By now it is well understood within the white-collar defense bar that an attorney conducting an internal investigation on behalf of a corporation should begin each interview of company employees with a warning that flowed from the Supreme Court’s decision in Upjohn v. United States1 and is often referred to by practitioners as an Upjohn warning. The warning advises the employee that the attorney sitting across the table represents the corporation, not the employee personally, that the meeting is subject to the attorney-client privilege and the employee therefore is not to disclose the substance of the interview to others, that the corporation is the holder of that privilege, and that the corporation alone will decide whether it will lower the privilege shield and provide the substance of the conversation to government investigators or other third parties.2
Like the Miranda litany in police investigations, Upjohn warnings in internal investigations operate to protect the questioner as much as, if not more than, the interview subject. By administering the warning as a matter of course, the attorney conducting an interview, like the police officer conducting a custodial interrogation, ensures that he or she will not be subject to criticism (or worse) for misleading the witness about their relationship or about the use that can be made of potentially incriminating statements. The person being interviewed, even if he or she fully understands what the warnings conveyed, is still left with the question, “should I talk?” As an aid to answering that question, many interview subjects in corporate investigations start by asking “Should I get my own lawyer?” This article addresses the legal, ethical, practical and tactical considerations that should be addressed by company counsel long before the question is directly posed by an employee witness. The answer is often uncertain and requires balancing several competing considerations and walking a delicate line with pitfalls on either side.
Ethical Framework
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