According to the Anti-Money Laundering Specialist (the 6th edition) study guide, one of the best practices for conducting an internal investigation is to request formal company authorization to conduct the investigation. Such authorization should be granted, if possible, by the board of directors or audit committee, as this will help to establish the independence and legitimacy of the investigation, as well as the protection of the attorney-client privilege and the work product doctrine1. The other options are incorrect because:
B. Refusing to provide any records or documents to law enforcement may be seen as obstructing justice or violating regulatory obligations, and may also result in the loss of the privilege or the imposition of sanctions or penalties23.
C. Letting the bank hire any and all contract investigators may compromise the quality and integrity of the investigation, as well as the protection of the privilege or the work product doctrine, as the investigators may not be properly supervised or instructed by legal counsel, or may not be covered by the Kovel doctrine45.
D. Not marking files or documents with privileged and confidential: attorney-client privilege and/or work-product may undermine the claim of the privilege or the work product doctrine, as it may indicate that the materials were not prepared for the purpose of seeking or providing legal advice or in anticipation of litigation, or that they were not intended to be kept confidential67.
1: ACAMS, CAMS Certification Package - 6th Edition, Chapter 5, page 150
2: ACAMS, CAMS Certification Package - 6th Edition, Chapter 5, page 151
3: Perkins Coie, Protecting Internal Investigation Materials From Disclosure, Updates, August 10, 2020
4: ACAMS, CAMS Certification Package - 6th Edition, Chapter 5, page 150
5: Eversheds Sutherland, Legal privilege of corporate internal investigations under US law - 2019 caselaw update, JDSupra, December 20, 2019
6: ACAMS, CAMS Certification Package - 6th Edition, Chapter 5, page 150
7: Norton Rose Fulbright, Internal investigations: when does privilege apply?, Global law firm, September 11, 2018
