UK Trends and Developments Contributed by: Steven Cochrane, Hannah Netherton, Anna Cope and Gillian MacLellan, CMS
purpose and values, with boards increasingly attuned to the governance, supervisory and reputational con - sequences of flawed internal processes. One issue that regularly arises in the area of external appoint - ments (particularly where lawyers are carrying out a third-party external review) is whether that lawyer can or should also provide privileged legal advice in relation to the legal risks at the heart of the matter. This is a complex and fact-specific issue, but a gen - eral observation is that the optics of having the same individual conduct an external investigation while also providing strategic and legally privileged advice on the legal risks at play can, in certain circumstances, be problematic. It is now generally accepted that these roles should be separated, rather than requiring the same lawyer to wear two hats. Practitioner investiga - tors are also increasingly mindful of their professional obligations in this context, including the need to pre - serve independence and manage conflicts in accord - ance with the SRA’s guidance on investigations. Can Legal Professional Privilege Apply in Workplace Investigations? As the trend for engaging external lawyers as inves - tigators has accelerated, an important question that arises is whether the investigation can or should be protected by legal professional privilege. Legal pro - fessional privilege in the UK covers: (i) legal advice privilege; and (ii) litigation privilege. Workplace inves - tigations can, in some circumstances, be covered by legal professional privilege, although establishing and maintaining privilege over the various aspects of a workplace investigation (such as interview notes, documents and the report itself) can be challenging in practice. Certainly, legal advice privilege is arguably unlikely to attach to all documents produced, created or collated as part of an investigation and it can also be lost where documents are shared too widely or outside of the client group. Where a business wants to assert privilege over an investigation, it is important to decide this at the out - set and then to proceed in a carefully structured way. This will often include putting in place written terms of reference and information-sharing protocols. For example, documents should be clearly marked as “Privileged and Confidential” and access should be restricted to those within the client group. In order to
be covered by privilege, interview notes should not simply record the matters discussed – they will also need to include an element of legal advice, such as an assessment of the evidence. A business should restrict and define its client group for the purposes of an investigation – that is those who are giving instructions and receiving legal advice. The details of the client group should be reflected in the lawyer’s retainer terms. The client group should take care to keep all investigation-related communications confidential and not forward emails or documents to those outside the client group to ensure that privilege is maintained. One of the main drawbacks of a privileged investi - gation is a lack of transparency, and that has led to a number of investigations being carried out on an “open” (ie, non-privileged) basis even where lawyers are engaged as investigators. Otherwise, other steps such as limited waivers of privilege, for example shar - ing a summary of the outcome of the investigation and/or sharing documents with a regulator for a lim - ited and specific purpose and on a confidential basis, can help to assuage transparency concerns. Any such limited waivers should be carefully structured to manage the risk of inadvertent waiver of privilege over those documents or indeed other privileged material. The position will be more complex for businesses with international operations where the application of privi - lege may vary depending on the location involved and locus of any likely dispute. The Rise of “Maxwellisation” in Investigations Requests for “Maxwellisation” are increasingly filtering from UK public law settings into workplace investi - gations. Maxwellisation refers to the process of giv - ing individuals who may be subject to criticism in an investigation report advance notice of the relevant findings and an opportunity to respond before the report is finalised. There are some clear benefits to Maxwellisation. In particular, it allows investigators to check the accura - cy of their findings and ensures procedural fairness by reducing the risk of unfair, inaccurate or unbalanced conclusions. This can be particularly important where
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