Preserving Attorney-Client Privilege in Corporate Internal Investigations in Light of FirstEnergy Ruling

Corporate law firms nationwide were relieved as attorney-client privilege and the work-product doctrine remained safeguarded. In a recent decision, the Sixth Circuit Court of Appeals had temporarily stayed a district court’s decision requiring the disclosure of investigative materials related to the FirstEnergy Corporation (“FirstEnergy”) bribery scandal (“Scandal”). (Debra Weiss, ABA Journal). After the Scandal implicated FirstEnergy in funneling money to politicians to secure the passage of Ohio House Bill 6, the company’s board of directors hired the law firms of Jones Day and Squire Patton Boggs to internally investigate the allegations. (Alison Frankel, Reuters). The district court reasoned that because FirstEnergy sought counsel’s advice for both business and legal purposes, the communication did not fall under attorney-client privilege or the attorney-work-product doctrine. In re FirstEnergy Corp., No. 24-3654, 2025 WL 2335978, at 2* (6th Cir. Aug. 7, 2025). The Sixth Circuit disagreed, stating "Th[is] approach gets it backwards” and found that communications produced by law firms hired for the purpose of conducting internal investigations are protected by attorney-client privilege and attorney-work-product doctrine. Id. This post examines how the Sixth Circuit addressed the privacy issue raised by the district court’s decision and analyzes the ruling’s ramifications for corporate internal investigations, as well as its broader effects on large corporate firms and law firm business practices.

The Sixth Circuit’s decision underscores why preserving attorney-client privilege and work-product protection is vital to maintaining the integrity of corporate internal investigations. Attorney-client privilege was designed to allow attorneys to provide candid and constructive legal advice. (Alison Frankel, Reuters). Communications and materials produced from law firms hired for the purpose of conducting internal investigations into a company fall within the work-product doctrine, which protects documents created in anticipation of litigation, and attorney-client privilege. Id. Protections over attorney-client communication and the attorney-work-product doctrine afford a certain level of privacy for clients. The Sixth Circuit’s ruling preserved these protections, preventing serious impacts on the confidentiality of attorney work products and attorney-client communications.

The Scandal drew widespread attention from influential voices, including many prominent corporate law firms. Id. The Scandal, the largest corruption scandal in Ohio’s political history, involved tens of millions of dollars in bribes to politicians to secure a political bailout for two of FirstEnergy’s nuclear power plants. (Jessica Corso, Law 360). The U.S. Department of Justice, U.S. Securities and Exchange Commission, and the Ohio Attorney General’s Office investigated the Scandal, while numerous law firms filed amicus briefs urging the court to protect attorney-client privilege and the work-product doctrine in corporate internal investigations. Id.  These amicus briefs argued that upholding the trial court’s decision to compel production of the protected documents would prevent attorneys from providing clients candid and constructive legal advice. (Alison Frankel, Reuters). In addition, the firms emphasized in their briefs that courts should not deny protection to communications simply because they serve both business and legal purposes. Id.  Furthermore, they argued that companies are entitled to keep communications confidential if they support legal advice, regardless of the motivation for initiating an internal investigation. Id. Accordingly, the amicus briefs warned that upholding the lower court’s decision would discourage internal investigations that the government encourages companies to conduct when potential issues arise. Id.

The Sixth Circuit court found that it was uncommon for a company under legal scrutiny not to have a business-related reason for seeking legal advice. In re FirstEnergy Corp. at *2. It further explained that “what matters for attorney-client privilege is not what a company does with its legal advice, but simply whether a company seeks legal advice.” Id. The holding ensured that a company seeking both business and legal advice does not lose attorney-client privilege or work-product protection for its communications or documents. Id. at *3. The Sixth Circuit’s ruling acknowledged the strong public interest position, displayed by corporate firms, in preserving attorney-client privacy standards and ensuring future protection for corporate internal investigations in the wake of the Scandal.

Had the lower court’s decision in In Re FirstEnergy Corp. been upheld, it could have undermined attorney-client privilege and the work-product doctrine, with serious implications for corporate internal investigations. This would have made it difficult for law firms to maintain confidential communications between lawyers and clients, as attorney-client privilege would cease to protect documents and information found during internal investigations by making such materials discoverable. (Roy Strom, Bloomberg Law). This could have disincentivized companies from hiring outside counsel to investigate internal conduct. Id. As a result, clients might begin to view attorneys as “threats” instead of “trusted advisers,” as the protections afforded by the attorney-client privilege and the work-product doctrine help establish lawyers in that trusted role. Id. The lower court’s decision could have significantly weakened privacy standards for corporate internal investigations conducted by attorneys in their dual roles of providing legal and business advice, limiting the ability of law firms to fulfill their duty as trusted advisors while protecting their clients’ interests.

In contrast to the potential consequences of the lower court’s decision, the Sixth Circuit’s ruling supports corporate law firms and law firm business practices moving forward. Strong public interest opinions presented in amicus brief filings reinforced large corporate firms as the primary choice for major corporate investigations. Id. By affirming attorney-client privilege and work-product protections, the court strengthened the role of the firm in corporate investigations and ensured that law firms could continue to build profitable practices advising and protecting corporate clients facing legal action.