holding attorney-client privilege may protect communications between lower-level employees and corporate counsel because these employees “can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties”
How later courts described this case
- holding attorney-client privilege may protect communications between lower-level employees and corporate counsel because these employees “can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties”
- finding the employees “sufficiently aware that they were being questioned in order that the corporation could obtain legal advice” where the questionnaire indicated that the information was being gathered by the company’s “General Counsel,” the policy statement attached to the questionnaire “clearly indicated the legal implications of the investigation,” and the communications were treated as “highly confidential”
- holding that communications during internal investigation between corporate employees and counsel were protected by attorney client privilege because “the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice”
- stating that the court must look at the individuals’ specific duties to determine if the proponent has demonstrated that they are within the scope of the matters communicated and whether the evidence proves that each of those individuals is “sufficiently aware” that the communication is for the purpose of seeking or obtaining legal advice
Written by the judges who cited it.
Later courts went against this
Limited by Samaritan Foundation v. Superior Court, 173 Ariz. 426 (1993)
If Upjohn is indeed confined to its facts, the most salient is the I.R.S.’s failure to show that it could not obtain the information that it sought through alternative, less intrusive means.
Distinguished
Distinguished by Abramian v. President & Fellows of Harvard College, 14 Mass. L. Rptr. 230 (2001)
The principles of Upjohn are inapplicable when employees take a position adversarial to the corporation or where that identity of interest is lacking.
Distinguished by Judge Rotenberg Educational Center, Inc. v. Commissioner of Department of Mental Retardation, 424 Mass. 430 (1997)
Thus, while the department analogizes to Upjohn Co. v. United States, 449 U.S. 383 (1981), where the Supreme Court recognized that for a corporate lawyer to function effectively, it is often necessary for the lawyer to obtain information from middle and lower-level employees in order to advise the corporation appropriately, id. at 394, that case is inapposite where, as here, there has been no showing that all of thos…
The opinion
Chief Justice Burger,
concurring in part and concurring
in the judgment.
I join in Parts I and III of the opinion of the Court and in the judgment. As to Part II, I agree fully with the Court’s rejection of the so-called “control group” test, its reasons for doing so, and its ultimate holding that the communications at issue are privileged. As the Court states, however, “if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected.” Ante, at 393. Por this very reason, I believe that we should articulate a standard that will govern similar cases and afford guidance to corporations, counsel advising them, and federal courts.
The Court properly relies on a variety of factors in concluding that the communications now before us are privileged. See ante, at 394-395. Because of the great importance of the issue, in my view the Court should make clear now that, as a *403 general rule, a communication is privileged at least when, as here, an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment. The attorney must be one authorized by the management to inquire into the subject and must be seeking information to assist counsel in performing any of the following functions: (a) evaluating whether the employee's conduct has bound or would bind the corporation; (b) assessing the legal consequences, if any, of that conduct; or (c) formulating appropriate legal responses to actions that have been or may be taken by others with regard to that conduct. See, e. g., Diversified Industries, Inc. v. Meredith, 572 F. 2d 596, 609 (CA8 1978) (en banc); Harper & Row Publishers, Inc. v. Decker, 423 F. 2d 487, 491-492 (CA7 1970), aff’d by an equally divided Court, 400 U. S. 348 (1971); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1163-1165 (SC 1974). Other communications between employees and corporate counsel may indeed be privileged — as the petitioners and several amici have suggested in their proposed formulations * — but the need for certainty does not compel us now to prescribe all the details of the privilege in this case.
Nevertheless, to say we should not reach all facets of the privilege does not mean that we should neglect our duty to provide guidance in a case that squarely presents the question in a traditional adversary context. Indeed, because Federal Rule of Evidence 501 provides that the law of privileges “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience,” this Court has a special duty to clarify aspects of the law of privileges properly *404 before us. Simply asserting that this failure “may to some slight extent undermine desirable certainty,” ante, at 396, neither minimizes the consequences of continuing uncertainty and confusion nor harmonizes the inherent dissonance of acknowledging that uncertainty while declining to clarify it within the frame of issues presented.
See Brief for Petitioners 21-23, and n. 25; Brief for American Bar Association as Amicus Curiae 5-6, and n. 2; Brief for American College of Trial Lawyers and 33 Law Firms as Amici Curiae 9-10, and n. 5.