Unregulated Internal Investigations: Achieving Fairness for Corporate Constituents

54 Pages Posted: 6 Dec 2012 Last revised: 5 Feb 2013

Bruce A. Green

Fordham University School of Law

Ellen S. Podgor

Stetson University College of Law

Date Written: December 3, 2012

Abstract

This Article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief to these corporate employees. This Article suggests that courts need to move beyond the Upjohn decision and recognize this new landscape. It advocates for corporate fair dealing and provides a multi-faceted approach to achieve this aim. Ultimately this Article considers how best to level the playing field between corporations and their employees in matters related to the corporate internal investigation.

Keywords: corporate internal investigations, attorney-client privilege, Upjohn, corporate fair dealing, corporate criminal liability, white collar crime, ethics

JEL Classification: K14, K22, K20, K42

Suggested Citation

Green, Bruce A. and Podgor, Ellen S., Unregulated Internal Investigations: Achieving Fairness for Corporate Constituents (December 3, 2012). Boston College Law Review, Vol. 54, 2013; Fordham Law Legal Studies Research Paper No. 2184348; Stetson University College of Law Research Paper No. 2012-22. Available at SSRN: https://ssrn.com/abstract=2184348

Bruce A. Green

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

Ellen S. Podgor (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727 562 7348 (Phone)

HOME PAGE: http://www.law.stetson.edu/tmpl/faculty/memberProfile.aspx?id=88

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