Protecting Privilege in Workplace and Institutional Investigations

In today’s regulatory and reputational climate, how an organization conducts an internal investigation can be as important as what the investigation finds. Whether you are a public entity, private company, educational institution, or nonprofit organization, one misstep in preserving legal privilege can expose sensitive information to discovery, regulators, or the media. Engaging an experienced independent investigator with legal expertise is essential to protecting the investigation to the extent possible.

Who Conducts the Investigation Matters

Privilege often hinges on who is conducting the investigation and for what purpose.

• If attorneys (or their agents) conduct or supervise the investigation and it is being conducted to provide legal advice, privilege is more likely to apply.
• If HR or management performs the work primarily for business or personnel reasons, privilege may not apply.

Preserving Privilege in Practice

To protect privilege throughout an investigation:

• Engage counsel early. Privilege attaches when an attorney is providing or obtaining legal advice—not after the fact.
• Document purpose clearly. Define the investigation’s scope in writing as being conducted to provide legal advice.
• Give Upjohn warnings. When interviewing employees, clarify that the attorney represents the organization, not the individual.
• Limit distribution. Share privileged materials only with those who need to know and can maintain confidentiality.
• Label documents appropriately. Mark communications “Privileged and Confidential—Attorney–Client Communication / Work Product,” but only when accurate.
• Avoid mixing legal and business advice. If business guidance is required, separate it from legal counsel’s communications.

For public entities, be mindful of additional disclosure risks under laws such as Pennsylvania’s Right to Know Law, which contains exemptions that may apply to your investigation.

Privilege Protects the Integrity of the Process

Every organization—from corporations to nonprofits to public entities—faces moments when an independent investigation is necessary. The manner in which the organization investigates makes a difference.

Engaging a qualified attorney-investigator ensures:

• The investigation is structured within a sound legal framework
• Privilege and work-product protections are preserved
• The resulting findings carry credibility and legal protection.  The client can decide whether to waive privilege at a later date, and some clients do so in order to use the investigation as a defense, for example.

SMGG’s Independent Investigations team is available to handle investigations 24 hours a day/7days a week, using the skills, sensitivities, and perspective to approach each matter with the most appropriate process.

Whether you are required to conduct an investigation by law, by your own internal policies, or you desire to address an internal conflict within your organization, we encourage you to contact us for a consultation.

Should you have any questions, please reach out to Gretchen E. Moore at (412) 227-0275 or gmoore@smgglaw.com.

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