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Mark Sweet Discusses Attorney-Client Privilege for Internal Investigations

Law360
March 12, 2014

Mark B. Sweet, a partner in Wiley Rein’s White Collar Defense & Government Investigations Practice, commented in a March 11 Law360 article on the implications of a recent judicial order that limited attorney-client privilege for internal investigations.

According to the article, a federal judge in Washington has ordered KBR Inc. to turn over documents related to an internal fraud investigation to a whistleblower who has accused the company of violating the False Claims Act.  KBR’s argument that the information was protected by attorney-client privilege failed to persuade the judge, who actually published excerpts of the reports in his decision.  The ruling could make it more difficult for regulated companies to keep internal investigations private. 

Mr. Sweet—co-chair of the Communications Enforcement & Compliance Practice—said that “an attorney needs to be involved at every step of an investigation, and everyone involved should be told explicitly that the inquiry is designed to obtain legal advice.”  Furthermore, he said the ruling could dissuade contractors from thoroughly documenting internal investigations.

“Internal investigation and documentation are hallmarks of a robust compliance program,” Mr. Sweet told Law360.  “Unfortunately, this is the type of decision that could make companies reluctant to implement such programs.”

Click here to read the entire Law360 article.