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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 (ACC) began suggesting that in-house attorneys shouldn’t trust their memories to get the Upjohn warning right. The 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. The warning stems from a 1981 U.S. Supreme Court case, Upjohn v. U.S., 449 U.S. 383, which helped define when attorney-client privilege applies in the corporate context. One reason for using a script is that it helps ensure consistency, said F. Joseph Warin. A partner in Los Angeles firm Gibson, Dunn & Crutcher’s Washington office, Warin was hired by the ACC to write the advice on warnings currently posted on its Web site. Warin believes the scripts help assess the “depth of a problem.” Not alone on scripts Warin isn’t the only outside lawyer to endorse scripts. Michael Lampert of Philadelphia-based Saul Ewing’s Princeton, N.J., office said that 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 said. 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). 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,” said Douglas Graham, an assistant GC at Chicago-based Exelon Corp.

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