Attorney-Client Privilege In Workplace Investigation
In California, workplace investigations conducted by licensed attorneys may qualify for attorney-client privilege and work product protection when the investigation is carried out for the purpose of providing legal services.
Courts focus on the dominant purpose of the relationship between the employer and the investigator. As confirmed in City of Petaluma v. Superior Court, a factual investigation conducted by an attorney can be privileged, even where the attorney is not offering specific legal advice, so long as the investigation supports legal strategy or anticipated litigation. In that case, the court held that the city’s retention of outside counsel to conduct a neutral investigation — explicitly framed as an attorney-client engagement — was sufficient to invoke both attorney-client privilege and the work product doctrine.
However, confidentiality is not absolute. An employer may waive privilege by relying on the investigation to defend against claims — for example, asserting the “avoidable consequences” defense and arguing the adequacy of their response to an internal complaint. Additionally, employers must be mindful of limits placed on broad confidentiality instructions, particularly post-Stericycle, where overly restrictive confidentiality mandates during investigations may violate employees’ rights under labor laws. At Veritas, we understand these legal contours and approach every investigation with both diligence and discretion, ensuring legal compliance while protecting sensitive communications to the fullest extent permitted under California law.
