April 30, 2012 Articles

The Benefits of a Miranda-Type Approach to Upjohn Warnings

Employees should know that lying during an internal investigation could result in criminal penalties, even if it causes the employees to be less forthcoming

by Sehyung Daniel Lee

Prosecutors have begun to charge corporate employees with obstruction of justice when an employee lies or tampers with evidence during an internal corporate investigation, even if no government investigation of the company is pending at the time. Because employees can now be charged with a crime that carries penalties including up to 20 years in prison, investigating attorneys may want to consider expanding the Upjohn warnings provided to corporate employees to include a warning derived from the criminal Miranda warning context, notifying them that lying or providing false documents in an internal investigation can lead to criminal punishment.

Following the seminal decision in Upjohn Co. v. United States, 449 U.S. 383 (1981), attorneys conducting internal corporate investigations typically provide certain warnings to corporate employees they interview, including that counsel is working for the employer, not the employee; the attorney-client privilege is in effect; and the privilege is held by the employer, and the employer alone can decide to waive it. In light of increasing prosecutions of employees, there are two good reasons why investigating counsel should now include a criminal Miranda-type warning to its Upjohn warnings: first, as matter of fairness to inform employees that they could be committing a crime; and, second, to prevent employees from muddying investigations by providing misinformation.

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