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U.S. Justice Department headquarters in Washington.U.S. Justice Department headquarters in Washington. (Photo: Mike Scarcella/ALM)

As the Department of Justice (DOJ) continues its aggressive enforcement of the federal False Claims Act (FCA)—recovering $4.7 billion in FCA cases in FY 2016 alone, including $2.5 billion from the health care industry—it has perhaps never been more important for in-house attorneys to understand their role in conducting internal investigations. Central to the in-house lawyer’s duties in investigating a potential FCA violation is the protection of the company’s attorney-client privilege and any documents covered by the attorney work product doctrine. Sometimes, however, the duality of the in-house counsel job description—that is, as both a business advisor and legal counsel to the company—places the in-house attorney in a potentially precarious position with regard to ensuring that communications and documents relevant to an FCA investigation are afforded such protections.

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