Breathing Life into Privilege, and the False Claims Act

Recent legal cases have highlighted the important issue of whether or not attorney-client privilege attaches to internal corporate investigations particularly if the investigations involve serious civil or criminal allegations relating to a breach of the public trust, including bribery, corruption, and violations of the False Claims Act (FCA).

Several recent court cases have significantly defined, impacted, and otherwise shaped the overall legal issue of internal corporate investigations and the application of attorney-client privilege, specifically as it pertains to:

1. The internal investigation’s nexus to legal advice,

2. Criminal fraud investigations, and

3. Counsel’s retention of outside non-lawyer consultants.

These cases demonstrate the extent to which the Courts are willing to apply and otherwise presume that the attorney-client privilege exists on such internal investigations, as opposed to allowing plaintiffs unfettered access to the content of the investigations in discovery.