Attorney–Client Privilege

Following our recent post on disclosures to the EPA, this week we’re going to look at disclosures to outside auditors, often in the context of internal investigations, and steps to take to limit any waiver of attorney work-product protection.  Here we go . . .

Work-product protections are not automatically waived by disclosure to

Henry Friendly still has my vote for the title of greatest American judge who ever served at any level. It’s the country’s misfortune that he never served on the U.S. Supreme Court. He did, however, spend nearly thirty years on the United States Court of Appeals for the Second Circuit, writing more than 1,000 opinions and carving out a reputation as one of the country’s most influential jurists. On March 10, 1986, thirty-two years ago today, Friendly died.

I’ve written at some length elsewhere about my definitely-not-unhealthy devotion to a long-deceased judge on an intermediate appellate court who, with a few exceptions, did not weigh in on the most hotly contested constitutional questions of the day. But Friendly’s reputation was built on his alarming analytical acuity, the lucidity of his writing, and his record of pragmatic decisions. He also had a great eye for talent: his law clerks included Chief Justice John Roberts, federal appellate judges Merrick Garland, A. Raymond Randolph, William Bryson, Pierre Leval, and Michael Boudin, and a slew of influential lawyers and academics including Bruce Ackerman, Larry Kramer, and Ruth Wedgewood.

For purposes of this blog, Friendly wrote several decisions addressing the scope of the attorney–client privilege and reviewing convictions for white collar crimes in an era when prosecutions for such crimes were relatively rare. Two of those decisions are discussed below and recounted in detail in David Dorsen’s excellent biography of Friendly.


Continue Reading This Day in White Collar History: Remembering Henry Friendly

On January 13, 1981, the Supreme Court decided Upjohn Co. v. United States. Thirty-seven years later, it’s hard to think of a judicial decision that has had a more significant effect on internal investigations. The Court’s opinion made no mention of any particular warning procedure, instead focusing on the application of the attorney-client privilege to corporate clients. But it prompted the near-universal practice of lawyers who are conducting internal investigations advising corporate employees that they represent the company, rather than the employee, and that the company may waive the privilege at any time. There are countless articles highlighting the importance of providing the Upjohn warning while conducting internal investigations. I won’t rehash those points here. Instead I want to introduce a few fun factoids about the case itself, and the players involved in litigating it.
Continue Reading This Day in White Collar History: The Supreme Court Decides Upjohn