26.19 - 3. The Upjohn Warning
Jurisdiction | New York |
3. The Upjohn Warning
The Upjohn decision clarified four important principles as to the privilege and corporations:
The privilege applies in the corporate context;
The privilege belongs to the corporation, and the corporation can waive the privilege;
The privilege is extended to those outside the control group; and
There are important limitations when applying the privilege to non-control group employees.
Out of these principles has come the Upjohn warning. This warning, also called a corporate Miranda warning, is given to employees to advise them of the limits of the privilege and of the potential ramifications of giving a statement to an attorney who represents the corporation and not the employee. While not explicitly required by the Upjohn decision, it is considered a best practice to give this warning when interviewing employees of the company. One version of this warning is:
I am a lawyer for or from Corporation A. I represent only Corporation A, and I do not represent you personally.
...I am conducting this interview to gather facts in order to provide legal advice for Corporation A. This interview is part of an investigation to determine the facts and circumstances of X in order to
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- 26.0 - I. Introduction
- 26.1 - II. Background Of The Attorney-Client Privilege
- 26.2 - A. General Principles
- 26.3 - B. Attorney-Client Privilege And Rules Of Professional Responsibility
- 26.4 - C. Exceptions To The Attorney-Client Privilege
- 26.5 - 1. At Issue Waiver
- 26.6 - 2. Inadvertent Disclosure
- 26.7 - 3. Public Policy Exceptions
- 26.8 - 4. Crime-Fraud Exception
- 26.9 - D. The Privilege And Third Parties
- 26.10 - 1. Legal Staff
- 26.11 - 2. Other Professionals
- 26.12 - 3. Common Interest Doctrine
- 26.13 - III. Attorney-Client Privilege For Corporate In-House Counsel
- 26.14 - A. Overview
- 26.15 - B. Important Differences
- 26.16 - C. The Attorney-Client Privilege And The Upjohn Decision
- 26.17 - 1. Corporate Privilege Tests
- 26.18 - 2. Upjohn Decision
- 26.19 - 3. The Upjohn Warning
- 26.20 - 4. Upjohn And Practical Challenges
- 26.21 - 5. Upjohn And The States
- 26.22 - D. Attorney-Client Privilege And Attorney Directors
- 26.23 - 1. Requirement To Notify Board
- 26.24 - 2. Other Exceptions To The Privilege
- 26.25 - 3. Differentiation Of Roles Between Attorney And Director
- 26.26 - E. Duty To Report
- 26.27 - IV. The Attorney Work Product Doctrine
- 26.28 - A. Overview
- 26.29 - B. Policy Considerations
- 26.30 - C. Exceptions To Attorney Work Product
- 26.31 - 1. “In The Regular Course Of Business”
- 26.32 - 2. “Substantial Need”
- 26.33 - V. Conclusio
- Appendix
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