The situation where a corporate employee is being interviewed by the attorney representing the corporation raises special attorney-client issues. Such interviews are common place in most internal investigations carried out for the purpose of providing legal advice to a corporation. In Upjohn v. United States, the Supreme Court provided important guidance to all attorneys who find themselves interviewing corporate employees. The purpose of the “Upjohn Warnings”, as they have come to be known, is to make sure that the individual employee being interviewed understands that the attorney-client privilege, as commonly understood, does not apply to their interview with an attorney representing the corporation. Making sure that the employee being interviewed is aware of this fact is a necessity that establishes the ethical character of the attorney’s actions while also preserving the corporation’s legal ability to control and use the statements by the employee in the manner best suited to its legitimate interests.
The Upjohn decision, and professional commentary regarding it (See generally, ABA White Collar Crime Comm., “Upjohn Warnings: Recommended Best Practices When Corporate Counsel Interacts With Corporate Employees” (2009), available at HTTP://meetings.abanet.org/wedupload/commupload/CR301000/newsletterpubs/abaupjohntaskforcereport.pdf) advise that in any situation when an attorney; either in-house or outside counsel representing a corporation; determines that a conflict, or even a potential conflict, may exist between the interests of the individual employee being interviewed and the corporate client, the lawyer should advise the employee witness of the following:
- The lawyer represents the corporation, not the employee being interviewed;
- The purpose of the interview is an attempt to obtain truthful information to assist the lawyer in his representation of the corporation;
- The employee being interviewed may wish to obtain independent legal advice; and
- Any attorney-client privilege that may exist in connection with the interview belongs exclusively to the corporation, not to the employee being interviewed, and the corporation may, at its sole discretion, waive the attorney-client privilege and disclose the content of the interview if it should so determine.
Some lawyers have added additional warnings to their version of the “Upjohn Warnings.” Common additions include: explicitly informing the employee that the attorney conducting the interview may not provide any legal advice to the employee because he represents the employer organization; and, a statement to the employee that while the employee has the right to decide whether to answer the interviewer’s questions, the terms of the employee’s employment and the continuation of that employment require the employee to cooperate in all reasonable internal investigations carried out by the corporation. These “additions” are not required by the Upjohn ruling itself but may well provide a stronger basis upon which to allow the corporation to later use interview statements made by an employee because the additional statements provide relevant and important information to the employee which makes all the clearer the employee’s understanding of the terms under which the interview is conducted. These additions highlight that the interviews are undertaken solely for the benefit of the corporation so that it can obtain the benefit and protection of the advice of its legal counsel.
Because it is the rare situation where before interviewing a particular employee the lawyer representing the corporation in an internal investigation can rule out the possibility that the employee’s interests “may differ” from the corporation’s, the provision of the Upjohn Warnings is strongly recommended in all instances where employees are being interviewed. The risks that flow from not providing adequate Upjohn Warnings can be serious, and include, suppression of witness statements, counsel disqualification, witness confusion, malpractice claims and even referrals for bar disciplinary action. It is, therefore, highly recommended, as well as widely accepted practice, to administer Upjohn Warnings before virtually every employee interview, even if it seems clear at the time that the employee to be interviewed is most likely a mere witness, as opposed to a potentially culpable participant in, the conduct under investigation.