Attorneys conducting FCPA interviews generally start with a routine “Upjohn” warning – a sort of lawyerly throat-clearing. But to interviewees hearing this warning for the first time, it can be startling. In-house lawyers have reported to me that outside U.S. counsel are generally terrible at providing an Upjohn warning in a way that does not scare the living daylights out of interviewees. This presents particular problems with foreign interviewees who are unused to U.S. law (and U.S. lawyers). Foreigners may confuse Upjohn warnings with the formal reading of Miranda rights they have seen on TV, causing alarm and an unnecessarily chilling effect on the interview.
Generally, a lawyer giving an “Upjohn” warning does the following:
- Notifies interviewees that the lawyer represents the company and not the interviewee;
- Asks interviewees to keep the information discussed in the interview confidential to protect the attorney-client privilege; and
- Notifies the interviewee that while the interview is covered by the attorney-client privilege, that privilege belongs to the company, which could decide to waive it without the interviewee’s consent (e.g., if the company cooperates with an investigation by law enforcement.)
The warning is named after Upjohn v United States, 449 U.S. 383 (1981), a case in which the Supreme Court confirmed that communications between corporate counsel and corporate employees can be protected under the attorney-client privilege. If communications are “privileged”, then neither the authorities nor other parties are entitled to see them without a waiver or an exception to the privilege.
Such protection is extremely useful in the context of investigations, as it permits lawyers to communicate about allegations and facts without worrying that their communications will become evidence against the company in subsequent litigation. But to ensure that the claim of attorney-client privilege can be made, lawyers must be careful to provide appropriate disclosures – i.e., the Upjohn warning.
Reducing the Shock Factor
The following are four suggestions for how U.S. lawyers can provide Upjohn warnings in a way that is thorough and accurate, but less frightening.
1. Provide Some Context: Taking the time to talk to the interviewee at the outset about the reason for the interview and for the Upjohn warning can put the interviewee at ease and help build rapport. It can be helpful to have the Upjohn warning described by local counsel, who will likely be more able to bridge cultural or linguistic gaps. Often, employees will be more candid in answering questions when local counsel makes such a warning, even if it is just to repeat the U.S. counsel’s explanation and to ask if the witness has any questions.
2. Discuss the Nature of the Interview in Advance. In the context of mergers and acquisition due diligence and compliance assessments, some companies choose to provide management of the subject company with an overview of the review process. This will include the nature of the interviews to be conducted. This allows an opportunity for questions about various topics, including the Upjohn warning.
3. Make it Routine: The more the interviewer establishes that warnings are standard and not specifically directed to the interviewee, the less likely the interviewee is to overreact. For example, lawyers can clarify that a compliance audit is a periodic exercise at the company, and that it is standard practice for international companies to regularly assess their own compliance practices. For an internal investigation, it may be useful to explain that when the company receives a substantiated allegation of wrongdoing, it will always conduct some level of review. It may also be useful to describe how international anti-corruption compliance has become a basic standard for all companies doing multi-national business, and that reviews and investigations are now a standard component of compliance.
4. Use Local Language: There is simply no substitute for conducting the interview in the interviewee’s own language. It can reduce an interviewee’s anxiety about miscommunications. In contrast, using a translator makes establishing rapport difficult. Conveying technical concepts like legal privilege is also much easier to do when explained in a person’s first language, rather than in English, especially if their English is not very strong.
Finally, for lawyers looking to perfect the technical aspect of their Upjohn warnings, an ABA task force has prepared a document summarizing best practices.
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© 2013 FCPAméricas, LLC
Post authored by Matt Ellis, FCPAméricas Founder & Editor