Early Mistakes that Destroy Privilege
Dec. 2, 2016
The Rules of Evidence protects communication between attorneys and clients from being revealed to the other side during a dispute. It’s a basic concept found in federal and state rules of evidence throughout the country. It often comes into play when an employee or former employee alleges harassment or other wrongdoing. Harassment accusations are often a surprise. The company needs to figure out what really happened, and time is almost always an issue. It’s understandable that leaders want to start asking questions and investigating the situation.
If this happens in your organization, make sure your team resists the urge to jump into an investigation without an appropriate plan or your company could lose its attorney-client privilege. In many cases, the company accused of wrongdoing is unpleasantly surprised to learn that they will be forced to give the other side access to many of the internal communications the company assumed would be kept private. The human resources team and managers must navigate early investigations carefully and make sure the proper individuals are conducting them.
When allegations of harassment or other workplace misconduct bubble to the surface, smart managers and HR directors know they should call corporate counsel or other outside investigatory resources without delay. Unfortunately, the day-to-day realities of business sometimes keep teams from seeing the big picture. Intellectually, most of us recognize that a small allegation can quickly turn into a corporate nightmare, but we often hesitate to call in the experts. Why is that? There are a few human tendencies that get in the way of wisdom when it comes to bringing in a third party to conduct an investigation.
Embarrassment. The people on the front lines might realize (in hindsight) that they failed to properly handle a delicate employee situation. It’s not unusual for those individuals to avoid pulling in legal counsel or another third party investigator because of embarrassment. They might also hope they will be able to fix the problem so it will simply “go away.”
Ego. Too often, ego prevents managers (and sometimes HR teams) from making good decisions. It’s not unusual to hear internal team members say something like, “No one understands the situation like I do. I know exactly how to handle this employee, and I don’t want those higher-ups interfering with my work. They will just complicate things and slow everything down.” Sound familiar?
Excessive Frugality. It is, of course, critical that the company consider expenditures carefully. The problem is that we often prioritize short-term economics over long-term success. Lawyers and outside investigators can be expensive, and it might be tough to justify the expense when a complaint seems run-of-the-mill. Unfortunately, as experienced managers and human resources professionals can tell you, seemingly simple situations rarely stay that way for very long. Without wise counsel at the outset, there is a much greater risk that the company could lose privileges and confidentiality of the information it collects during the investigation and the internal analysis of that information.
Courts do not automatically recognize documents as privileged when a company lawyer (either internal or external) is involved in the investigation. The attorney must be conducting the investigation for the purpose of providing legal advice to her client. Unfortunately, “providing legal advice” isn’t quite as simple as it sounds. Especially when it comes to in-house counsel, courts sometimes determine that the attorney is acting in a corporate or administrative role as opposed to a purely legal role.
Courts continue to become more and more strict about the fact that the paper trail needs to clearly indicate that the company is collecting information so that the company’s attorney will be able to advise her client. Attorney-client privilege and other confidentiality issues are complex. Luckily, HR teams and managers don’t have to become experts on the subject. They simply need to bring experts on board as soon as possible.
Cite this article: Reck, Jennifer (2016). Early Mistakes That Destroy Privilege. Available: https://www.lynchlf.com/blog/early-mistakes-that-destroy-privilege/
 If you are a company executive, this is a good time to remind you that corporate counsel is not YOUR attorney. Corporate counsel represents the company. Good counsel and investigators will make it crystal clear that investigatory discussions are for the company’s benefit, not necessarily for the benefit of the executives (if they are at cross purposes with the company).