure is called the “crime-fraud” exception. An attorney cannot assist in the commission of a crime or the perpetration of a fraud. If the attorney’s services were engage to facilitate the commission of a crime then the privilege is busted and the attorney’s files and everything gathered in them is open to review by law enforcement authorities (and civil adversaries).
In your case, the attorney is hired by a company, and it sounds like at the outset, the attorney is not aware that her client is doing anything illegal. Rather, the company is investigating its employee, for any of a number of reasons (perhaps it fears that the employee will sue the company in the future and it wants to gather evidence to prepare for that litigation, which looks a little slimy but is a perfectly legitimate thing for it to do). Along the way, the investigator discovers and reports to the attorney facts that lead the attorney to conclude that the company is engaged in an illegal activity.
This places some interesting ethical tension on the attorney. The information is privileged and the attorney cannot take any action that prejudices her client’s interests. So she cannot report the illegal activity to anyone but her own client — who likely does not want to hear that it is violating the law. The attorney also must take care that her agents do not violate the law themselves nor assist in the violation of law. The attorney must advise her client that it needs to rectify its conduct and cease violating the law in the future. She can dispense advice concerning how to minimize liability both civil and criminal in the process — so long as the advice is intended to and reasonably calculated to cause the client to become compliant with the law.
Does this answer your question? Or have I misread your assumptions?
That answers a lot of questions! Thanks! I do have some followups.
Let’s say that the illegal act is past tense. Fraud on a deal that has already been done (we’re assuming a clear management structure). The company can tell the attorney, I am assuming. Can the attorney tell the investigator so that the investigator has a clear idea of what he is looking for with respect to the employee that they are concerned about?
And where does the line between “representing the interests of your client” end and “covering up the crime” begin?
Lastly, when an attorney declares privilege or work product, how reluctant are judges to pierce that in the event that law enforcement or a plaintiff says otherwise (in this case, I am more concerned about law enforcement)? On the TV shows, the Good Guys convince the judge to look at what their after and determine that it is legitimate work product. The judge does and the Bad Guys case folds quickly. Is that the stuff of TV shows or does that happen in real life?
(I realize that these are kind of involved questions, and I appreciate any information you give, though if any point you need to “bow out” I completely understand.)
The first two question you pose — can the attorney tell the investigator about the past fraud, and what is the line between representing the client and obstruction of justice — is the same, and you should have seen this coming: “It depends.”
If I were to reduce the “depends” down to a bright-line rule, I’d oversimplify fit it as “look but don’t touch.” Or, perhaps to be even a bit more flip, I’d say the line gets crossed right about the same time that documents hit the shredder.
When it comes to testing a claim of work product or privilege, the usual playbook goes like this: first, the party moving for disclosure or discovery petitions the court in some way, explaining how the information they need is not available anywhere else. Second, the party resisting disclosure prepares a “privilege log,” identifying the documents in question but not disclosing them. Third, the judge reviews the privilege log, compares it to the other party’s requests for information, and then picks documents out of that log to review in chambers while the lawyers wait outside. The judge then gives each party about half a loaf.
Please don’t ask me how I know all this. Most lawyers never deal with this stuff.
Are lawyers expected to document everything for a future privilege log? What protections, if any, are there to prevent the investigator himself from having to testify? If it’s not in the log, is it presumed to not be covered by privilege?
Other lawyers’ MMV, of course, but as general rule, we aren’t doing a lot of slapping “PRIVILEGED” on things you find it on our e-mails and fax cover sheets but we don’t really mean it then. When we mean it, we’ll be sure to let you know.
If it’s not in the log, then no claim of privilege is made for it, and it’s fair game for disclosure.