Corporations and other organizations faced with potential criminal investigations and enforcement proceedings need to be able to conduct their own investigations to learn the facts and make informed judgments about how to respond. Typically, organizations turn to counsel to undertake such investigations, not only because their expertise as lawyers presumably ensures that a thorough and focused investigation of the underlying facts will be capably handled but also because an investigation, and the advice which follows it, will be protected from compelled disclosure to third parties by the attorney-client privilege and the attorney work product protection. Upjohn v. United States, 449 U.S. 383 (1981).
Organization Attorney-Employee Interviews
In conducting investigations, counsel are confronted with difficult ethical choices when interviewing individual employees of an organization. On the one hand, counsel is certainly required to give so-called Upjohn warnings to an employee, making it clear that counsel represents the company and not the employee being interviewed and that any attorney-client privilege attached to the conversation belongs to the organization. On the other handСparticularly given the current “culture of waiver” fostered by the policies of the Department of Justice and other federal agenciesСcounsel is anxious to extract as much information as possible, so that the organization is viewed as “cooperative” by the government. That places pressure on the organization’s attorney to walk a very fine line. It is distinctly possible that an employee may personally be in legal jeopardy, particularly if (as is often the case) the organization decides to share its investigation’s results with the government.
To serve what they perceive as their client’s interests, some attorneys only give perfunctory Upjohn warnings to try to get employees to open up, omitting advice that might cause an employee not to divulge further information. Counsel is much more likely to emphasize that he or she is “just trying to figure out what happened” as opposed to informing an employee that “you may want to think about getting your own lawyer.”
When an employee directly asks counsel, “Should I have my own lawyer?,” I am amazed, but no longer surprised, by how many attorneys feel that the correct answer is, “I represent this company, and therefore I cannot provide you advice on that issue.”
What the Model Rules Advise
Rule 1.13(f) of the American Bar Association’s Model Rules of Professional Conduct requires that “[i]n dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.” (Local model rules contain similar language.) Comment 10 to the Model Rule adds: “There are times when the organization’s interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyers finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation.” (Emphases added.) In addition, Model Rule 4.3 states that “[t]he lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.” (Emphasis added.)
Furthermore, Model Rule 4.4(a) requires that “[i]n representing a client, a lawyer shall not use means . . . or use methods of obtaining evidence that violate the legal rights of . . . a [third] person.” Because an organization often demands that an employee submit to an interview as a condition of continued employment, despite that it already knows that it likely intends to turn over the results to the government, the organization is essentially demanding a waiver of the employee’s Fifth Amendment rights. (Interestingly, the Supreme Court found in Garrity v. New Jersey, 385 U.S. 493 (1967), that the government cannot make such a demand on its own employees.) This makes it even more clear that the organization’s interests are adverse to those of the employee and that the organization’s attorney should advise the employee not only of the use to which the interview will be put but also of the need for the employee to have his or her own attorney.
I often hear attorney speakers recommend that organization counsel should simply reply that they cannot provide advice when asked by employees during investigation interviews whether they need attorneys. Putting aside what I believe are the clear ethical requirements of the Model Rules, I always ask the following question: “What advice would you give a close friend or a member of your family in exactly the same situation?” I suggest that the answer is quite clear: “You’re damned right you need a lawyer!” Why are employees of organizations entitled to any less candor?