Ensure Confidentiality After Crisis
November 14, 2017 THE NONPROFIT TIMES
Nonprofit managers often come together to evaluate what happened and how response went after a major incident or crisis. Though the information sharing is important for the organization to improve, it might not be information that leadership would want disseminated outside of themselves and counsel. During their presentation, “Everyone’s a Critic: Conducting an After Action Review without Alienating the Artists” at Risk Summit 2017 in Philadelphia, Pa., Ashden Fein, associate, and Marialuisa Gallozzi, partner, at Covington & Burlington LLP discussed how to go about protecting information shared during After Action Reviews (AARs).
AARs should be kept strictly confidential unless management decides to share recommendations. The speakers noted the difference between confidentiality and the more protective legal privilege. Legal privilege can refer to attorney client privilege, which only applies to legal assistance and does not apply for communications with individual organizational employees, or work product doctrine, which refers to materials prepared by an attorney in the course of legal representation. Work product doctrine is procedural and can be overcome by the opposing party showing “substantial need” for the material.
- In order to best protect information disclosed during AARs, Gallozzi and Fein recommended:
- Distinguishing “Process AARs from “Investigative AARs.” Investigative AARs are more likely to involve privileged information and it might be wise to separate the two under different planning, conducting, and recording if both are conducted after an event;
- Identifying participants. Note explicitly who is involved in the AAR from the outset and limit communications only to those listed as participants. The legal lead of the AAR must approve the sharing of any legal opinions outside the AAR team;
- Separating legal questions. Communication raising legal issues should be separate from those that are non-legal. For instance, discussing a fundraising benchmark should be separate from discussing whether a fundraising activity is legal;
- Spelling out when seeking or providing legal advice. Signal sensitive legal information by stating, in an email for instance, “I’d like your legal advice on . . .” Address such messages directly to counsel. Mark legal communications “Privileged and Confidential.”