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In-House Counsel
Internal investigations have always posed vexing issues for in-house counsel. Investigations arise in many different ways. They can involve relatively small, to bet-the-company risks. In-house counsel need to make difficult decisions on matters such as scope and purpose of the investigation, who will conduct the investigation, how costs will be controlled, and the work product that they will generate.
But perhaps the toughest issue pertains to protecting the attorney-client and other applicable privileges. By now, most counsel are familiar with the risks associated with attorneys, whether in-house or outside counsel, interviewing employees. To ensure that the company maintains its attorney-client privilege, and that they do not unintentionally create an attorney-client relationship with the employee, company counsel must give “corporate Miranda” or Upjohn warnings, which take their name from Upjohn Co. v. United States, 449 U.S. 383 (1981).
Privilege issues in internal investigations rarely end with an appropriate Upjohn warning. Further complications loom, including the effect of disclosure to a governmental agency, the effect of involvement of third-party contractors such as investigators and e-discovery personnel, the appropriateness of conditioning an employee's continued employment on participation and confidentiality, the viability of partial or selective waiver in your jurisdiction, and many others.
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