{"id":784,"date":"2017-06-21T16:19:27","date_gmt":"2017-06-21T16:19:27","guid":{"rendered":"http:\/\/blogs.luc.edu\/compliance\/?p=784"},"modified":"2017-06-21T16:19:27","modified_gmt":"2017-06-21T16:19:27","slug":"the-need-for-a-modified-upjohn-internal-investigations-and-when-to-warn","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/compliance\/?p=784","title":{"rendered":"The Need for a Modified Upjohn: Internal Investigations and When to Warn"},"content":{"rendered":"

Sarah Gregory
\nExecutive Editor
\nLoyola University Chicago School of Law, J.D. 2018<\/em><\/p>\n

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Compliance programs rely heavily on internal investigations. Yet unlike their counterparts in the in-house counsel\u2019s office, compliance professionals rarely give notice when they are conducting such investigations. Whether compliance professionals have duty<\/em> to notify individual directors, officers and employees of an internal investigation remains unclear. This lack of clarity leads to confusion with employees and officers regarding the limits of confidentiality, and the compliance officer\u2019s duty of loyalty. A robust ethics and compliance program should therefore take a proactive stance and integrate Upjohn warnings\u2014a standard of corporate counsel, but modified to fit the compliance function\u2014into the internal investigation process.<\/p>\n

Upjohn Warnings<\/strong><\/p>\n

The so-called \u201cUpjohn warning\u201d takes its name from the seminal Supreme Court case, Upjohn Co. v. United States<\/em><\/a>. Prior to Upjohn<\/em>, circuits were split<\/a> on whether employee communication with corporate counsel qualified as attorney-client exchanges. Upjohn <\/em>held that such communication was protected where the information was gathered for the purposes of rendering legal advice. Communication with counsel was privileged as long as (1) employees were only questioned about matters within the scope of their corporate duties, and (2) they were notified of the legal and investigatory context.<\/p>\n

However, Upjohn<\/em> also placed control of this privilege in the corporation\u2019s hands. Therefore, only the company, not the individual employees, could decide to maintain or waive the attorney-client privilege covering their communications. Typically, corporations waive this attorney-client privilege in order to fully cooperate with federal investigation\u2014an even more pressing obligation in the wake of the Yates Memo<\/a>.)<\/p>\n

The Upjohn<\/em> ruling gave corporate counsel increased capability to conduct internal investigations. Where counsel properly notifies employees an investigation is taking place, interviews and other fact-finding discussion can remain confidential and protected by privilege. Upjohn warnings are an integral part of maintaining that privilege\u2014serving as important notice to the employee of the investigation and the limitations of attorney-client exchanges.<\/p>\n

Upjohn warnings are typically furnished to an employee prior to an interview or other communication with counsel. In general, an Upjohn warning should address<\/a> that:<\/p>\n