26.19 - 3. The Upjohn Warning

JurisdictionNew 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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