A Non-Verbal Response from a Professional Politician

LEGAL ASPECTS
Corporate Miranda Warnings- Upjohn v. United States 449 US 383 (1981)
Interestingly, there has been a corporate warning for employees interviewed by attorneys investigating incidents within companies since the Upjohn
case was decided in 1981. This case largely focuses on the scope of the attorney-client privilege in a business as it determines the facts surrounding
alleged misconduct.
Upjohn Company manufactures and sells pharmaceuticals in the United States and around the globe. In 1976 independent auditors discovered what
may have been illegal payments to government officials in a foreign subsidiary of Upjohn. Upjohn elected to conduct an internal investigation into
these payments to determine whether or not they were paid to secure government business and thus were in essence a bribe.
As part of the investigation attorneys for the Upjohn Company prepared a questionnaire to be sent to key personnel in the foreign subsidiaries. The
questionnaire was accompanied by a letter signed by the chairman of the board that indicated possible illegal payments to foreign officials had been
made by subsidiaries of Upjohn. The letter also said that the organization needed full information regarding any such payments to determine the nature
and magnitude of them. The questionnaire then went on to seek detailed information about the payments. The employees were also instructed
that this was a highly confidential matter not to be discussed outside the company. In addition, Upjohn’s general counsel and outside counsel interviewed
the people who filled out the questionnaire and 33 other Upjohn employees.
At the conclusion of the in-house investigation Upjohn submitted a report to the Securities and Exchange Commission which disclosed the questionable
payments. The Internal Revenue Service was also notified of the investigation and they initiated an independent investigation of the situation.
As part of the preliminary information provided Upjohn gave the IRS lists of all the Upjohn employees interviewed and the names of the employees
who filled out questionnaires.
The IRS issued a summons requiring Upjohn to produce “The record should include but not be limited to written questionnaires sent to managers of
the Upjohn company’s foreign affiliates, and memorandums or notes of the interviews conducted in the United States and abroad with officers and
employees of the Upjohn Company and its subsidiaries.” Upjohn refused to supply the IRS requested information in this paragraph believing that
they were protected from disclosure by the attorney-client privilege or where the work product of the organization’s attorneys was done in anticipation
of litigation.
In internal investigation
being investigated by a
corporation’s lawyers
there is a potential conflict
of interest should they
attempt to represent both
an employee and the
Corporation.
From this litigation became what is now known as the Upjohn warning. In internal investigation
being investigated by a corporation’s lawyers there is a potential conflict of interest should
they attempt to represent both an employee and the Corporation. The Upjohn warning is an explanation
that the lawyer represents the Corporation and not the individual employee. The implication
of this is that the can be somewhat problematic for the employee. Since the privilege is
between the company and the attorney any statements made by an employee are not privileged
between the attorney and employee. But rather the privilege is controlled by the company and
may be released to third parties without the consent of the employee or even his or her knowledge.
For example, the company could provide the employee’s statements to law enforcement or
regulatory bodies potentially opening the individual to criminal or civil actions.
Company lawyers investigating improprieties should document the Upjohn warnings either
documenting them in their notes or using a separate sheet listing the warnings that the employee
signs.
While the exact wording of the Upjohn warnings are not as specific as those detailed in the Miranda decision they should generally include the
following.
1. The lawyer represents the company and not you the employee.
2. The company lawyers often gather information by speaking with the organization’s employees. This is done so that the lawyer can provide legal
advice to their client; the company. The conversation between the lawyer and employee is protected by attorney client privilege.
3. The attorney-client privilege is between the company and the lawyer, not the employee. The privilege is controlled by the company which may
decide to share any information it learns from the employee with third parties without the employee’s permission or prior notice.
Continued on page 10
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