1 00118601 Emerging themes 2019 A4 AW v31 combined - Page 11



EMERGING THEMES 2019
Practical tips to help maximise privilege in internal investigations

Document the initiation of the
investigation: create a memorandum
from the organisation to the law firm
conducting the investigation that
clearly instructs the firm to gather facts
and information so that the firm can
render legal advice in anticipation
that litigation is contemplated with
the regulating authority.

Maintain contemporaneous records:
the best evidence of what was
contemplated or foreseen, or why
certain steps or decisions were taken,
will always be contemporaneous
documents. Ensure that legal analysis
is contained in such documents.


Deputise every organisation employee:
working with the law firm to the extent
that an organisation employee will
assist the law firm in the investigation,
document that those employees will
now be reporting to that firm and not
up through their usual supervisory chain.
reate a central tracker: consider
C
creating a framework or central
document which can be maintained
throughout the investigation to record:
(a)the role of those involved in the
investigation;
(b)the purpose of any actions or steps
taken during the course of the
investigation; and
(c)the reasoning for decisions taken.
Establish a communication protocol:
adopt clear protocols for the creation,
management and communication of
documents related to the legal advice
being sought, to ensure that such
documents remain confidential
and privileged.
MUKUL CHAWLA QC
Chief Criminal
Counsel, London
In summary
Conducting internal investigations should be a
part of every organisation’s compliance program.
Conducting them in a privileged manner that
protects the information from third parties allows
an organisation to process and consider how best
to deal with issues. Following the best practises set
out above will assist you in protecting those
investigations to the largest extent possible.
CLARE REEVE
Senior Associate,
London
/11

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