The enhanced role of independent auditors mandated by the Sarbanes-Oxley Act in evaluating a public company’s financial statements and internal controls may produce a dilemma for corporate management and its counsel: either share attorney-client privileged and work product materials with the auditor to enable it to evaluate potential internal control, accounting or audit issues, or withhold such confidential information and risk having to file periodic reports late (after filing Form 12b-25 explaining the reason for filing late), or receive from the auditor a qualified audit report on financial statements and internal control over financial reporting. In this reckoning of interests, the potential regulatory, business and litigation consequences of refusing an independent auditor’s request to see attorney analyses underlying loss contingency disclosures often lead management to share attorney work product with the auditor.
Judicial decisions determining whether and to what extent a company’s disclosure of confidential information to a third party waives privilege or work product immunity seek to balance the public interests served by privilege and the competing interest in access to evidence. This column summarizes recent case law addressing the implications of disclosure of work product protected materials to outside auditors, and recommends best practices to increase the likelihood such disclosures do not constitute waiver of the immunity.
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