Upjohn warnings are named after Upjohn v. United States, 449 U.S. 383 (1981), the case in which the Supreme Court made clear that the corporate attorney-client privilege applied to a much wider group of Constituents than the corporation’s “control group.” See more about preserving attorney-client privilege at blog at www.WinWinHR.com

1.
________________________________________________________________________________________________
Template
of
Upjohn1
memorandum
to
be
given
to
all
non-­attorneys
assisting
legal
counsel
in
an
internal
investigation.
To:
Non-­‐Attorney
Assisting
Legal
Counsel
in
an
Internal
Investigation
From:
Legal
Counsel
Date:
Re:
I
am
legal
counsel
for
__________
(insert
company
name)
and
have
been
retained
to
provide
legal
counsel
to
the
company
regarding
______________.
I
have
asked
that
you
assist
me
in
gathering
relevant
facts
in
order
for
me
to
provide
such
legal
advice.
In
gathering
such
relevant
facts,
you
will
at
all
times
be
working
at
my
direction
and
your
communications
with
me
are
protected
by
the
attorney-­‐client
privilege.
The
attorney-­‐client
privilege
belongs
solely
to
the
Company
and
not
you.
That
means
that
only
the
Company
may
elect
to
waive
the
attorney-­‐client
privilege
and
reveal
our
discussion
to
third
parties.
In
order
for
this
discussion
to
be
subject
to
the
privilege,
it
must
be
kept
in
confidence.
All
of
your
communications
with
me
regarding
this
investigation
should
be
marked
“Prepared
at
Request
of
Counsel.
Attorney-­‐Client
Privileged.
Attorney
Work
Product.”
All
documents
related
to
this
investigation
should
be
retained
in
a
separate
location
and
treated
with
confidence.
You
should
not
discuss
this
investigation
with
anyone
other
than
me
without
my
pre-­‐approval.
You
should
advise
all
individuals
you
interview
during
the
gathering
of
relevant
facts
of
the
attorney-­‐client
privilege.
Specifically,
you
should
advise
all
individuals
interviewed
as
follows:
1
Upjohn
warnings
are
named
after
Upjohn
v.
United
States,
449
U.S.
383
(1981),
the
case
in
which
the
Supreme
Court
made
clear
that
the
corporate
attorney-­‐client
privilege
applied
to
a
much
wider
group
of
Constituents
than
the
corporation’s
“control
group.”

2. I
am
working
at
the
direction
of
the
Company’s
legal
counsel
and
am
conducting
this
interview
to
gather
facts
to
give
to
the
Company’s
lawyer.
The
Company’s
lawyer
will
rely
on
these
facts
in
order
to
provide
legal
advice
for
____________________
(insert
name
of
company).
This
interview
is
part
of
an
investigation
to
determine
the
facts
and
circumstances
of
_____(insert
brief
description
of
allegation(s))
in
order
to
advise
the
company
how
best
to
proceed.
Your
communications
with
me
are
protected
by
the
attorney-­client
privilege.
The
attorney-­client
privilege
belongs
solely
to
the
Company
and
not
you.
That
means
that
only
the
Company
may
elect
to
waive
the
attorney-­client
privilege
and
reveal
our
discussion
to
third
parties.
In
order
for
this
discussion
to
be
subject
to
the
privilege,
it
must
be
kept
in
confidence.
In
other
words,
with
the
exception
of
your
own
attorney,
you
may
not
disclose
the
substance
of
this
interview
to
any
third
party,
including
other
employees
or
anyone
outside
of
the
company.
You
may
discuss
the
facts
of
what
happened
but
you
may
not
discuss
this
discussion.
Do
you
have
any
questions?
Are
you
willing
to
proceed?