The Massachusetts Superior Court recently ruled that the records obtained during an independent investigation at the Massachusetts Institute of Technology (‘MIT’) were not shielded from disclosure by the right of the attorney-client in a subsequent case brought against MIT. Timothy J. Carpenter, Administrator v. Massachusetts Institute of Technology, Suffolk Supreme Court of Civil Action No. 03-2660 (Amended Memorandum and Order May 19, 2005).
In Carpenter, the student estate brought a suit against MIT and others after the student’s suicide while at MIT. During the course of this action, MIT asserted the right of the attorney-client with respect to certain documents generated during its internal investigation of the student’s suicide. The Superior Court held that these records were not covered by the right of the attorney-client, even though the investigation was carried out under the supervision of the MIT lawyers.
First, MIT gave its investigator, the Dean of Duke University, full autonomy to perform her investigation and prepare her report as she saw fit. The Superior Court therefore ruled that the investigator was not an employee of MIT and that all correspondence between MIT and MIT lawyers were not entitled to the right of the attorney-client. Second, the correspondence between MIT’s lawyers and the prosecutor consisted of suggested grammatical and stylistic changes to its study and thus did not, according to the Court, constitute legal advice. Third, for reasons of justice, the Superior Court ruled that MIT had waived the right of the attorney-client, because the parents of the student had fairly relied on the MIT and the investigator’s counsel to the effect that the inquiry was completely independent of MIT, and the parents had agreed to talk to the investigator on that basis.
The decision of the Court in Carpenter acts as a valuable reminder that considerable caution must be taken when performing an internal investigation in order to protect the process of such an investigation from being exposed during subsequent litigation. Customers are cautioned that correspondence between their attorneys and an outside person hired by the client to conduct an independent investigation are unlikely to be shielded from disclosure by the right of the attorney-client if the client does not maintain power over that individual and in the course of the investigation. In addition, clients should be careful to make statements to those who cooperate with the investigation about the investigation process and/or the impartial status of their investigator. At the end of the day, clients and attorneys should note that not all correspondence to and from a lawyer are covered by the right of a lawyer-client, and that the privilege extends only when legal advice is requested from a licensed legal counsel working in that capacity.
The following measures are recommended in order to maximize the opportunities for the outcome of an internal investigation by granting the right of attorney-client protections:
Remember in writing that an internal investigation is being undertaken to obtain legal counsel details so that such counsel can provide legal advice to the client.
To the degree that a non-lawyer is involved in the investigation, record in writing that the actions of that individual are subject to the supervision of the lawyer and that the individual is working to assist the legal counsel in collecting information so that the lawyer can provide legal advice to the client.
Label all substantive correspondence and records related to an internal investigation as “Privileged and Confidential: Attorney-Client/Work Product.”
Draft interview notes indicative of mental experiences and possible legal theories; avoid verbatim transcripts of interviews.
Limit access to investigative findings and material on a strict need-to-know basis to avoid the right of the attorney-client.
Draft investigative papers and reports with some circumspection, keeping in mind that their confidentiality under the protection of the attorney-client can never be entirely guaranteed.
Limit access to investigative findings and material on a strict need-to-know basis to avoid the right of the attorney-client.
Draft investigative papers and reports with some circumspection, keeping in mind that their confidentiality under the protection of the attorney-client can never be entirely guaranteed.