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ACC Challenges Latest Attack on In-house Counsel Privilege Protection in Kellogg Brown & Root Whistleblower Case
Amicus Filing Examines Confidentiality of Lawyer-Led Internal Investigations

Posted: Mar 20, 2014

WASHINGTON (March 20, 2014) — The Association of Corporate Counsel (ACC), a global bar association representing more than 33,000 in-house counsel in 85 countries, joined organizations representing the business community in an amicus curiae brief filed with the United States Court of Appeals for the D.C. Circuit late yesterday in In re Kellogg Brown & Root, Inc. et al. The brief challenges a district court order forcing disclosure of confidential communications with corporate counsel at government contractor Kellogg Brown & Root (KBR).

ACC joins the United States Chamber of Commerce, National Association of Manufacturers and Coalition on Government Procurement, among others, in an amicus brief in support of a petition for writ of mandamus in the whistleblower case. On March 6, the district court ordered the disclosure of 89 documents prepared between KBR employees and the company's in-house counsel. The court held that the documents were not prepared solely for the purpose of seeking legal advice, but rather to satisfy regulatory requirements and as a matter of corporate policy.

However, in the brief, ACC and the coalition argue that the district court should have examined whether seeking legal advice was a primary or significant reason for the communication collected during KBR internal fraud investigations, rather than the sole motivation.

"The DC Circuit should reaffirm that internal investigations do not lose privilege protection merely because in-house lawyers and the government had the foresight to design and require compliance systems," said Amar D. Sarwal, ACC vice president and chief legal strategist. "In-house lawyers regularly implement corporate codes of conduct to achieve compliance with the law, not to waive the protections afforded by attorney-client privilege."

In its March 11 order denying a stay or immediate appeal of its decision, the district court suggested that the issue before the court was not novel or important. Yet, according to ACC and the coalition, businesses of every size conduct internal investigations that would be adversely affected by this decision. The brief goes on to state that courts around the country, including the DC Circuit, have applied a far more sensible rule than the district court did in this case.

"The district court's decision sets a dangerous precedent for a broad swath of businesses," Sarwal stated. "Not only does the district court's decision apply the wrong attorney-client privilege rule to this case, but it also fails to recognize the sea change that would occur in legal practice if its misguided approach survives appeal."

To read the amicus brief, please visit http://www.acc.com/advocacy/upload/In-re-KBR-031914.pdf.

About ACC: The Association of Corporate Counsel (ACC) is a global bar association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other private-sector organizations through information, education, networking opportunities and advocacy initiatives. With more than 33,000 members in 85 countries, employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on Twitter: @ACCinhouse.

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