Most outside counsel conducting internal investigations of corporate clients begin employee interviews by advising the individual that (i) the lawyer represents the company and not the employee and (ii) the interview is privileged but the privilege belongs to the company, which can decide to waive it and disclose the contents of the interview at any time.
But the level of detail of these so-called “Upjohn warnings,”[FOOTNOTE 1] named after the U.S. Supreme Court decision upholding the privilege to the company when individual employees are questioned by the company’s lawyers, often vary, given competing considerations. The investigating lawyer must attempt to balance the need to disclose potential conflicts of interest to the employee with the desire to conduct the interview and obtain information that could be critical to the investigation.
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