Attorneys Conducting Workplace Investigations: Navigating the Perils of Privilege

Register by February 14, 2012 to View Live February 14, 2012 1-2:30 pm and/or Recorded Through December 31, 2012Co-Sponsored by the State Bar of California Labor & Employment Law Section. 1.5 Hours MCLE Credit Approved. HRCI Credit Pending.

Presented by Lindsay Harris and Mark Tuft

Privilege issues loom large in internal investigations, yet all too often investigators and company counsel misunderstand this complex area of law. Through a series of dynamic hypotheticals, this Webinar will examine the key privilege issues affecting workplace investigations, with reference to the California Rules of Professional Conduct, the ABA Model Rules, federal and state rules of evidence, and leading court decisions. Co-sponsored by State Bar of California Labor & Employment Section.
AWI Members Register $100

CA State Bar L&E Section $125 

Non-Members Register $150

The Webinar will include a power point presentation covering the following topics:

Elements of the attorney-client privilege under state and federal law   

Elements of the work product privilege under each          

Factors to consider in determining whether an investigation should be privileged and the role of the attorney-investigator in making the decision 

Are factual investigations subject to the attorney-client privilege? 

• What happens if one lawyer conducts the investigation and another lawyer renders legal advice to the client?
• What steps should be taken to create and maintain the privilege in conducting the investigation?
• What steps should be taken to preserve the privilege concerning communications between the lawyer rendering legal advice and the client? 

Privilege implications of conducting and memorializing witness interviews and reporting the results of a workplace investigation (e.g., notes vs. witness statements vs. recordings)

Privilege issue in interviewing officers and directors, supervisors and department heads, consultants and former employees

Privilege issues following the investigation:

• Steps that should be taken to avoid inadvertent waiver of the privilege
• The attorney-investigator as a witness
• The ability of the attorney-investigator to defend against third party claims

Privilege and ethical consideration where:

• Employees are represented by separate counsel
• Employees use company computers and other resources to communicate with their individual counsel

Specific ethics and other rules to be discussed include the following:

California Business and Professions Code section 6068(e) and (m)

California Evidence Code sections 250, 911-919, 950-958, 962

Federal Rules of Evidence 501, 502

California Rules of Professional Conduct 1-100, 2-100, 3-100, 3-110, 3-310, 3-400, 3-500, 3-600, 3-700, 5-210, 5-220

ABA Model Rules 1.2, 1.4, 1.6, 1.8(b), 1.8(f), 1.8(h), 1.9, 1.10, 1.13, 1.16, 2.3, 2.4, 3.7, 4.1, 4.2, 4.3, 4.4

Lindsay Harris brings considerable employment law and investigative experience to her current practice focused on conducting independent investigations of suspected workplace misconduct.  Clients frequently turn to Ms. Harris for independent investigations involving high-level, complex, and sensitive matters.
 
Among other employment-law related claims, Ms. Harris has examined allegations of discrimination, retaliation, harassment, ethical breaches, and abusive management. Ms. Harris has examined suspected misconduct at various levels of an organization, including allegations affecting senior and executive management, and her clients have included Fortune 500 companies across a variety of industries, and public-sector organizations.
 
As an active member of California’s attorney-investigator community, Ms. Harris has played a leading role in raising awareness and educating attorneys and their clients on the particular ethics issues affecting independent attorney-investigators, and she currently serves as Co-chair of CAOWI’s Ethics Committee.
 
Ms. Harris formerly practiced employment law at the international law firm of Morrison & Foerster, where her work encompassed a wide range of employment law-related matters. A graduate of Harvard College and Stanford Law School, Ms. Harris is a member of the Bar Association of San Francisco and the State Bar of California.

Mark L. Tuft is a litigation partner with Cooper, White & Cooper LLP in San Francisco. He serves as outside counsel to lawyers and law firms on professional responsibility, professional liability, law firm mergers and dissolutions and State Bar disciplinary matters. He also acts as an expert witness and consultant in these matters.
 
His trial practice includes legal malpractice defense, media law and related first amendment litigation, and defense of individuals and businesses in criminal matters. He is also an arbitrator and mediator in lawyer-client and law firm disputes. Mr. Tuft is a co-author of The California Practice Guide on Professional Responsibility (The Rutter Group, a division of West, a Thompson Reuters business, 2009). Mr. Tuft obtained his J.D. degree with honors from Hastings College of the Law in 1968. He also received an LL.M. degree with highest honors from George Washington University in 1972.
 
Mr. Tuft is a vice-chair of the California State Bar Commission on the revision of the rules of professional conduct. He is a former chair and special advisor to the California State Bar Committee on Professional Responsibility and Conduct and has served as a member of several State Bar task forces on professional responsibility. Mr. Tuft is an adjunct professor at the University of San Francisco School of Law and is a member of the American Law Institute.
 
He is a past-chair of the Bar Association of San Francisco Legal Ethics Committee, a former member of the Bar Association of San Francisco Board of Directors and is a recipient of that Bar Association’s award of merit. He is currently a member of the ABA Center on Professional Responsibility and its editorial board and serves as the Treasurer of the Association of Professional Responsibility Lawyers.
 
Mr. Tuft is a frequent lecturer and writer on professional responsibility issues and has received several teaching awards.