SAMPLE LETTER--NOT INTENDED AS LEGAL ADVICE
April 5, 1997
Re: Conduct of Internal Investigation
I thought it would be helpful if I put in writing some matters relating to the conduct of our investigation.
[The client] is conducting an internal investigation into various matters that have arisen in connection with or as a result of certain statements or acts of [subjects]. This investigation is being conducted at the direction of [officer or board of directors], under my supervision and control as legal counsel to [client], and in contemplation of possible future litigation. Accordingly, some or all of the written materials and communications related to the investigation may be protected from future disclosure to parties adverse to Intercal by attorney-client privilege, the attorney work-product rules, or both.
Communications between me and an agent of the company may be subject to attorney-client privilege. This privilege is, in some respects, narrower than work product protection. However, it is absolute: if it exists and is not waived, an adverse party cannot get the substance of the communication no matter how great its alleged need for the information. In order to avoid waiving the privilege, the privileged communication must not be disclosed to anyone other than the attorney and the client. In the case of a corporation like [the client], this means that only the corporate agents responsible for seeking advice from me--the two of you--should be privy to our communications.
Second, communications between us, like this letter, should be segregated from other material that may not be privileged or whose attorney-client privilege may later be waived, like the outline of questions that I have enclosed.
Other material that is developed in the investigation, because it is being done by me or under my supervision as [client's] lawyer, may enjoy limited protection as attorney's work product. Examples would be your notes of interviews. This information could be obtained later in litigation by order of a judge under certain circumstances.
In order to maintain these privileges, it would be helpful if you segregate any notes or other documents that you generate in the course of this investigation in a separate file. Mark each document that was prepared specifically for my review "Privileged and confidential communication for legal counsel only." Keep communications to me separate from other material, such as your notes, that may enjoy only work product protection.
We should do our best to maintain all applicable privileges. However, it is best to assume that there is some possibility that anything that you write down will eventually fall into the hands of any eventual opponents. Therefore, it is important to make records only of matters that are necessary and pertinent. Please do not record your mental impressions, guesses, opinions, conclusions, and so on.
The goal of the investigation is to conduct a fair, thorough, and expeditious investigation of all complaints made by either [of the subjects], to determine whether either of them has been guilty of any misconduct related to their relationship with [the client], and to determine any additional facts that may be relevant to your determination of what action is necessary or desirable with respect to the employment of [subject 1] or your contract with [subject 2].
In order to respect the privacy of the parties, and to ensure a timely completion of the investigation, it is important to attempt to avoid straying from issues that are relevant to these goals. In particular, we should avoid any unnecessary inquiry into anyone's religious beliefs or theories, private sexual practices or activities, or other personal business. We should make our desire to avoid unnecessary prying clear to the witnesses who are interviewed and try to keep our interviews focused on the issues. Because of the nature of the issues that have been raised, this will require tact and judgment.
You should both be present for each interview. [one person] should conduct the interview and [the other] should take careful notes, which should not be shown to anyone but [authorized persons] and myself. In order to avoid the appearance of ganging up on the interviewee, [the note taker] should not ask questions. If [the note taker] thinks of a question that should be asked, she should make a note of it and discuss it with [the questioner] during a break.
If a witness expresses a desire to leave, or declines to answer certain questions, you should tell him that, while you cannot require him to cooperate, to the extent that he does not cooperate you may be forced to make whatever decisions are necessary without the information that you are unable to obtain from him. If the witness wants to take a short break, you should of course comply. It is important to be polite and tactful, regardless of any provocation, so that the interview process itself does not become part of someone's complaint.
In an investigation like this, there is a danger of making yourself subject to a claim for defamation. Therefore, it is important not to repeat charges that may have been made against a person or unfavorable facts about him to anyone other than the person himself. If you're interviewing a witness about the possible misconduct of another person, just find out what the witness knows, don't repeat what you may have learned from another source.
The outline of questions for [the witness] that I have enclosed should not be taken as exhaustive. You will have to follow up on the answers and pursue any relevant further lines of inquiry that become apparent. When you ask about documents, show them to her, then mark the copies that you used so that we will have a record of what you showed her. In addition, after you review these questions, let me know if you have any questions, additions, or suggestions related to them. Please try to let me know ahead of time when you will be conducting each interview so that I can try to be available by telephone in case any questions or problems come up while it is going on.
I think you should probably interview [the first witness] first. Then, when I find out what she said, I can prepare an outline of questions for [the second witness]. Try to be alert to any indications of other possible witnesses who can be interviewed.
Please call me if you have any questions.
Very truly yours,
DISCLAIMER: The foregoing document is part of an educational
It is not intended as legal advice and should not be relied upon. You
advised to consult counsel before adopting any of the ideas or
in this material, which may or may not be applicable to your specific
SAMPLE DOCUMENT--NOT INTENDED AS LEGAL ADVICE
CONFIDENTIAL AND PRIVILEGED COMMUNICATION FROM ATTORNEY TO CLIENT
DO NOT DISCLOSE TO OTHER THAN ---
Suggestions for Exit Interview with ---
c. failure to follow instructions
d. reduction in force
e. other reasons
If anything unanticipated or troublesome comes up, or the employee
you or a fellow employee of some kind of improper behavior, such as
discrimination or harassment, please postpone any response until you
had a chance to carefully consider the information, perhaps in
with your lawyer.
DISCLAIMER: I have entered government service and, as of September 1, 2008, am no longer engaged in the private practice of law. Therefore, this site is no longer being maintained, may not be accurate, and should not be relied upon. It is not now and was not ever intended as legal advice. It is being provided for historical purposes, and for the benefit of those lawyers who are capable of independently verifying the information and judging the opinions in it, and then reaching their own conclusions. You are strongly advised to consult qualified legal counsel before adopting any of the ideas or suggestions in this material, which may or may not be applicable in your jurisdiction or to your specific situation, and may no longer be accurate or prudent in any case. The opinions and statements at this site were solely my own. They were not and are not those of, nor were they nor are they made on behalf of, any agency of government or anyone else.