An IPSIG may disclose confidential information it receives during
an assignment only as required by law or as agreed among the parties
to the assignment.
To that end, an IPSIG, unless otherwise agreed between the parties
to a particular assignment, shall cooperate in efforts to resist
attempts by third parties to obtain confidential information acquired
by it in the performance of its work.
When the circumstances of the particular assignment preclude
the operation of otherwise generally available privileges or
professional standards protecting the confidentiality of client
information, an IPSIG shall ensure that its client is made aware
of the non-availability of such privileges and standards, and is
informed of the implications of such non-availability, prior to
the commencement of the assignment.
- This paragraph covers the
general duty of confidentiality with respect to client information.
The general language in the first paragraph permits the disclosure
of information for the purpose of fulfilling dual reporting responsibilities.
- The second paragraph requires an IPSIG to cooperate in opposing
attempts by third parties to obtain copies of documents produced
by the IPSIG, such as investigative reports, for the purpose
of litigation against the host organization or otherwise. Such
opposition might include asserting the self-evaluative privilege,
the "limited waiver" theory and the law enforcement
- The third paragraph requires the IPSIG to ensure that the host
organization is fully informed and understands the implications
of the loss of any privileges (including the loss of any attorney-client
and work product privileges) when an IPSIG report is communicated
to the reporting entity. The non-applicability of any other standards
relating to confidentiality, e.g., AICPA Professional Standards,
AU §§ 316.29, 317.23 should likewise be communicated,
depending upon the circumstances. Ideally, this should be included
in the IPSIG's retainer agreement with the client.
- Under Federal and certain state laws, a private citizen with
unique knowledge of fraud against the government can bring an
action in the name of the government (known as a "qui tam" action)
and, in return, receive a share of the proceeds. (31 U.S.C. § 3729
et seq. (Federal False Claims Act); e.g., Fla. Stat. Ann. § 68.081-092
(Supp. 1995) (Florida False Claims Act).) If an IPSIG or its
members, in the course of an assignment, uncovers information
indicating the commission of fraud against the government by
the host organization, it would be improper, and would constitute
a breach of confidentiality, for the IPSIG or any of its members
to bring a qui tam action, or to provide that information to
another for the purpose of bringing a qui tam action.