Upjohn Warnings, the Attorney-Client Privilege, and Principles of Lawyer Ethics: Achieving Harmony
Grace M. Giesel
University of Louisville - Louis D. Brandeis School of Law
November 30, 2010
University of Miami Law Review, Vol. 65, 2010
University of Louisville School of Law Legal Studies Research Paper, 2011-03
Individuals who are related to an entity, such as a corporation, sometimes claim that when they communicated with the entity lawyer, they honestly and reasonably believed that the lawyer represented them. Thus, they claim that the attorney-client privilege applies and protects their statements from disclosure even when the entity has waived its privilege with regard to the communications. Many courts have given privilege claims by entity individuals harsh treatment. These courts, in the interest of protecting the entity, have required individuals to make proofs beyond that required by the traditional definition of the attorney-client privilege. In addition, these courts have ignored the traditional approach to the recognition of an attorney-client relationship which requires giving value to the honest and reasonable belief of the person in the position of client. Courts have erred by creating these special rules to protect the entity in this situation. This approach has contributed to an environment in which lawyers often do not use their best efforts to dispel the confusion of entity individuals about the lawyer’s relationship to the individual and the protections afforded the communications. This is so even though the tenets of professional responsibility provide a background requirement of honesty and forthrightness for lawyers. Courts should apply the traditional definition of the attorney-client privilege and should honor the traditional approach to recognition of an attorney-client relationship. Lawyers can protect their entity clients by giving very clear warnings, often called Upjohn warnings, to the individuals. Individuals who are told that the lawyer does not represent them, and who are told that communications with the lawyer are not privileged, will have a difficult time arguing that they honestly and reasonably believed that the lawyer represented them and that the communications are privileged. The warning preserves the entity’s right to control the disclosure of the communications. More important, however, the individual is dealt with forthrightly and not misled. Lastly, this conduct follows the teachings of the tenets of professional responsibility for lawyers.
Number of Pages in PDF File: 61
Keywords: Upjohn Warnings, Attorney-Client Privilege, Ethics
JEL Classification: K00, K40Accepted Paper Series
Date posted: December 2, 2010 ; Last revised: February 3, 2011
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