Companies often conduct internal investigations when they suspect misconduct. They may have learned of a problem when notified of a governmental investigation or discovered suspicious activity on their own. As part of the investigation, they typically interview employees. This raises potential concerns as the company and employee may have conflicting interests. The attorneys employed to conduct the inquiry have to take care that they protect the company but also provide sufficient warning to employees who may be incriminating themselves. To address these issues, attorneys are required to provide employees with an Upjohn warning.
What Is an Upjohn Warning?
An Upjohn warning (also known as a corporate Miranda warning) is a notice given to an employee by the employer’s attorney when the employee is being questioned in an internal investigation. It takes its name from the Supreme Court case Upjohn Co. v. United States, which held that communications between a company’s attorney and its employees are protected by attorney-client privilege, but the company, not the employee, controls the privilege.
The warning must provide the following information to the employee:
Why Is an Upjohn Warning Necessary?
Attorneys in corporate internal investigations are faced with potential ethical challenges and conflicts of interest. Their client is the company, and it is in the company’s interest for attorneys to uncover all relevant information and get employees to be honest in the course of an investigation. However, since the employee has no control over whether their statements are shared with the government or third parties, it may not be in the employee’s interest to be honest and thereby face potential civil and/or criminal liability.
What Steps Should Company Attorneys Take in an Internal Investigation?
Before interviewing anyone, companies should consult counsel to determine how to address potential conflicts of interest. In some cases, certain employees may need separate counsel to avoid conflicts. An attorney may be able to represent both the employee and the company. However, the attorney must believe that both parties can be effectively and ethically represented and obtain written conflict waivers from both parties. This should be done before questioning employees if possible.
A full Upjohn warning should be given to employees questioned. The attorney should memorialize giving the warning in interview notes along with obtaining an acknowledgment from the employee that the warning was received.
Importantly, if there are conflicts of interest, getting the conflict waiver is necessary, even if a proper Upjohn warning is given.
What Steps Should Employees Take to Protect Themselves in an Investigation?
Employees have a right to a separate attorney in an internal investigation. If you receive an Upjohn warning, it is advisable to contact an attorney for assistance before answering questions. Because the company can share your statements with the government and third parties, you can end up facing significant civil or criminal liability. An experienced lawyer can guide you in responding to the company’s attorney and represent you in the event the matter escalates.
If you have received an Upjohn warning, contact our firm to discuss how we can help protect your rights.