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Presenting a live 90-minute webinar with interactive Q&A
In-House Counsel Communications with
Employees During Litigation Process: Protecting
Attorney-Client Privilege and Work Product Strategies for Interviewing Employees and Obtaining Statements
Regarding Threatened or Pending Litigation
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
THURSDAY, OCTOBER 27, 2016
Stavroula E. Lambrakopoulos, Partner, K&L Gates, Washington, D.C.
Todd Presnell, Partner, Bradley Arant Boult Cummings, Nashville, Tenn.
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FOR LIVE EVENT ONLY
Strafford Publications CLE Webinar October 27, 2016
In-House Counsel Communications with Employees During Litigation Process:
Protecting Attorney-Client Privilege and Work Product
YOU’VE GOT……A COMPLAINT!
NOW WHAT?????
6
COUNSEL’S COMMUNICATIONS WITH EMPLOYEES
DURING LITIGATION ARE MULTI PURPOSE
To Notify Appropriate Employees and Senior Management About Litigation
To Identify universe of documents and employees to be covered by litigation holds
Provide notices internally and be prepared to explain and guide
To Secure, Preserve and Collect data and physical evidence
To Conduct Internal Investigation
To Gain Knowledge of the Facts
To Investigate Whistleblower or Employee Hotline complaints
To Preserve Witness Accuracy and Recollections through Timely Investigation
7
COUNSEL’S COMMUNICATIONS WITH EMPLOYEES
DURING LITIGATION ARE MULTI PURPOSE
To Assess Company’s Potential Liability and Exposure
To Manage Message Internally
To Provide Legal Advice and Recommend Plan of Action
To Keep Senior Management Informed
To Assess and Determine Public Disclosures to Government, Shareholders,
Consumers, Media
To Assist in Identifying Need for Remedial Steps
To Comply With Laws and/or Regulations
To Provide Information in Connection with Claim for Insurance Coverage
8
A DETERMINING FACTOR IN WHETHER PRIVILEGE APPLIES:
WHICH HAT ARE YOU WEARING?
9
A DETERMINING FACTOR IN WHETHER PRIVILEGE APPLIES:
WHICH HAT ARE YOU WEARING?
As legal officer providing legal advice to the company
As a manager of a business unit
As a Chief Compliance Officer
As Secretary to the Company’s Board of Trustees
ALL OF THE ABOVE ?????????
10
SHIELDING COMMUNICATIONS BY ATTORNEY-CLIENT
PRIVILEGE AND/OR ATTORNEY WORK PRODUCT DOCTRINE
To Promote “Full and Frank Communications” Between Attorneys and their Clients
Failure to maintain privilege may leave company’s most sensitive information
exposed to regulators, litigation opponents and competitors
Important to preserve the company’s maximum options including waiving privileges in
order to obtain leverage for the company
Privilege is a double-edged sword fostering candor and protecting documents but
preventing their use later on.
11
SHIELDING COMMUNICATIONS BY ATTORNEY-CLIENT
PRIVILEGE AND/OR ATTORNEY WORK PRODUCT DOCTRINE
Think Ahead:
Is privilege over counsel’s communications or investigation necessary?
Will privilege limit the defense later, such as establishing affirmative defenses?
Will the company benefit by disclosure to government agencies?
Is disclosure required by law, regulation or contract?
When Waiver is at play, what is its scope?
12
DISCOVERY OR INFORMATION REGARDING EMPLOYEE
INTERVIEWS AND EMPLOYEE STATEMENTS BY ADVERSE
PARTIES
Attorney-client privilege
Corporate attorney-client privilege
In-house counsel
Practice tips
13
14
Written Oral
Communication
15
Confidential
Confidential when made Intent to Remain Confidential
16
Legal Purpose
17
Corporate Attorney-Client Privilege
Employee—Outside Counsel Employee—In-House Counsel
18
Corporate Attorney-Client Privilege
Employee—Employee In-House Counsel—Outside Counsel
19
Control
Group
Test
Subject
Matter
Test
Corporations?
20
Control Group Test
Corporate employee who communicates with corporate attorney—
is in a position to take a substantial part in decision that corporation will
make upon advice of counsel.
21
SUBJECT MATTER TEST
Communication made for purpose of rendering legal advice
Made at direction of supervisor
Request made to secure legal advice
Subject matter of communication within scope of employee’s duties
Communication kept confidential
22
Control Group Subject Matter
23
What about
consultants?
24
MICHIGAN
MICHIGAN
Subject Matter Control Group Undecided
W W W
W W
W W
W W
25
In-House
counsel are
lawyers, too
26
In-House Counsel
A corporation can
protect material as
privileged only upon a
clear showing that in-
house counsel acted in
a professional legal
capacity.
27
In-House Counsel
Legal Hat
or
Business Hat
28
Dual-Purpose Communications
Because
of
Primary
Purpose
TWO
STANDARDS
29
What do the judges say?
30
Copying In-House Lawyer
Merely copying or “cc-ing” legal counsel, in and of itself, is not enough to
trigger the attorney–client privilege.
31
Email Attachments
Although the email to which the memorandum is attached is marked
“private” the memorandum itself contains no similar designation.
32
“Privilege” Designations
While it is true that a mere stamp is insufficient to cloak an otherwise
unprivileged document, court will not overlook absence of such a
designation.
33
“Privilege” Designations
Most law firms and corporate legal departments include this warning on all of
their emails as a matter of course. That does not mean, however, that all of the
information contained in those emails is confidential, or has continued to remain
confidential.
34
KEPT CONFIDENTIAL?
Although the Defendant claims that these documents were treated as
confidential and kept in locked cabinets, none of these documents is
marked “confidential” or “privileged.” The documents were not
segregated, but were intermingled with all other personnel documents.
35
KEPT CONFIDENTIAL?
Just because a document is designated “CONFIDENTIAL-ATTORNEY/CLIENT
PRIVILEGED” does not mean that the Court can assume that the information
was continually maintained as such.
36
LEGAL PURPOSE
In a situation where the author or recipient of allegedly privileged documents functions as a corporate manager as well as an attorney, efforts must include clear designation of those communications sent or received in his capacity as a legal advisor.
37
ATTORNEY-CLIENT PRIVILEGE
US law applies protection of attorney-client privilege to employee communications
with counsel if:
Communication is between a lawyer and the client for the purpose of securing legal advice;
Employee making the communication did so at the direction of his/her corporate superior;
The superior made the request so that the corporation could secure legal advice;
The subject matter of the communication is within the scope of the employee’s corporate
duties;
The communication is made to the lawyer in confidence outside the presence of strangers.
The communication is not disseminated beyond those persons internally who, due to
corporate structure, need to know the contents; and,
The client has invoked and not waived the privilege.
PRIVILEGE = PROTECTION
(But see Crime/Fraud and other Exceptions)
Who “Owns” the Privilege? Who is the Client?
38
ATTORNEY-CLIENT PRIVILEGE
Practical tips:
Attorney-Client Privilege is Based on the Attorney-Client Relationship
Subsequent Disclosure Affected by Waiver
Privilege does not Shield Facts
Engagement letter with outside counsel conducting the investigation or handling
the litigation should document the scope
Management/board should direct employees to cooperate with counsel
Communication Should Be Protected
o Clearly Marked as PRIVILEGED & CONFIDENTIAL
o FORWARDING should be strictly prohibited or restricted (mark DO NOT
FORWARD)
o Documents Containing Privileged Communication Should be Safe-Guarded
o Limit distribution list on a “need to know” basis
39
ATTORNEY-CLIENT PRIVILEGE
Not all jurisdictions will recognize attorney-client or work product privilege or apply it
to internal investigations
U.S. and UK recognize the attorney-client and work product privileges if investigation
is conducted by in-house or outside counsel in anticipation of litigation or regulatory
investigations
EU directive applies privilege for communications of outside counsel but not in-house
counsel. Note country-by-country variations
Japan recognizes confidentiality but not privilege. Written report provided to Board
during a regular Board meeting would be available to company’s shareholders
Practical tip: Counsel should familiarize oneself with laws of applicable jurisdictions in the
beginning of the investigation or litigation
40
WORK-PRODUCT DOCTRINE
Not an evidentiary privilege
41
WORK-PRODUCT DOCTRINE
Burden
Shifting
42
Requesting Party
Relevant
Not
otherwise
privileged
Documents
or materials
43
Opposing Party
Anticipation
of
litigation
By party or
party’s
lawyer
No Waiver
44
FACT WORK
PRODUCT
V.
OPINION WORK
PRODUCT
45
Requesting Party
Substantial
Need
Unable to
obtain w/o
undue
hardship
Fact Work Product Articulate with
specificity
46
Requesting Party
Substantial
Need
Unable to
obtain w/o
undue
hardship
Opinion Work Product
But …
47
OPINION WORK PRODUCT
1. Deserves special protection
2. Far stronger showing of necessity and unavailability
3. Only in rare, extraordinary circumstances
4. Nearly absolute immunity from discovery
5. Attorney’s work product at issue
48
WORK PRODUCT PRACTICE TIPS
1. Mark documents as work product
2. State that it is OPINION work product
3. Confidential
4. Instructions to not disseminate
49
FRCP 26(B)(3)(C)
50
WORK PRODUCT?
Manitowac Co. v. Kachner, 2016 WL 2644857 (N.D. Ill. May 10, 2016)
Coito v. Superior Court, 278 P.3d 860 (Cal. 2012).
51
ATTORNEY WORK PRODUCT DOCTRINE
See Upjohn Co. v. United States, 449 U.S. 383 (1981)
Protects Documents Created or Collected for the Purpose of Assisting with Litigation
Documents incorporating or reflecting the opinion of attorneys, including witness
interview memos, white papers, investigation reports
Analyses created for litigation or in anticipation of it
Historical facts or chronologies prepared by or at the direction of counsel
Expert analyses prepared by expert retained by counsel
Privilege is based on the purpose of the document’s creation: Motivated by ongoing
or anticipated litigation.
Disclosure can be ordered if the adverse party cannot obtain a substantial equivalent
to the underlying facts or documents without “undue hardship”
52
ATTORNEY WORK PRODUCT DOCTRINE
Privilege will apply to experts retained by counsel if properly established
Attorney work product privilege will apply to counsels’ memoranda of witness
interviews containing counsels’ mental impressions
May not apply to shield transcripts, verbatim notes, or recordings of witness
statements, or a recitations of facts
Work Product privilege is not absolute and discovery may be available under
narrow circumstances
Practical tip: Incorporating legal analysis and counsels’ mental impressions to the
memo while restricting dissemination of the memo are key to triggering protections of the
attorney work product privilege
53
CONSIDERATIONS WHEN DECIDING WHETHER TO
TAKE STATEMENTS FROM EMPLOYEES
Discoverability
Ethical considerations
Upjohn warnings
Privilege
Privilege Waiver
Work-Product Protection
Video or verbatim transcript
54
INTERVIEWING EMPLOYEE WITNESSES
Do they need separate counsel? Can you even approach them?
Cooperation provisions in employment agreements
Model Rules of Professional Responsibility
Client-Lawyer Relationship
Rule 1.13 Organization As Client
Rule 1.6 Confidentiality of Information
Transactions with Persons Other than Clients
Rule 4.3 Dealing with Unrepresented Person
Rule 4.4 Respect for Rights of Third Persons
55
MODEL RULES OF PROFESSIONAL RESPONSIBILITY
Rule 1.13 Organization As Client
(a) A lawyer employed or retained by an organization represents the organization
acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person
associated with the organization is engaged in action, intends to act or refuses to act in a
matter related to the representation that is a violation of a legal obligation to the
organization, or a violation of law that reasonably might be imputed to the organization,
and that is likely to result in substantial injury to the organization, then the lawyer shall
proceed as is reasonably necessary in the best interest of the organization. Unless the
lawyer reasonably believes that it is not necessary in the best interest of the organization
to do so, the lawyer shall refer the matter to higher authority in the organization,
including, if warranted by the circumstances to the highest authority that can act on
behalf of the organization as determined by applicable law.
56
MODEL RULES OF PROFESSIONAL RESPONSIBILITY
Rule 1.13 Organization As Client (cont’d)
(c) Except as provided in paragraph (d), if
(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that
can act on behalf of the organization insists upon or fails to address in a timely and
appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization, then the lawyer may reveal information relating to
the representation whether or not Rule 1.6 permits such disclosure, but only if and to the
extent the lawyer reasonably believes necessary to prevent substantial injury to the
organization.
(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's
representation of an organization to investigate an alleged violation of law, or to defend
the organization or an officer, employee or other constituent associated with the
organization against a claim arising out of an alleged violation of law.
57
MODEL RULES OF PROFESSIONAL RESPONSIBILITY
Rule 1.13 Organization As Client (cont’d)
(e) A lawyer who reasonably believes that he or she has been discharged because of the
lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under
circumstances that require or permit the lawyer to take action under either of those
paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that
the organization's highest authority is informed of the lawyer's discharge or withdrawal.
(f) In dealing with an organization's directors, officers, employees, members,
shareholders or other constituents, a lawyer shall explain the identity of the client
when the lawyer knows or reasonably should know that the organization's
interests are adverse to those of the constituents with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of
Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7,
the consent shall be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.
58
MODEL RULES OF PROFESSIONAL RESPONSIBILITY
Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client
gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer
reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial interests or property of another and in furtherance of which the client
has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that
is reasonably certain to result or has resulted from the client's commission of a crime or fraud in
furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the
client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct
in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's
representation of the client;
59
MODEL RULES OF PROFESSIONAL RESPONSIBILITY
Rule 1.6 Confidentiality of Information (cont’d)
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of
employment or from changes in the composition or ownership of a firm, but only if the
revealed information would not compromise the attorney-client privilege or otherwise
prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to, information relating to the representation of a
client.
60
MODEL RULES OF PROFESSIONAL RESPONSIBILITY
Rule 4.3 Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer
shall not state or imply that the lawyer is disinterested. When the lawyer knows or
reasonably should know that the unrepresented person misunderstands the lawyer’s role
in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
The lawyer shall not give legal advice to an unrepresented person, other than the advice
to secure counsel, if the lawyer knows or reasonably should know that the interests of
such a person are or have a reasonable possibility of being in conflict with the interests of
the client.
61
MODEL RULES OF PROFESSIONAL RESPONSIBILITY
Rule 4.4 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use methods
of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating
to the representation of the lawyer's client and knows or reasonably should know
that the document or electronically stored information was inadvertently sent shall
promptly notify the sender.
62
INTERVIEWING EMPLOYEE WITNESSES
Assess whether employees should be represented by their individual counsel for your
interview
If criminal matter is pending, consider whether laws of the jurisdiction prevent or limit
counsel’s ability to conduct interview
When is “shadow” counsel appropriate and how does that work?
Who pays for their lawyers?
Indemnification obligations
Advances & Undertakings
Insurance claims and coverage
Joint Defense Agreements – when should you have one and how do they work? Oral
or written?
The delicate balance of collaboration vs. collusion
63
APPROACHING EMPLOYEE WITNESSES FOR
INTERVIEWS AND INFORMATION
Importance of the Upjohn Warnings:
Notify witnesses that:
1. counsel is retained by the company or its Audit Committee/Board;
2. communications are confidential subject to privilege;
3. company, who owns the privilege, may choose to waive the privilege and
disclose information provided by the witness; and,
4. counsel does not represent the witness.
Memorialize in writing that you have provided the Upjohn warning and that it was
understood
Consequences of Failure to Provide Upjohn Warnings
64
APPROACHING EMPLOYEE WITNESSES FOR
INTERVIEWS AND INFORMATION
Labor laws in various countries may limit counsel’s ability to approach and interview
employees outside of the presence of their counsel or a union representative
Other laws may limit the availability, use and/or subsequent disclosure of witness
statements provided to counsel in an internal investigation to governmental
authorities
Cultural and language barriers and local customs may affect how witnesses will
respond to the investigation. Do you need translators and/or local counsel within each
jurisdiction?
Practical tip: Engage counsel or interpreters who can communicate to employees in
their native languages
65
OBTAINING STATEMENTS FROM EMPLOYEE WITNESSES
Think Ahead
What will the statement be used for?
Who should conduct the interview? HR, legal, both together?
Should outside counsel be involved and/or present?
Do you need statement for personnel file or regulatory filing (i.e. Form U-5)?
Are you seeking an affidavit to append to a court pleading?
Is there a possibility of disclosure to adverse parties in litigation, to government
investigations or publicly? What are the pros and cons of such disclosures?
Can the statements come back to haunt the organization?
Do you want the statements in writing, signed or attested to by employee?
Is the employee represented by personal counsel?
Would counsel’s privilege-protected confidential notes of the employee interview be
sufficient?
66
OBTAINING STATEMENTS FROM EMPLOYEE WITNESSES
Practical Tips
When in doubt, err on the side of confidentiality to preserve company’s maximum
options and leverage!
Conduct interviews first to determine what witness might say before deciding whether
statement is committed to writing!
Include counsel in HR interviews and make sure that any notes and memos meet the
elements for privilege protection including: prepared by or at the direction of counsel;
incorporating counsel’s mental impressions; prepared in anticipation of potential
litigation; clearly marked as confidential and privileged.
THINK BEFORE SHARING!
Where documents are being prepared for inclusion in personnel file or to be disclosed
to parties outside the privilege zone, protect drafts prepared by counsel or containing
counsel’s advice or comments.
67
MAINTAINING PRIVILEGE PROTECTIONS WHEN
COMMUNICATING WITH EMPLOYEES REGARDING MEDIA
ISSUES
Alomari v. Ohio Dep’t of
Public Safety, 626 Fed.
App’x 558 (2015).
68
MAINTAINING PRIVILEGE PROTECTIONS WHEN
COMMUNICATING WITH EMPLOYEES REGARDING MEDIA
ISSUES
Bloomingburg Jewish
Educ. Ctr. v. Village of
Bloomingburg, 2016 WL
1069956 (SDNY Mar.
18, 2016).
69
PROTECTING COMPANY’S PRIVILEGE WHILE COOPERATING
WITH REGULATORS IN GOVERNMENT INVESTIGATIONS
“Credit for Cooperation” a pervasive theme in Government Investigations
Expectations may vary depending on the regulator(s) and the company’s potential
exposure to government enforcement action
Enormous pressure from regulators to cooperate with their investigation
Area is fraught with risks and potential pitfalls but advance thought vital
Consider whether civil or criminal matter (or potential for criminal) and whether Fifth
Amendment may be invoked
Evolution of what “Credit for Cooperation involves but still subject to agency
determination
COOPERATION MAY MEAN WAIVER OR SOMETHING CLOSE TO IT
70
PROTECTING COMPANY’S PRIVILEGE WHILE COOPERATING
WITH REGULATORS IN GOVERNMENT INVESTIGATIONS
Agencies may differ in their approaches
U.S. Securities and Exchange Commission (“SEC”) Enforcement
Cooperation Initiative
2001 Seaboard Factors : self-policing and appropriate compliance
procedures and “tone at the top”; effective self-disclosure of misconduct
including a thorough version of the nature, extent and origins of the
misconduct; remediation; and cooperation (i.e. providing SEC staff with all
information relevant to underlying violations.
Deferred Prosecution and Non-Prosecution Agreements
Whistleblower bounties
71
THE YATES MEMO — HOW HAS IT REDEFINED COOPERATION
AND DEALING WITH INDIVIDUAL OFFICERS AND DIRECTORS?
U.S. Department of Justice Cooperation Initiatives
Yates Memo
DOJ’s expectation that company will conduct timely, appropriate,
thorough and independent investigation
To receive any cooperation credit , company must disclose all non-
privileged information about individual wrongdoing to DOJ
Partial Credit not available to those withholding information about
individual misconduct
Credit hinges on whether company has self-disclosed the violation and
helped the government identify and hold accountable individual
wrongdoers at the company
FCPA Pilot Cooperation Initiative
Yates Memo in Action
72
FEDERAL & STATE BANKING REGULATORS
Bank Examiner Privilege
Protects information and communications between financial institutions (their
employees & agents) and certain banking regulators including the OCC, the
Board of Governors of the Federal Reserve System, FDIC, Consumer Financial
Protection Board (“CFPB”), and various state banking agencies
Covers confidential supervisory information including regulator communications
regarding examinations, examination reports and related documents and
information
Privilege belongs to the institution but government regulator must have
opportunity to defend the assertion of the privilege
Unclear whether this privilege would be upheld in an enforcement action by that
or another agency (i.e. CFPB)
73
PROTECTING COMPANY’S PRIVILEGE WHILE COOPERATING
WITH REGULATORS IN GOVERNMENT INVESTIGATIONS
Issues to Consider in Government Investigations When Seeking Cooperation Credit
Balancing company interests with interests of individual employees, officers and directors,
and members of the board
When are government expectations for “cooperation” at odds with ethical obligations —
Tensions between company interests and serving up individuals
What is the role of the General Counsel and other senior counsel as “gatekeepers”
Potential individual liabilities to navigate
When is it time to recommend separate counsel to the individual employees or officers being
interviewed by in-house and/or outside counsel
How do you memorialize the results of the investigation including the employee interviews?
Do you prepare an oral or a written report?
What do you ultimately share with the regulators? (i.e. the report, the notes, facts,
chronologies, documents)
Are you anticipating private litigation arising out of government investigation —shareholder
suits, derivative suits, employment litigation
74
PROTECTING COMPANY’S PRIVILEGE WHILE COOPERATING
WITH REGULATORS IN GOVERNMENT INVESTIGATIONS
Your shield cannot be your sword
Full Waiver and “Selective” Waiver — the lessons of Diversified Industries v. Meredith, 572 F.2d
596 (8th Cir. 1978) & In re Steinhardt Partners, 9 F.3d 230, 236 (2d Cir. 1996)
Most jurisdictions do not recognize “selective” waiver for voluntary disclosures in government
investigations
See In re Pacific Pictures Corp., 679 F.3d 1121 (9th Cir. 2012) (the doctrine has been
“rejected by every other circuit to consider the issue” since Diversified Industries)
Confidentiality Agreements with Government may protect privilege in limited instances
See In re Natural Gas Commodity Litig., 2005 WL 1457666 at *8 (S.D.N.Y. June 21,
2005)
75
PRACTICAL TIPS IN DEALING WITH GOVERNMENT
INVESTIGATIONS
Involve outside counsel in complex, sensitive investigations particularly when independence will be
considered a factor in assessing investigation’s credibility
Preserve privileges at the outset until fact gathering is complete so as to maximize options in
dealing with government
Separate business advice from legal advice
Consider whether “credit” for cooperation can be quantified and weigh that against the risks to your
company
Remember that facts and non-privileged documents do not become privileged by being circulated
to counsel
Cooperation can be thorough and acceptable to regulators even without a privilege waiver
DON’T share privileged documents including interview notes and investigative reports.
76
PRACTICAL TIPS IN DEALING WITH GOVERNMENT
INVESTIGATIONS
Consider whether a written report of the investigation’s findings and conclusions is
required and if not, keep any report oral
DO provide oral presentation to regulators with reference to facts and conclusions,
compilations of key non-privileged documents, explanations of personnel actions and
remedial steps
Stay fluid as internal investigation and regulatory actions evolve
Consider nature of related litigation and whether waiver in the government action will
substantially harm litigation interests
Balance those interests with company’s interests with respect to the government
investigation
77
Faculty Biographies
Stavroula E. Lambrakopoulos is a
partner at K&L Gates who concentrates
her practice in securities enforcement
matters, securities and financial services
litigation, internal investigations and
broker-dealer regulation. She regularly
represents corporate and individual clients
in enforcement proceedings before the
SEC, the Department of Justice, FINRA,
and state securities regulators. She
represents financial institutions,
corporations, and their officers in complex
financial services cases and securities
class action litigation.
Todd Presnell, a Partner at Bradley
Arant Boult Cummings, is a trial lawyer
licensed in Georgia and Tennessee who
represents major corporations, small
businesses, governmental entities, tax-
exempt organizations, and individuals in
their litigation-related needs. He is a
recognized expert in the area of
evidentiary privileges, including serving as
editor-in-chief of Evidentiary Privileges for
Corporate Counsel (DRI 2008), and
provides audit-related and training
services to in-house legal departments in
establishing and maintaining the corporate
attorney-client privilege. He also works
with in-house legal departments in
creating and implementing document-
retention policies and procedures.
78
For more information contact us:
Stavroula E. Lambrakopoulos, Esq.
Partner
K&L Gates LLP
1601 K Street, NW
Washington, DC 20006-1600
O: 202.778.9248
www.klgates.com
Todd Presnell, Esq.
Partner
Bradley Arant Boult Cummings
Roundtable Plaza
1600 Division Street, Suite 700
Nashville, TN 37203
O: 615.252.2355
www.bradley.com
79
