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Anyone who’s ever seen a cop show can probably repeat the Miranda warning by heart. But how many company lawyers have the corporate version of Miranda down pat? Experts recommend that in-house attorneys deliver this advisory � called an Upjohn warning � before interviewing employees in an internal investigation. The gist of the warning: The lawyer represents the company, not the employee, and attorney-client privilege is held by the company, which has the right to disclose anything that the employee says. Recently the Association of Corporate Counsel began suggesting that in-house attorneys shouldn’t trust their memories to get the Upjohn warning right. ACC recommends that company lawyers use a written script. The association adds that it’s a good idea to have employees sign an acknowledgment that they’ve received the warning. One reason for using a script is that it helps ensure consistency, says F. Joseph Warin. A partner at Gibson, Dunn & Crutcher, Warin was hired by ACC to write the advice on warnings currently posted on its Web site. Warin also thinks the routine use of scripts is valuable “because it is very difficult in the beginning of an investigation to size it” � to assess “the breadth and depth of a problem.” Warin isn’t the only outside lawyer to endorse scripts. Michael Lampert of Saul Ewing in Princeton says that reciting a written Upjohn warning can protect a company if it ends up under investigation by the government. If employees interviewed in an internal probe aren’t given an Upjohn notice � or are given a faulty version � they may claim that the attorney-client privilege belongs to them, and they may try to stop the company from submitting materials to government investigators. There’s another reason why it may be prudent for lawyers to follow a script, Lampert says. The model rules of professional conduct specifically admonish attorneys not to give legal advice to people who don’t have legal representation (typically the case for employees interviewed at the start of an internal investigation). If an Upjohn warning isn’t given or isn’t clear, a lawyer could be the subject of an ethics complaint. But among a half-dozen in-house lawyers interviewed who handle internal investigations for their companies, almost all say that they don’t use a script. The most common explanation: They don’t believe it’s necessary. “I think most lawyers know they have an obligation to explain the difference between being an individual’s lawyer and a company’s lawyer,” says Douglas Graham, an assistant GC at Chicago-based Exelon Corporation. Most company lawyers also avoid asking employees to sign an acknowledgment that they’ve received the Upjohn warning. Jeffrey Eglash, a senior counsel at General Electric Company, says that lawyers don’t want to chill the flow of information. “I would be worried about taking this potentially tense interview situation and adding a form that you’re asking them to sign,” Eglash explains. “It may lead them to say, ‘Well, gee, maybe I should talk to [my own] lawyer.’ “ The one exception among the in-house attorneys who spoke for this story is Kathleen Kordek, associate GC at BB&T Corporation in Winston-Salem. Kordek, who handles employment investigations for the company, says she’s long used scripts. Kordek adds that on “rare occasions” over the past 15 years, she has asked employees to sign acknowledgments that they’ve received an Upjohn warning. Though Warin says signed acknowledgments are “the optimum,” he admits that he doesn’t try to get a signature when conducting an internal investigation for a client himself. Asking an employee to sign a statement can easily lead to a request for a copy, Warin explains. “It starts a papering process,” he says, that can erode the company’s control of the investigation.

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