Full Disclosure: 9th Circuit Restores Conventional Wisdom on Privilege

General counsel face few responsibilities more sensitive and less comfortable than managing an internal investigation. In the fundamental interest of protecting the corporate entity, full cooperation with regulators and prosecutors is often the best course. But given the government's growing proclivity to levy charges against individuals, full cooperation may not be in the best interest of the employees and executives involved.

"That particular tension is one of the most difficult things that any in-house counsel can manage," says Christopher Madel, a white-collar partner at Robins, Kaplan, Miller & Ciresi. "It's never a black-and-white issue."

Relying on state law, the U.S. District Court for the Central District of California agreed, and suppressed the statements. The 9th Circuit, however, found the ruling at odds with the stricter boundaries of privilege under federal common law and reversed and remanded the matter for trial.

While the 9th Circuit decision is an effective return to the status quo, the case underscores the need for clarity and consistency when administering Upjohn warnings.

For that reason, Dee favors reading a standard script to interview subjects, much like an actual Miranda warning, and recording in the attorney's notes that the warning has been issued and understood so there is a uniform record across the investigation. The more ubiquitous the warning, the less chance for subjects to be confused or misled about privilege and disclosure.

"It's not just a matter of checking off a box," Dee says. "It's essential that you're clear and there's no confusion about who you're representing."

Contributing Author

Steven Andersen

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