Court Analyzes Privilege Ramifications of Lawyers Acting Investigators

August 9, 2000

Whenever lawyers act in a role other than as a legal advisor, they risk waiving the attorney-client privilege and even making themselves witnesses.

A recent decision by a federal court in New Jersey highlighted this danger. In Waugh v. Pathmark Stores, Inc., 191 F.R.D. 427, 433 (D.N.J. Apr. 4, 2000), a plaintiff in an employment discrimination case argued that the company’s lawyer had acted as an investigator and therefore was subject to being deposed. The court rejected this argument, noting that the lawyer had attended meetings about the discrimination claim—but only acted as a legal advisor and not as an investigator. The obvious inference is that the lawyer might have been subject to a deposition if he had acted as an investigator.

Lawyers who assist their corporate clients in uncovering and then analyzing facts should always be aware of the risks of their involvement in any role other than as a legal advisor.