Every lawyer has some variation of the Upjohn warnings, but they generally include the following:
- I represent the corporation. I'm not your lawyer.
- I'm going to ask you questions regarding the big problem; our conversation is privileged. It is the company's choice whether or not to waive that privilege. If the company decides to waive the privilege, the information you provide may be disclosed to others.
- You can talk about the big problem to others; however, you may not talk about what you and I say during this interview to other employees or third parties with the exception of your lawyer, if you choose to hire one.
- Are you willing to be interviewed regarding the big problem?
Once you have provided the employee with sufficient Upjohn warnings, the attorney-client privilege is maintained by the company. One problem occurs when the company self-reports the employee's criminal conduct and the employee obviously wants to keep his or her inculpatory admissions privileged. The employee's personal attorney sends your client-company a letter stating that the employee reasonably believed he or she was being represented by you at the interview. You respond with an affidavit from the auditor and a letter explaining that you provided adequate Upjohn warnings. Now it is up to a judge. Could you have done something differently to alleviate your new big problem? Yes.
At the end of the interview, you can ask the employee to sign an acknowledgement that you provided Upjohn warnings. Write each warning out on the acknowledgement. Remind the employee that you gave the Upjohn warnings at the start of the interview and that the acknowledgement merely serves as his or her written confirmation of receipt of those warnings. Make sure the employee initials each warning on the document. Timing is important. If you give the employee an acknowledgement form at the beginning of the interview, you will likely intimidate the employee. The employee will be suspicious and, more importantly, less open and honest in providing answers.
This article originally appeared in The Legal Intelligencer.