Corporate counsel’s internal investigations often reveal that a third-party consultant maintains relevant information. Yet, in-house and outside counsel have relatively little instruction on whether to interview these consultants and, if so, whether an Upjohn warning is necessary. Courts have recently addressed two related concepts, however, that provide excellent guidance on this front.
Courts, notably the 9th Circuit, have reiterated the importance of providing Upjohn warnings to corporate employees prior to conducting an interview. In United States v. Ruehle, 583 F.3d 600 (9th Cir. Cal. 2009), for example, the Ninth Circuit noted the “treacherous path” that counsel take when conducting internal investigations and called counsel’s lack of Upjohn warnings “troubling.” And relatedly, courts have increasingly held that the corporate attorney-client privilege covers consultants considered the “functional equivalent” of corporate employees. Together, these concepts provide corporate counsel informed guidance when interviewing consultants as part of an internal investigation.
In my recent article, Upjohn Warnings and External Consultants, published by InsideCounsel, I explore these concepts in greater detail. The article, accessible here, discusses the importance and preferred content of Upjohn warnings. It also discusses the “functional equivalent of employee” test, including how Model Rule 1.3 and its official comments dictate that corporate counsel provide Upjohn warnings to consultants meeting the test.
For further elaboration on the functional equivalent employee test, see my post discussing a recent ruling that a Google consultant was a “functional equivalent of an employee” for purposes of the attorney-client privilege coverage. You may also find helpful my recent post regarding the discoverability of witness statements, as these issues will apply to external consultants.
My thanks to InsideCounsel for permission to reprint my article in this post.