The FCPA Report

The definitive source of actionable intelligence covering the Foreign Corrupt Practices Act

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By Topic: Attorney-Client Privilege

  • From Vol. 6 No.4 (Mar. 1, 2017)

    Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Implications for Collateral Litigation (Part Three of Three)

    When a company conducts an internal investigation and cooperates with the government, collateral litigation can follow. To support their discovery efforts, litigants may try to argue, among other things, that the privilege and work product protection were waived as a result of the company’s cooperation with the government. This third and final installment in the three-part guest article series by Eric J. Gorman, a partner at Skadden Arps, and his associate, Brooke A. Winterhalter, analyzes strategies and legal arguments that companies may wish to consider as they seek to shield investigation materials shared with the government from third-party discovery requests in collateral litigation. For the first two installments in the series see “Establishing Privilege and Work Product in an Investigation” (Feb. 1, 2017) and “Cooperation Benefits and Risks” (Feb. 15, 2017).

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  • From Vol. 6 No.3 (Feb. 15, 2017)

    Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating with the Government: Cooperation Benefits and Risks (Part Two of Three)

    When it comes to privilege and work product, companies cooperating with the government while conducting investigations often face important strategic questions: how much information to share, and whether to include privileged and attorney work product materials in their disclosures to the government. In this second installment in a three-part guest article series, Eric J. Gorman and Brooke A. Winterhalter, partner and associate, respectively, at Skadden, analyze this strategic cooperation question through the lens of the attorney-client privilege and attorney work product doctrine, and identify certain steps that companies may wish to take to try to minimize the risk or extent of a waiver resulting from whatever approach they take. For the first installment in the series, see “Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Establishing Privilege and Work Product in an Investigation” (Feb. 1, 2017).

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  • From Vol. 6 No.2 (Feb. 1, 2017)

    Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Establishing Privilege and Work Product in an Investigation (Part One of Three)

    The DOJ and SEC offer powerful cooperation incentives to companies that internally investigate and remediate alleged violations of the FCPA and share the facts they learn with the government.While government expressly declines to require that companies disclose privileged or work product investigation materials as a condition of gaining cooperation credit, protecting the privilege and work product, a crucial objective for companies during investigations, is challenging. The privilege, and to a lesser extent the work product doctrine, generally require confidentiality. Cooperation with the government, by contrast, often necessitates disclosure. In a three-part guest article series, Eric J. Gorman, a partner at Skadden Arps, and his associate, Brooke A. Winterhalter, seek to unwind that conundrum by closely examining the interplay between the attorney-client privilege and attorney work product protection on the one hand, and cooperation with the government on the other. This first part in the series addresses how and when the attorney-client privilege and attorney work product protection are created during internal investigations, and steps that can be taken to establish and maintain those protections. See also “Attorney-Consultant Privilege? Key Considerations for Using the Kovel Doctrine (Part One of Two)” (Dec. 21, 2016); Part Two (Jan. 18, 2017).

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  • From Vol. 6 No.1 (Jan. 18, 2017)

    Attorney-Consultant Privilege? Structuring and Implementing the Kovel Arrangement (Part Two of Two)

    So-called “Kovel arrangements” provide unique opportunities for companies and their legal counsel to extend the attorney-client privilege to consultants, such as those performing anti-corruption investigations or audits. After deciding to use the arrangement, the next (and most important) step is ensuring that the entire Kovel engagement is performed correctly so that the privilege will be recognized by regulators and courts, and documents detailing the company’s operational deficiencies are not unnecessarily made available. This article, the second in a two-part series, provides practical guidance regarding the provisions that need to be included in an engagement letter with a consultant, details daily steps a company must take to ensure it remains Kovel-compliant and examines circumstances under which it is and is not appropriate for companies to employ Kovel arrangements. The first article in this series detailed the legal requirements of the Kovel doctrine, as well as considerations for companies when deciding whether to invoke or waive the privilege. See also “When Are Reports of Internal Investigations Protected by Attorney-Client Privilege?” (Apr. 30, 2014).

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  • From Vol. 5 No.25 (Dec. 21, 2016)

    Attorney-Consultant Privilege? Key Considerations for Using the Kovel Doctrine (Part One of Two)

    Most companies are comfortable that their interactions with outside counsel during investigations, audits and compliance assessments are covered by privilege. However, whether that protection also applies to the range of non-attorney consultants who also help attorneys with those efforts, such as forensic accountants and investigators, is less clear. The Second Circuit’s Kovel decision in 1961 extended the attorney-client privilege to third parties assisting attorneys in representing clients under certain circumstances. This two-part series discusses how companies can most successfully make use of so-called “Kovel arrangements.” This first article describes the requirements of the Kovel privilege as established by case law. The second article will detail the requisite features of a fully compliant Kovel arrangement and when they are appropriate. See also “Preserving the Attorney-Client Privilege in Cross-Border Internal Investigations” (Jun. 26, 2013).

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  • From Vol. 5 No.19 (Sep. 28, 2016)

    Experts from PwC Discuss Compliance Audits and Common Missteps

    Compliance auditing is a critical component of an effective anti-corruption compliance program, recognized both by the U.S. Sentencing Guidelines and the government’s FCPA Resource Guide. A recent Strafford program, “FCPA Compliance Audits: Lessons From Recent Investigations,” discussed regulators’ expectations regarding compliance auditing, the process for scoping and conducting a compliance audit and common audit pitfalls. David A. Wilson, a partner at Thompson Hine, led the discussion, which featured Sulaksh Shah, a partner at PwC, and James Gargas, a director at that firm. This article discusses some of the key takeaways from the program. See also our interview series, “Best Practices for Performing Compliance Program Assessments: Pamela Passman of CREATe.org” (Apr. 6, 2016); “Susan Markel of AlixPartners” (Feb. 24, 2016); and “Jeffrey Kaplan of Kaplan & Walker” (Nov. 4, 2015).

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  • From Vol. 5 No.13 (Jun. 29, 2016)

    Foreign Attorneys Share Insight on Data Privacy and Privilege in Multinational Investigations

    Multi-jurisdictional anti-corruption investigations are proliferating and subject companies must manage competing requests and competing legal regimes. At the recent White Collar Crime Institute presented by the New York City Bar Association, a panel of foreign lawyers delved into the challenges faced by counsel confronting multinational regulatory actions, including coordinating requests from multiple jurisdictions, preserving attorney-client privilege, conducting witness interviews and navigating data privacy laws. The panel featured attorneys based in London, Geneva, Hong Kong and Sao Paulo. See “How the Expanding Petrobras Scandal May Spark a New Era of Multi-Lateral Enforcement” (Dec. 2, 2015).

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  • From Vol. 3 No.23 (Nov. 19, 2014)

    Supreme Court’s Refusal to Review Crime-Fraud Case Could Have Chilling Effect on Attorney-Client Relationship

    The Supreme Court has declined to review a Third Circuit decision compelling an attorney in a foreign bribery case to testify against his client, raising concerns among members of the FCPA bar that companies could be discouraged from seeking legal advice on whether payments could violate the FCPA.  “I do think it has the potential to have a chilling effect on the attorney-client privilege,” a veteran FCPA attorney told Policy and Regulatory Report, The FCPA Report’s sister publication.  See also “D.C. Circuit Confirms Applicability of Attorney-Client Privilege to Internal Investigations,” The FCPA Report, Vol. 3, No. 16 (Aug. 6, 2014).

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  • From Vol. 3 No.16 (Aug. 6, 2014)

    Delaware Supreme Court Gives Wal-Mart Shareholder Access to Attorney-Client Privileged Documents

    Despite the American legal system’s reverence for the attorney-client relationship, the attorney-client privilege is not unlimited.  The interest of shareholders in investigating possible breaches of fiduciary duty or other misconduct by a corporation’s officers or directors may, in appropriate circumstances, defeat the privilege.  In 2012, a Wal-Mart shareholder sought access to documents – including documents subject to the attorney-client privilege and related work-product doctrine – relating to the alleged bribery of Mexican officials by a Wal-Mart subsidiary and Wal-Mart’s flawed investigation of that misconduct.  Affirming a Chancery Court ruling that ordered Wal-Mart to turn over privileged documents, the Delaware Supreme Court expressly adopted an exception to the attorney-client privilege for a corporate shareholder who shows “good cause” for obtaining the corporation’s privileged materials.  See also “When Are Reports of Internal Investigations Protected by Attorney-Client Privilege?,” The FCPA Report, Vol. 3, No. 9 (Apr. 30, 2014).

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  • From Vol. 3 No.16 (Aug. 6, 2014)

    D.C. Circuit Confirms Applicability of Attorney-Client Privilege to Internal Investigations

    Barko v. Halliburton, a March 2014 decision by the U.S. District Court for the District of Columbia, sent shock waves through the ranks of corporate counsel: The District Court ruled that an internal investigation was not privileged because it would have been conducted regardless of whether the company was also seeking legal advice.  In an important reaffirmation of the strength and breadth of the attorney-client privilege, the U.S. Court of Appeals for the D.C. Circuit recently vacated the District Court’s decision, ruling that the privilege was available so long as seeking legal advice was a “significant” purpose – even if not the sole purpose – of the internal investigation.  This decision coincides with a Delaware Supreme Court ruling, discussed above in this issue of The FCPA Report.  That court expressly adopted an exception to the attorney-client privilege for a corporate shareholder who shows “good cause” for obtaining the corporation’s privileged materials (in that case, Wal-Mart).  See also The FCPA Report’s series on conducting internal investigations: “Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); and “Developing and Implementing the Investigation Plan (Part Two of Two),” The FCPA Report, Vol. 3, No. 1 (Jan. 8, 2014). 

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  • From Vol. 3 No.11 (May 28, 2014)

    Three Questions to Ask After Detecting a Possible FCPA Violation

    A report of bribery has come in: a whistleblower has made a complaint or an employee has discovered a violation of an internal control, such as fraud on an expense report.  Among the questions that must be answered are: Who should conduct which parts of the investigation? When should the investigation end?  How should the issue be remediated?  FCPA experts from Paul Hastings, Akin Gump and KPMG weigh in.  See also “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 3 No.9 (Apr. 30, 2014)

    When Are Reports of Internal Investigations Protected by Attorney-Client Privilege?

    In-house legal departments and outside counsel often work under the assumption that internal investigations conducted by, or under the supervision of, counsel are protected by privilege.  However, a recent decision by the U.S. District Court for the District of Columbia has raised questions as to whether such privilege extends to investigations that are not conducted primarily for the purpose of seeking legal advice or directly in anticipation of litigation.  This article delves into the recent Barko v. Halliburton decision and what it means for companies that may seek to invoke the attorney-client privilege or work-product doctrine to preserve the confidentiality of internal investigations.  See also “Preserving the Attorney-Client Privilege in Cross-Border Internal Investigations,” The FCPA Report, Vol. 2, No. 13 (Jun. 26, 2013).

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  • From Vol. 3 No.6 (Mar. 19, 2014)

    Strategies for Conducting Effective Employee Interviews in an Anti-Corruption Investigation

    A critical part of the fact-gathering process in an internal anti-corruption investigation is the interviewing of employees who may have relevant information, but conducting effective interviews – handling evasive witnesses and protecting attorney-client privilege, for example – is difficult.  A recent webinar conducted by Michael Volkov of The Volkov Law Group LLC provided valuable strategies for maximizing the value of employee interviews.  Volkov discussed, among other things, how to best prepare for the interview, effective questioning techniques and documenting the interview.  See also "How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 2 No.13 (Jun. 26, 2013)

    Preserving the Attorney-Client Privilege in Cross-Border Internal Investigations

    Under pressure to quickly formulate an investigation plan, attorneys conducting an internal investigation on behalf of a company or board committee can easily overlook the importance of establishing procedures at the outset to ensure the preservation of applicable privileges.  That is a mistake.  In a guest article, James Walker, a partner at Richards Kibbe & Orbe LLP, examines the difficult privilege issues faced by both in-house and outside counsel conducting cross-border internal investigations, including (1) the complexities that arise in connection with conducting witness interviews in cross-border investigations; (2) the difference between the law of privilege in the U.S. and other jurisdictions; (3) the considerations involved when communicating with foreign in-house counsel; and (4) pitfalls associated with ignoring data privacy rules.  See also “Representing Foreign Companies in Criminal FCPA Actions: Strategies for Handling the Legal, Practical and Cultural Challenges,” The FCPA Report, Vol. 2, No. 8 (Apr. 17, 2013).

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  • From Vol. 2 No.9 (May 1, 2013)

    FCPA Training That Works: An Interview with Jacqueline C. Wolff, Co-Chair of the Corporate Investigations & White Collar Defense Practice at Manatt, Phelps & Phillips, LLP

    This is the third article in our ongoing series on FCPA and anti-corruption training.  Each of the articles in the series is based on a long-form interview with a thought leader from a different discipline.  Collectively, the articles in this series provide a deep and multidisciplinary view of one of the most important processes available to companies to mitigate FCPA risk.  Our goal in this series is to provide actionable insight – recommendations, best practices and specific techniques that companies can use to improve the effectiveness of their training programs.  To advance that goal, this installment includes our interview with Jacqueline C. Wolff, a Partner at Manatt, Phelps & Phillips, LLP, Co-Chair of Manatt’s Corporate Investigations & White Collar Defense practice and former Chief of the Environmental Crimes Unit and Assistant United States Attorney for the District of New Jersey.  Our interview with Wolff delved deeply into a wide range of relevant topics, including: special considerations applicable to training different categories of employees; when to train third parties; the role of outside counsel in training; the interaction between attorney-client privilege issues and candor during training; the risks of online training; appropriate training frequency; the role of hypotheticals; minimizing cost without sacrificing effectiveness; and training lessons from the November 2012 Guidance.  The prior installment in this series included our interview with Billy Jacobson, Senior Vice President, Co-General Counsel and Chief Compliance Officer of Weatherford International, the global oil and natural gas services company.  See “FCPA Training That Works: An Interview with Billy Jacobson, Chief Compliance Officer of Weatherford International,” The FCPA Report, Vol. 2, No. 8 (Apr. 17, 2013).  And the first installment in the series included our interview with Joseph Spinelli, the head of Navigant’s FCPA practice and former Inspector General of New York State.  See “FCPA Training That Works: An Interview with Joseph Spinelli, Global Leader of Navigant’s Anti-Bribery & Corruption-FCPA Segment,” The FCPA Report, Vol. 2, No. 7 (Apr. 3, 2013).

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  • From Vol. 2 No.9 (May 1, 2013)

    Handling the Challenges of Overseas Anti-Corruption Investigations: Forensic Accountants, Government Expectations, Translators, Upjohn Warnings, Privilege Issues and Recording Interviews

    Internal FCPA investigations do not respect jurisdictional boundaries, and varying customs and laws of different areas critically impact not only internal investigations, but also prosecutions and litigations for multi-national companies that may follow.  Failing to identify and address the specific issues relevant to an anti-corruption investigation can have significant legal and financial consequences.  A recent panel of experts at the American Bar Association’s Institute on Internal Investigations and Forum for In-House Counsel discussed the complexities of internal investigations, sharing their advice on best practices starting with actions to take during the first 72 hours of the investigation.  From both government and private sector perspectives, the panel addressed how to handle language and cultural differences, as well as how to navigate varying legal regimes that affect privilege and complicate the collection of documents.  They also provided insight on interviewing witnesses and how best to deal with the U.S. government when it comes to disclosing an investigation.

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  • From Vol. 2 No.8 (Apr. 17, 2013)

    Representing Foreign Companies in Criminal FCPA Actions: Strategies for Handling the Legal, Practical and Cultural Challenges

    Many FCPA investigations and prosecutions involve foreign companies or foreign subsidiaries of U.S. companies.  When the DOJ investigates or commences a criminal enforcement action against a foreign company, local laws, customs and practices can create challenges for unwary U.S. counsel in areas such as discovery and attorney-client privilege.  A recent event shed light on the topics that frequently come up when dealing with a foreign company client: attorney-client privilege, cross-border discovery, data privacy, obstruction of justice and extradition.  The event participants, all partners at Kaye Scholer LLP, also shared advice on working with in-house counsel in Japan and China and addressed other practical issues specific to the European Union, China and Japan.

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  • From Vol. 2 No.2 (Jan. 23, 2013)

    Specific Strategies from Goldman Sachs, Société Générale and Leading Law Firms on Conducting Cross-Border FCPA Investigations

    The considerable challenges posed by an internal FCPA investigation are compounded when that investigation involves a cross-border component – as it almost invariably does.  In-house and outside counsel in cross-border investigations must navigate legal regimes that often conflict (notably in the area of data privacy); divergent approaches to the attorney-client privilege; varying business and governance structures; and different languages and cultural mores.  Moreover, best practices in the area of cross-border investigations are not codified or neatly packaged; rather, they are a function of long and often arduous experience.  In an effort to identify and communicate some of those best practices, a seasoned panel of in-house and law firm lawyers convened in New York on January 15, 2013 for a panel hosted by Catalyst, an e-discovery services provider.  The panel was moderated by Vasu Muthyala, counsel at O’Melveny & Meyers LLP.  He was joined by Greg Andres, partner at Davis Polk & Wardell LLP; John Driscoll, Managing Director and Director of Litigation and Regulatory Affairs at Société Générale; Justin Shur, partner at Molo Lamken LLP; John Tredennick, Chief Executive Officer of Catalyst; and Christine Chi, Global Head of the Anti-Bribery Group at Goldman Sachs.  The panelists discussed, among other issues: major challenges facing companies performing cross-border investigations, including the differing notions of data privacy and attorney-client privilege in different regions and strategies for coordinating with multiple jurisdictions; tips for conducting a cross-border investigation, including when to retain outside counsel; and the dynamics of reporting, both obligatory reporting via a Suspicious Activity Report and voluntary disclosure, especially in the current whistleblower climate.

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