Attorney-Client privilege in internal sexual harassment investigations

Here's an interesting case out of the Southern District of New York, dealing with attorney-client privilege in internal investigations. The case is Barbini v. First Niagara Bank (HT: The Legal Intelligencer, Ruling Highlights Narrow Path in Defending Sexual Harassment Complaints).

The plaintiffs claimed that they complained about sexual harassment, and then their employer merely warned the harasser while firing them. The employer claims it fired them for notary law violations.

Not official use.

Not surprisingly, the employer consulted with its in-house counsel on the harassment issue and the notary issues. Is that protected by attorney-client privilege? The Court says, yes. While recognizing the dual-role that in-house counsel sometimes serves (attorney and business consultant), the Court held:

Communicating legal analysis to the person ultimately deciding whether to fire and employee is precisely the type of legal advice that is protected by the attorney-client privilege. (internal citations and quotations omitted). 

But wait, there's more!

Here, however, the Court also concluded that the employer waived the privilege. How? The employer did not directly raise an "advice of counsel" defense - but it did raise the Faragher/Ellerth defense.* Deposition testimony from an HR rep also established implied reliance of the advice of in-house counsel on the harassment and notary issues.

This goes straight to the heart of the employer's defense - that it looked into the harassment claims and concluded that termination was not necessary for the alleged harasser, and in reliance on advice from counsel concluded that the complainants/plaintiffs had violated New York notary laws. As the Court stated:

Defendants cannot have their cake and eat it too. There is virtually no way for any decisionmaker or adversary to assess the veracity of Defendants’ defense if the documents and conversations related to both investigations are concealed.

Frankly, I'm not sure that every court would reach this same conclusion. This case serves as a cautionary tale though - attorney-client communications (even legal advice) will not always be protected by a court. Particularly, privilege may be waived where the employer attempts to rely on the advice and investigation of its counsel as a defense.

* The Faragher/Ellert defense is an affirmative defense requiring employers to establish "(1) the employer exercised reasonable care to prevent and correct any-harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided."