26.20 - 4. Upjohn And Practical Challenges
Jurisdiction | New York |
4. Upjohn and Practical Challenges
One of the practical challenges of the Upjohn warning is that an employee may be less cooperative with an in-house investigation, rather than more, upon learning that he or she does not own the privilege. This is especially true if the employee is facing personal legal consequences for his or her actions. The reality is that most regulatory and law enforcement actions against a corporation usually settle. A settlement may be more likely where the corporation is cooperative, and this cooperation is often manifested by the corporation waiving the privilege as to key facts in the case, including potentially damaging statements by employees.
For example, the Foreign Corrupt Practices Act (FCPA) is a law very familiar to companies that do business abroad. The law prohibits “certain classes of persons and entities” from making “payments to foreign government officials to assist in obtaining or retaining business.”3779 This law is generally enforced by the Department of Justice and the SEC. While most high profile investigations usually involve charges against the companies themselves, employees can be and are charged personally for violations of the FCPA. For example, in 2014, the SEC charged two sales representatives for violations of the FCPA.3780 The SEC fined one of them $50,000 and the other $20,000.3781 In 2017, the SEC charged a company’s former vice president with violating the FCPA...
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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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