The government – including the DOJ, SEC and CFTC – promotes the potential incentives available to companies that voluntarily self-disclose misconduct in a timely manner and fully cooperate with law enforcement and regulators. See “Newly Revealed CFTC Self-Reporting and Cooperation Regime Could Offer Benefits to Fund Managers, or Lead to Increased Enforcement
” (Oct. 19, 2017). Timely disclosure of facts ascertained by either in-house or outside counsel during the course of a manager’s internal investigation, although critical in achieving full cooperation credit from a regulator, poses certain risks that counsel must consider before making that disclosure. Highlighting the potential pitfalls that can arise when a company seeks to fully cooperate with a regulator, a recent decision in the Southern District of Florida calls into question whether disclosing information about an internal investigation to the government will result in a waiver of the work product protection. In a guest article, Baker Botts partners Bridget Moore and Seth Taube, and associate Joseph Perry, analyze the decision and discuss strategies that a fund manager can employ to avoid waiving the attorney work product protection. See Hedge Fund Law Report’s three-part series on protecting attorney-client privilege and work product while cooperating with the government: “Establishing Privilege and Work Product in an Investigation
” (Mar. 23, 2017); “Minimizing Cooperation Risks
” (Mar. 30, 2017); and “Implications for Collateral Litigation
” (Apr. 6, 2017).