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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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Employee communications made in confidence during a company&rsquo;s internal investigation can be protected by the attorney-client privilege even where in-house counsel leads the investigation, the D.C. Circuit Court of Appeals has said in a recent ruling.
While the result in <a href="http://www.cadc.uscourts.gov/internet/opinions.nsf/701A3512988256CD85257D04004F78AA/%24file/14-5055-1499662.pdf">In Re:&nbsp; Kellogg Brown &amp; Root, Inc.</a> is not surprising, the case is noteworthy both because the District Court had denied the privilege and ordered the in-house counsel to produce the documents relating to its investigation, forcing the D.C. Circuit (in a mandamus action) to decide the matter, and because of the broad support in the opinion for the assertion of the privilege by in-house counsel.
In holding that the privilege attached, the Court of Appeals rejected the District Court&rsquo;s attempts to distinguish <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&amp;vol=449&amp;invol=383">Upjohn Co. v. United States</a> (the United States Supreme Court opinion holding that privilege applies in internal investigations).&nbsp; The D.C. Circuit said that the privilege exists
<ul>
<li>even though outside counsel was not consulted;</li>
<li>even though some of the interviews were not conducted by lawyers; and</li>
<li>even though the employees who were interviewed were not told that the investigation was conducted to assist the company in obtaining legal advice.</li>
</ul>
The Court of Appeals also dismissed the District Court&rsquo;s rationale that the privilege did not attach because the internal lawyers were conducting the investigation to comply with government regulations, not to secure legal advice.&nbsp; The Court of Appeals said that
<blockquote>
the District Court&rsquo;s novel approach would eradicate the attorney-client privilege for internal investigations conducted by businesses that are required by law to maintain compliance programs, which is now the case in a significant swath of American industry.
</blockquote>
That would chill what the court deemed &ldquo;the valuable efforts of corporate counsel to ensure their client&rsquo;s compliance with the law.&rdquo;
To the extent that in-house lawyers wish to assert the attorney-client privilege over the results of their internal investigations, it remains important to proceed under the Upjohn framework and to document the bases for the work.&nbsp; But the D.C. Circuit&rsquo;s opinion in Kellogg Brown &amp; Root will provide support, in the event that the assertion of the privilege is challenged.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Court upholds attorney-client privilege for in-house counsel