ABA Model Rule 1.13; Internal investigations; Garner v. Wolfinbarger; Crime-Fraud Exception to Attorney-Client Privilege

1. The Law of
Whistleblowing
Washington University – Fall 2014
class # 4

2. Instruction Sheet –
Internal Investigations
Is it
consistent
with
Model Rule
1.13(f)
?

3. Internal Investigation – Instructions
“My name is ______________. As you may be
aware, the Inspector General of the
___________ Department is investigating the
activities of the Company. We represent the
company and are conducting our own review
and investigation of this matter. The company
has requested that all of its employees
cooperate fully and completely in our efforts,
and we trust that you will be forthcoming and
truthful in your responses. . . .

4. . . . Although we do not represent you
personally, what you tell us today is privileged
from disclosure outside the Company. However,
the Company determine, in its own discretion,
to advise government agencies and investigators
or others outside the Company of the results of
our work. The decision of whether to disclose
this information will be made solely by the
Company. If you believe it is necessary, you are
free to retain your own lawyer. . . .
Do you understand this?”

5. Garner v. Wolfinbarger - 5th Cir. 1970
derivative action
corporate lawyer’s testimony
corporation claimed A-C privilege
shareholders = beneficiaries
if C = fiduciary -> A-C privilege is qualified

6. Crime-Fraud Exception to AC Priv
1 - ongoing or future – not past – crimes / frauds
2 - client's intent to commit a crime / fraud
3 - client's intent (lawyer’s knowledge irrelevant)
4 - party trying to pierce priv has burden

7. Crime-Fraud Exception to AC Priv
1 - ongoing or future – not past – crimes / frauds
2 - client's intent to commit a crime / fraud
3 - client's intent (lawyer’s knowledge irrelevant)
4 - party trying to pierce priv has burden

8. Crime-Fraud Exception to AC Priv
1 - ongoing or future – not past – crimes / frauds
2 - client's intent to commit a crime / fraud
3 - client's intent (lawyer’s knowledge irrelevant)
4 - party trying to pierce priv has burden

9. Crime-Fraud Exception to AC Priv
1 - ongoing or future – not past – crimes / frauds
2 - client's intent to commit a crime / fraud
3 - client's intent – not lawyer’s knowledge
4 - party trying to pierce priv has burden

10. Crime-Fraud Exception to AC Priv
1 - ongoing or future – not past – crimes / frauds
2 - client's intent to commit a crime / fraud
3 - client's intent – not lawyer’s knowledge
4 - party trying to pierce priv has burden

11. Crime-Fraud Exception to AC Priv
1 - ongoing or future – not past – crimes / frauds
2 - client's intent to commit a crime / fraud
3 - client's intent – not lawyer’s knowledge
4 - party trying to pierce priv has burden