An experienced attorney focused on matters of corporate law, Dorianne Van Dyke is a graduate of NYU and New York Law School. Outside of work, she enjoys running, reading historical fiction, and watching documentaries.
It is both a well-known fact and timeless tradition that regardless of my good intentions, I never complete my CLE credits until the 11th hour of the given registration period. As my registration deadline is close to Christmas, I often spend the holiday season listening to CLE programs while working from home, manically searching for whatever topic yields the most credits rather than focusing on topics of interest. I’m no family law attorney but you better believe I will be learning all about divorce and mediation if I can get 6 credits! Seeking to avoid the last-minute scramble and capitalizing on the fact that I can go nowhere in this pandemic, I have started early. A year early, to be exact. Rather than drive myself to the brink of insanity in December 2021, I turned my attention now to my arch nemesis: ethic credits.
I’m not sure why I am so resistant to ethics and skills programming. As a member of the Practising Law Institute (“PLI”, if your nasty), I have enjoyed almost every program I have ever listened to or attended. Nothing has been so painful that I simply could not get through it and I always come away from the sixty minutes or so having learned more than I thought possible. This recent ethics excursion would be no exception. Yesterday, I committed an hour and some change to “Conducting an Internal Investigation” and I do not regret it.
To be honest, I didn’t really know what to expect from this particular CLE segment. My only concern was that I would make it through the entire hour to get my coveted 1.5 credits. My expectations were exceeded. The whole program revolved around a hypothetical that allowed the panelists to dissect the situation and provide best practices and tips to attorneys who might find themselves in these types of situations. A few interesting points below:
1. One thing that was demystified for me was the difference between attorney work product and attorney client privilege. Attorney client privilege governs communications between the attorney and client while the work product exception protects the work product of an attorney related to a specific manner in anticipation of litigation. You laugh as this seems obvious but some of us needed it spelled out! Having never been a litigator, these concepts tend to fuse in my mind. Attorney client privilege carries more weight and in the context of an internal investigation, a claim of the work product exception will likely be probed more extensively.
2. Another topic that was touched upon was when one should engage counsel or tech experts in fact finding during an internal investigation. The answer was surprising to me. Ideally, you do not want to bring outside counsel into investigations in the early fact-finding stage as it may be viewed as contentious. As an attorney, I always want approximately 56 other attorneys involved in every situation from preplanning to post-implementation. Apparently, this isn’t always so smart.
3. Document hold notices and preservation requests. I had never even heard of this let alone considered that there were best practices. Well, apparently any hold notice should be in writing, as detailed in possible and widely disseminated. Prior to circulating, you should also take steps to safeguard the hold notice from being shared broadly aka let peeps know not to share. You have to provide enough notice to ensure that you will actually be preserving what you are seeking to preserve and you can of course ask employees to keep things confidential. Any notice should include information related to how employees should conduct themselves particularly if contacted by a third party. That being said, you cannot forbid anyone from speaking to a third party even if you would prefer them come to you first. Preservation requests must be broadly distributed and should not include information that a person who not be expected to have access to.
Now I’m not saying I am going to listen to another four CLE programs on internal investigations but I am saying that I enjoyed the one I listened to. I learned something. Having spent over 10 years as an attorney, I tend to learn something new every day but that new thing usually lies within the sphere or technology or intellectual property. While not something I will likely encounter in my professional life, I appreciated the content none the less. Now if you will excuse me…I have some more ethics credits to fulfill.