February 23, 2015 Articles

Ethical Concerns and Best Practices in Cross-Border Internal Investigations

When conducting a multijurisdictional investigation, don't get caught in the privilege trap

by Katrina A. Hausfeld

Corporate practices for investigating internal wrongdoing have come under heightened scrutiny from various governmental regulatory bodies, both domestically and abroad. Internal investigations are often used as a tool to help executives identify gaps in their company's internal compliance system and reduce the company's potential liability in the event misconduct is discovered. Internal investigations also position companies to promptly identify those involved in any misconduct, determine the truth of allegations leveled against the company or individuals within the company, take remedial steps, determine whether the company ought to proactively self-report any purported misdeeds, and tactically respond to regulator or law enforcement inquiries and investigations should the need arise.

With companies increasingly subjected to inquiries and investigations by regulatory bodies and law enforcement agencies around the globe, the question of how to best protect your clients' internal investigations into alleged compliance failures or misconduct from discovery is paramount. While most countries recognize that the communications between a lawyer and a client should be granted some sort of special protection, when conducting an investigation that touches multiple jurisdictions, it is a mistake to assume that the existence, scope, and application of attorney-client privilege abroad mirrors that of the United States. Moreover, ethical rules may affect how an attorney is required to treat a client's documents and communications, including disclosure. It is thus incumbent upon counsel in a multijurisdictional internal investigation to know and understand both domestic and foreign rules affecting privilege and ethics in order to best protect a client's documents and communications.

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