Providers negotiating with doctors and other medical professionals who are bound by enforceable restrictive covenants is tricky business. By virtue of his/her/their position, these physicians may owe fiduciary duties to the...more
The attorney-client privilege protects confidential communications between clients and their attorneys made for the purpose of obtaining or providing legal advice. In Upjohn Co. v. United States, a seminal 1981 decision...more
For the first time since its 1981 opinion in United States v. Upjohn, the United States Supreme Court, in a review of the Ninth Circuit’s decision in In re Grand Jury, will examine the scope of the attorney-client privilege...more
Understanding the boundaries of legal privilege in corporate internal investigations is critical. When counsel, either internal or external, misunderstands these boundaries, the result can be disastrous....more
Suppose you are in-house counsel for a construction company. Your Guaranteed Maximum Price (“GMP”) is blown and the Owner has refused to execute any change orders during the Project. You know you are heading towards a claim....more
Boards of Directors and management at companies of all sizes face a common problem: they need to make decisions that are best for the company and in order to do so they need to know the facts — the pleasant and the unpleasant...more
As an initial step, an audit of an internal investigation program requires a detailed understanding of the operation of a company’s internal investigation program. ...more
Part 1 of this two-part series explored the five steps to consider before and at the start of any internal investigation. The next five steps focus on conducting and concluding the investigation and will help guide a...more
In Part 2 of our series on health care investigations, Mark Rush and John Lawrence continue the discussion on internal investigations. Specifically, the episode walks through how to conduct an internal investigation,...more
Notwithstanding the venerable status of the attorney client privilege and the important purposes it serves, the federal banking regulators and the Consumer Financial Protection Bureau have taken the position that they have...more
Institutions and organizations are increasingly expected to conduct a thorough, neutral investigation of allegations of impropriety, misuse of authority, and sexual harassment, among many other issues. No organization, public...more
In Upjohn states, corporations' privilege can protect (1) communications in which corporate employees at any hierarchical level give the company's lawyer facts she needs, and (2) such lawyer's advice given to any employees...more
Lawyers representing corporations should in nearly every circumstance provide an Upjohn warning to avoid accidentally creating attorney-client relationships with company employees. Upjohn v. United States, 449 US 383 (1981)....more
A recent decision out of the English High Court narrows the scope of the legal advice privilege, which will have important implications for US companies that have ties to the UK. ...more
In order to preserve the attorney-client privilege, counsel who conduct internal investigations begin employee interviews with an “Upjohn Warning”—a disclosure indicating that counsel represents the employer, not the...more
The Washington Supreme Court held in a 5-4 vote that attorney-client privilege does not apply to communications between corporate counsel and former corporate employees, even if the communications concern what the employees...more
The Yates Memo has many landscape-changing implications for corporate investigations, including the need for enhanced Upjohn warnings and the potential suppression of joint-defense agreements between corporations and their...more
The fallout at Penn State University in the wake of the Jerry Sandusky child-sexual-abuse scandal, including the victims’ suffering, Sandusky’s criminal conviction, the firing and subsequent death of legendary Coach Joe...more
Companies facing a crisis often turn to in house counsel to investigate the facts that precipitated the crisis. In house counsel’s first step often is to interview corporate employees with knowledge of those facts....more
Under the majority Upjohn approach, the attorney-client privilege can protect lawyers' communications with any level of corporate client employee — if the lawyers need the employees' factual information before giving their...more
Internal investigations into suspected employee wrongdoing are particularly tricky for in-house counsel, who must protect corporate confidentiality, be mindful of regulatory reporting requirements, and respect labor...more
On September 9, 2015, United States Deputy Attorney General Sally Yates released a memorandum titled “Individual Accountability for Corporate Wrongdoing,” the latest in a series of corporate prosecution guidelines written by...more