Should a company itself investigate or engage an outside investigator? Attorney-client privilege protects company internal investigations.

Each company should have a robust anti-discrimination, anti-harassment policy in its handbook. The policy is insufficient unless it outlines a method for employees to report discrimination and harassment that violates the company policy. But employers are often stumped with how to handle the situation when an employee does blow the whistle and make such an allegation. Should the company itself investigate or engage an outside investigator?

Many companies engage their attorney to conduct these internal investigations. The attorney will often take the following investigative actions:

  • Interview the complainant, witnesses, supervisors, and managers
  • Review company records, including employee files and performance reviews, and
  • Evaluate employee write-ups

The attorney is seeking to discover whether discrimination or harassment occurred, as well as whether there has been any retaliation against the complainant. But what are the advantages to using an attorney through this process?

  • An attorney providing legal analysis provides attorney-client privilege
  • The attorney acts as a neutral third party who is not part of the culture of the employees

Recently, the first advantage, the attorney-client privilege, has come under fire. In In re Kellogg Brown & Root, Inc., No. 14-5055 (D.C. Cir. 2014) the D.C. Circuit Court of Appeals held that the attorney-client privilege protected documents created during an attorney compliance investigation after an employee became a qui tam relator (a whistleblower in a federal case). The D.C. Circuit Court of Appeals’ decision preserves the incentive for companies to support vigorous compliance programs. In addition, it persuades companies to engage attorneys to conduct in-depth examinations without worry that the results of the investigation will land a company already in hot water in a boiling pot. This allows companies to find out exactly what has been going on so that they may take immediate and corrective action.

For more information about employment law, and how attorney-client privilege protects company internal investigations, contact the Goosmann Law Firm at or call 712-226-4000.

Subscribe Our Blog

DISCLAIMER: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. By visiting this website, blog, or post you understand that there is no attorney client relationship between you and the Goosmann Law Firm attorneys and website publisher. No information contained in this post should be construed as legal advice from Goosmann Law Firm, PLC, or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.