Investigations conducted by either in-house or outside counsel may be protected by the attorney-client privilege, the work-product doctrine, or both. To protect these privileges, investigators must ensure that their work is conducted confidentially. The investigators’ work and findings should not be disclosed outside the company beyond legal advisors or others operating under the direction of counsel, and should only be discussed with those company officials with a need to know.
The company may issue a formal authorization to conduct an investigation, in which it is noted that the review is being conducted in anticipation of potential litigation, that in-house and/or outside counsel is being instructed to provide legal advice regarding the allegations at issue and that any other personnel involved in the investigation—such as accountants or compliance officers—are acting at the direction of counsel. If it becomes necessary to retain other outside resources, such as forensic accountants, local counsel, business intelligence firms, or foreign language interpreters, those engagements should be managed by company attorneys.