This appeal presents significant questions regarding the ability of organizations – including universities, corporations, non-profit associations, etc. – to conduct internal investigations into alleged employee misconduct. Corporations and other organizations depend on internal investigations to identify and address allegations of wrongdoing and to ensure compliance with complex laws and regulatory obligations. The court’s narrow view regarding when an internal investigation is conducted for a legal purpose, as well as its expansive approach toward subject-matter waiver, threaten to significantly impair the ability of counsel – both in-house and outside attorneys – to investigate alleged employee wrongdoing, provide the legal advice necessary to guide their clients’ behavior and promote compliance with the law. The court’s holdings that clients lack standing to assert attorney work product claims and that work product must be prepared in anticipation of specific litigation similarly threaten to undermine the important purposes served by the work product doctrine. Accordingly, ACC respectfully urged the Pennsylvania Superior Court to reverse the decision below and make clear that confidential communications between organizational clients and their attorneys in the course of internal investigations are fully protected by the attorney-client privilege and the work product doctrine in the Commonwealth.
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