Blog
Asserting the Attorney-Client Privilege in FTC Interviews
Contents
Asserting Attorney-Client Privilege in FTC Interviews
When a company finds itself the subject of an FTC investigation, one of the most important privileges it can assert is attorney-client privilege. This allows confidential communications between attorney and client to remain private. But knowing when and how to properly assert this privilege can be tricky.
Let’s break down the basics of attorney-client privilege, when it applies in FTC interviews, and how to make sure you don’t accidentally waive it.
What is Attorney-Client Privilege?
Attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining legal advice. The idea is that clients should be able to speak openly with their lawyers without worrying that what they say can be used against them later. For the privilege to apply, a few conditions must be met:
- The communication must be between attorney and client
- The communication must be confidential
- The purpose of the communication must be to obtain or provide legal advice
If these conditions are satisfied, neither the attorney nor the client can be compelled to disclose the contents of their communications in court. This allows clients to be fully open and honest with their lawyers when seeking legal counsel.
How Does It Apply in FTC Interviews?
During an FTC investigation, investigators will likely want to interview employees of the company. This is where things can get tricky with respect to attorney-client privilege.
First, it’s important to understand that the privilege belongs to the client – in this case, the company. So if an employee communicates with the company’s attorneys for the purpose of obtaining legal advice for the company, those communications are privileged.
However, not all communications between employees and attorneys are privileged. The communication must meet the above requirements – simply being an employee does not automatically make the conversation privileged.
For example, if an employee provides factual information to the attorney that is not for the purpose of seeking legal advice, that communication would likely not be protected. The employee would have to testify about that conversation if asked by FTC investigators.
Avoiding Waiver of the Privilege
It’s not enough to simply assert attorney-client privilege. You have to take steps to avoid accidentally waiving the privilege and losing its protection.
One way privilege can be waived is by disclosing the contents of an otherwise privileged communication to a third party. For example, if an employee discusses a conversation with an attorney when being interviewed by FTC investigators, the employee has waived the privilege over that communication.
Another potential area of waiver is work product given to attorneys that is not created for the purpose of seeking legal advice. For example, business documents given to an attorney that were not prepared by the client to obtain legal counsel would likely not be protected.
To avoid waiver, train employees to spot potential privileged communications and to assert the privilege properly during interviews. Tell employees not to discuss conversations with counsel or disclose attorney work product.
Have the company’s attorney present at all employee interviews to watch for privileged matters. If something does come up, the attorney can object and instruct the employee not to answer to avoid waiving the privilege.
Best Practices for Asserting the Privilege
Here are some best practices when asserting attorney-client privilege during FTC interviews:
- Claim privilege clearly – say “objection, this communication is protected by attorney-client privilege.”
- Provide only the fact that a communication occurred, not any details about its content.
- If privileged work product exists, acknowledge its existence but do not describe it or produce it.
- Get written confirmation that you asserted the privilege and the interviewer will respect it.
With proper preparation, companies can successfully keep privileged communications confidential during FTC interviews. Training employees on privilege rules and having counsel present will help head off accidental waiver.
Asserting privilege does not prevent employees from providing factual information the FTC requests. But it does allow clients to have candid discussions with counsel to get the best legal advice possible.
References
Here are some helpful resources on attorney-client privilege in FTC investigations: