The role of individual counsel for executives and employees cooperating with corporate internal investigations.

It is understandably nerve-racking to receive this sort of call from your company’s lawyer: “Some things have recently come to our attention and we would like to spend some time with you to learn more about the facts and circumstances surrounding [fill in the blank].”  You may start to question yourself.  Did I do something wrong?  Am I getting fired?  What is this even about?

When corporate internal investigations are underway, individual employees and executives should be careful to understand who represents who when they are asked to cooperate with company lawyers.  In some cases, individual counsel should be sought to protect personal interests during the course of the investigation.

Does my company lawyer represent me individually when I am asked to cooperate with a corporate internal investigation?

No.

What happens with the information I share?

Attorney-client privilege generally serves to protect a client’s confidential communications with their attorney from forced disclosure to others, including government criminal and civil investigators.  In 1981, the U.S. Supreme Court made clear that, with respect to employees interviewed by company counsel during a corporate internal investigation, the attorney-client privilege does apply, but the privilege belongs to the companyUpjohn Co. v. United States, 449 U.S. 383 (1981).  This means a company is free to decide whether it is in the company’s interest (usually to gain favor with the government) to waive privilege and divulge communications made by executives or employees who cooperate with company lawyers during an internal investigation.

What is an Upjohn warning and how can individual counsel help me?

Company lawyers conducting internal corporate criminal investigations should always begin interviews with individual executives or employees by providing what’s known in legal circles as an “Upjohn warning.”  Essentially, the lawyer tells the interviewee that the discussion is privileged, but that the lawyer’s client is the company, the company controls the privilege, and the company may elect to waive this privilege down the road without the interviewee’s consent.

An employee or executive may choose to engage individual counsel under these circumstances to protect their personal interests.  Importantly, individual representation does not preclude the employee or executive from cooperating; in fact, such cooperation often serves to further the individual’s interests.  Nevertheless, individual counsel can privately advise the executive or employee without the conflicts of interest that arise from a client relationship with the company itself.  Further, individual counsel may be able to establish a joint defense agreement with the company to permit information sharing while still protecting against the risk of uncontrolled disclosure.

If you are an executive or employee being asked to cooperate with your company’s internal investigation and you have questions, please contact Mulhall Law, LLC at (216) 586-4278 in Ohio, or (240) 630-0407 in Maryland.

Mulhall Law, LLC is a boutique law office with practices in Ohio and Maryland, providing businesses and individuals highly-focused legal advocacy and a collaborative attorney-client experience.  Clients’ needs and efficient resolution of litigation or transaction matters are the foundation of the practice philosophy.  With depth of experience and training at the country’s highest and most competitive tier of law schools, private law firms, Fortune 10 companies and federal law enforcement agencies, clients (big or small) secure the highest quality of legal representation at a cost only a boutique practice can provide.

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