Professional privilege in internal investigations

Legal professional privilege is a cornerstone of the legal profession. It distinguishes the profession from all other professions. Privilege, at its most basic, is a fundamental right (in most common law jurisdictions) that enables individuals and corporate entities to resist disclosure of confidential and potentially incriminating/sensitive material, communicated with their lawyer for the purposes of legal and/or litigation advice, to third parties, including regulators and prosecutors. It engenders confidence and candor – between client and lawyers – that is essential to the pursuit of justice.

However, not every solicitor-client communication attracts privilege, and privilege in the context of internal investigations has been scrutinised recently by various courts in some jurisdictions. Those court decisions have, on the one hand, appeared to erode privilege, while on the other hand, privilege has been more readily prescribed. For lawyers (whether in private practice or in-house), what privilege, if any, they can assert on behalf of their client is becoming a complex issue. This article touches upon some recent privilege-related developments for those lawyers working in internal investigations.

Will privilege apply?

Whether communications made in the context of an internal investigation are protected by privilege will depend on the jurisdiction(s), the facts and the circumstances giving rise to the investigation. Privilege in this article is used in the general sense, as noted above, and each jurisdiction where it is recognized has its own laws and rules that define it. Accordingly, a starting point for any investigation is to first consider whether privilege exists, and will it apply?

John Zadkovich is a counsel at Vinson & Elkins in Hong Kong