The ups and downs of Upjohn
Good morning Mr. Employee. Thank you for meeting with me. Sitting next to me is Ms. Auditor and she will be taking notes of our interview. I am the lawyer for the company you work for. I’m here to ask you about the big problem your employer needs to figure out. It is my understanding that you may have facts and information about the big problem. Let’s talk.
There is a fine balance in explaining to your client’s employee that you want to have a privileged conversation with the employee, however, you are not his lawyer. You need the employee to be candid and honest. That honesty may incriminate the employee and benefit your client-company. It is an awkward moment when you begin the interview by clearly informing the employee you are not acting in his interest even though you work for the same company.
Every lawyer has some variation of warnings derived from the Supreme Court decision Upjohn v. United States, 449 U.S. 383 (1981). The Upjohn warnings generally include the following:
- I represent the corporation. I’m not your lawyer;
- I’m going to ask you questions regarding the big problem; our conversation is privileged. It is the company’s choice of whether or not to waive that privilege. If the company decides to waive the privilege, the information you provide may be disclosed to others;
- You can talk about the big problem to others. However, you may not talk about what you and I say during this interview to other employees or third-parties with the exception of your lawyer, if you choose to hire one; and
- Are you willing to be interviewed regarding the big problem?
Once you have provided the employee with sufficient Upjohn warnings, the attorney-client privilege is maintained by the company. The problem occurs when the company self-reports the employee’s criminal conduct and the employee obviously wants to keep his inculpatory admissions privileged. The employee’s personal attorney sends your client-company a letter stating that the employee reasonably believed he was being represented by you at the interview. You respond with an affidavit from the auditor and a letter explaining that you provided adequate Upjohn warnings. Now it is up to a judge. Could you have done something differently to alleviate your new big problem? Yes.
At the end of the interview you can ask the employee to sign an acknowledgement that you provided Upjohn warnings. Write each warning out on the acknowledgement. Remind the employee that you gave the Upjohn warnings at the start of the interview and that the acknowledgement merely serves as his or her written confirmation of receipt of those warnings. Make sure the employee initials each warning on the document.
Timing is important. If you give the employee an acknowledgement form at the beginning of the interview you will likely intimidate the employee. The employee will be suspicious and, more importantly, less open and honest in providing answers.