The Association of Corporate Counsel (ACC) has called for the protection of privileged communications related to internal investigations. It has filed an amicus curiae brief in the Superior Court of Pennsylvania urging the state to reverse a trial court’s decision to disclose privileged communications obtained during Pennsylvania State University’s internal investigation into the alleged misconduct of then football coach Jerry Sandusky. If the decision was not reversed, the association says it would hinder a company’s decision to manage its litigation exposure and seek legal advice. 

Not protected

In November, the Court of Common Pleas of Centre County, Pennsylvania ruled in Estate of Joseph Paterno v. National Collegiate Athletic Association (NCAA) that the investigation into the Sandusky allegations by the law firm of former FBI director Louis Freeh was not protected by attorney-client privilege despite the fact that the firm was retained by Penn State to investigate allegations against Sandusky.'The lower court’s erroneous decision places the attorney-client privilege and work product protection in jeopardy for scores of internal investigations performed by counsel to detect and root out illegal conduct,” said Amar Sarwal, vice president and chief legal strategist at ACC. 'In addition, the lower court’s decision improperly punishes organisations for releasing the results of their internal investigations by stripping them of privilege protection for undisclosed communications.'

Robust privilege protections

In its brief, ACC states the need for robust privilege protections between an organisation’s employees and its in-house counsel, noting that corporations, universities and non-profits rely on candid communications to conduct internal investigations into alleged misconduct. ACC further contends that disclosure of protected communications would impact future investigations of alleged employee wrongdoings and that the lower court’s conclusion was 'manifestly wrong.'Like the United States Supreme Court, Pennsylvania courts have a long history of preserving the privilege from unnecessary erosion,' Mr Sarwal said. 'This Court should make clear that confidential communications between an organisation’s clients and its attorneys during the course of internal investigations are fully protected by attorney-client privilege and the work product doctrine in the Commonwealth.'

Ruling should be reversed

ACC urged the Superior Court of Pennsylvania to reverse the ruling in light of precedent established in Commonwealth v. Mrozek, In re Kellogg, Brown & Root and Upjohn Co v United States, all of which protect privileged communications related to internal investigations. The brief describes the significant uncertainty for corporations that would occur if the Court of Common Pleas’ decision is not reversed, as it would hinder a company’s decision to manage its litigation exposure and seek legal advice. In addition, the ACC brief explains that applying attorney-client privilege to internal investigations does not obstruct the “truth-finding” process. The ruling will affect organisations conducting internal investigations in Pennsylvania and have a ripple effect on companies throughout the US and globally.