Over the past several years, the University of Michigan’s athletic department has been involved in a series of high-profile controversies. Public attention has focused on the Connor Stallions sign-stealing investigation, NCAA enforcement proceedings, Jim Harbaugh’s show-cause penalty, allegations of sexual harassment within the athletic department, and broader concerns about culture and institutional oversight.

In response, the University retained the national law firm Jenner & Block to conduct an independent investigation. That investigation is now the subject of separate litigation. A lawsuit brought under Michigan’s Freedom of Information Act seeks disclosure of records related to the investigation, while the University argues that many of those materials are protected by the attorney-client privilege and the attorney work-product doctrine.

For attorneys, executives, board members, and public officials, the dispute raises an important question: when should an organization retain outside counsel to conduct an internal investigation, and what legal protections may result?

Why Organizations Retain Outside Counsel

When allegations of misconduct arise, organizations have several options. Human resources may investigate. A compliance team may review the facts. Management may conduct an internal review.

However, when allegations involve senior leadership, potential criminal conduct, regulatory exposure, significant financial risk, or anticipated litigation, organizations often turn to outside counsel.

The reason goes beyond independence. Outside counsel is engaged to provide legal advice. Determining what happened is only one part of the process. Counsel evaluates legal risk, analyzes applicable laws, advises decision-makers, recommends corrective action, preserves evidence, and prepares the organization for potential litigation or regulatory scrutiny.

This distinction is critical. The legal purpose of the engagement often determines whether communications and materials remain protected from disclosure.

Attorney-Client Privilege: Protecting Legal Advice

The attorney-client privilege exists to encourage full and honest communication between clients and their attorneys. This allows attorneys to provide informed legal advice.

Simply copying an attorney on an email does not make the communication privileged. The privilege generally applies only when the communication is confidential, involves attorney and client or their representatives, is made for the purpose of obtaining or providing legal advice, and remains confidential.

The privilege protects communications, not underlying facts. As explained in Upjohn Co. v. United States, 449 U.S. 383 (1981), a witness cannot refuse to disclose facts simply because those facts were discussed with counsel.

In an organizational context, the privilege can extend beyond senior leadership. Employees may be covered when communicating with counsel about matters within the scope of their duties for the purpose of enabling legal advice.

Courts closely examine the role of counsel. If the attorney is acting primarily as a business advisor, investigator, or public relations consultant, the privilege may not apply.

The Attorney Work-Product Doctrine

The work-product doctrine is distinct from the attorney-client privilege. It protects materials prepared by or for attorneys in anticipation of litigation.

Examples include interview notes, witness memoranda, investigative summaries, legal research, and strategy assessments.

This doctrine allows attorneys to prepare cases without providing adversaries with insight into their strategy. Unlike attorney-client privilege, work-product protection is not absolute.

Factual work product may be discoverable if an opposing party shows substantial need and cannot obtain the equivalent without undue hardship. Opinion work product, which includes mental impressions, legal theories, and strategy, receives much stronger protection and is rarely disclosed.

Preserving Privilege

Privilege does not arise automatically. Courts evaluate several factors, including:

• The reason outside counsel was retained
• Whether the primary purpose was to provide legal advice
• Whether litigation was reasonably anticipated
• Whether confidentiality was maintained
• Who received investigative materials
• Whether employees were informed that counsel represented the organization
• How the investigation was structured from the outset

These factors often determine whether privilege is upheld.

Waiver Risks

Even valid privilege can be lost if confidentiality is not preserved. Attorney-client privilege is typically waived when communications are voluntarily shared with third parties.

Work-product protection operates differently. Disclosure does not automatically waive protection unless it increases the likelihood that an adversary will obtain the material.

Organizations may still preserve protection when sharing information with parties that share a common legal interest, such as insurers or joint defense participants. In many jurisdictions, including federal courts, New Jersey, and Michigan, inadvertent disclosure may not waive privilege if reasonable safeguards were in place and prompt corrective action is taken.

The Public University Factor

The University of Michigan case presents an added layer of complexity because it involves a public institution. As a result, it is subject to Michigan’s Freedom of Information Act.

FOIA reflects a strong policy favoring transparency and accountability. At the same time, attorney-client privilege and work-product protections serve the important purpose of enabling candid legal advice and effective litigation preparation.

The court must balance these competing interests and determine whether the requested records fall within statutory exemptions. The outcome may provide guidance for other public entities, including universities, municipalities, and school districts.

Practical Considerations

Retaining outside counsel involves more than conducting interviews. Counsel can assist with:

• Preserving electronically stored information
• Identifying litigation risks
• Conducting privileged witness interviews
• Providing Upjohn warnings to employees
• Coordinating with regulators and insurers
• Advising leadership and governing bodies
• Determining whether to prepare written or oral reports

In some cases, an oral presentation of findings may better protect legal analysis, especially when litigation or public records requests are expected.

Final Thoughts

The University of Michigan matter highlights the importance of structuring internal investigations with legal strategy in mind. It underscores the distinction between attorney-client privilege and the work-product doctrine and demonstrates why organizations rely on outside counsel when legal exposure is significant.

Courts focus on substance rather than form. They examine whether communications were made for legal advice, whether litigation was anticipated, whether confidentiality was preserved, and whether privilege was waived.

Careful planning at the outset of an investigation can have lasting consequences for what remains protected.