Legal Privilege - a diminishing safeguard for Corporate Defendants

Internal investigation reports undertaken by a Company are extremely important in seeking to understand what and why a serious incident, possibly involving a death, has occurred.Furthermore, as UK prosecuting authorities and Regulators take an increasingly aggressive stance to corporate wrongdoing, internal investigations have become increasingly significant as a means of effectively managing legal and reputational risk.

But how do you prevent those same Regulators from obtaining a copy of the internal report?

Legal privilege plays a key part in this process albeit companies need to understand the limitations that come with this and when this can and cannot be asserted

What is Legal Privilege?

What is the difference between Litigation Privilege and Legal Advice Privilege?

Why is there now concern around Legal Privilege and internal investigations?

How can I protect Legal Privilege in the context of an internal investigation?

Involve lawyers at an early stage - whilst the involvement of lawyers will not automatically clothe the entire investigation it will offer the best prospect of maximising protection.

Consider the client - remember that employees without authority to instruct lawyers do not qualify as a ‘client’ and therefore it is essential for this to be defined at the outset of any investigation.

Employee interviews - instruct employees and those conducting interviews to keep the content of any meeting confidential and undertaken for the external lawyer.

All communications pertaining to legal advice - these should be clearly marked as ‘privileged’ and confidential. Companies should also be explicit on whether the advice sought relates to potential criminal/civil liability (or both) so that it is clear that the dominant purpose of any investigation is the prospect of litigation as opposed to purely a fact finding exercise being carried out solely by the company. In short, the external lawyer must be involved and not be on the periphery.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.