Warning the Witness

At the Compliance Week 2010 conference, David Seide was nice enough to give me a copy of his new book: Warning the Witness: A Guide to Internal Investigations and the Attorney-Client Privilege. David co-wrote the book with Gary Collins, Managing Director & Director of Compliance at GE Energy Financial Services.

Since the DOJ, SEC and other agencies focusing on financial crimes, it is important to understand how an employee investigation is affected by the attorney-client privilege. This book lays out the legal background.

Internal investigations get tricky when you are using outside counsel or in-house counsel that the employee is used to getting legal advice from. They have some expectation that the lawyer is their lawyer and the information is confidential. We saw those problems with attorney-client privilege and internal investigations in some recent cases.

The tricky part is that since the lawyers work for the company, the company holds the right to waive the attorney-client privilege.  Even beyond the privilege there is a duty of confidentiality that could further limit the necessary disclosure of information during an investigation.

Collins and Seide do a great job of laying out the legal background and then turning the legal issues into recommended best practices. The book also has extensive appendixes containing the relevant model rules of professional conduct and Department of Justice memoranda.

If you want more detail on the contents, I have included the table of contents at the end of this post.

They have a great model corporate miranda that sets the stage for an employee interview. It’s key to make sure that the employee understands it, even though is not common practice to have them sign it.

The book is a great addition to your bookshelf if you are involved in employee investigations.  It’s available from the American Bar Association web store.

Table of Contents

  • Chapter I
    • Introduction
  • Chapter II
    • The Attorney-Client Privilege
    • Introduction
    • Relevant Principles Underlying the Attorney-Client Privilege
    • What Is the Privilege?
    • Elements
    • Formation of the Attorney-Client Relationship
    • Application to the Corporate Context
    • Duty of Confidentiality to Prospective Clients
    • Elements
    • Application to the Corporate Context
  • Chapter III
    • Upjohn and Its Impact on the Attorney-Client Privilege
    • The Corporate Attorney-Client Privilege Prior to Upjohn
    • The Upjohn Decision
  • Chapter IV
    • Formalizing Witness Warnings
    • Codification through the ABA Model Rules
    • ABA Rule 1.13(f)
    • ABA Rule 4.3 21
    • The Relevance of the Model Rules to Upjohn Warnings
    • Adoption of the Model Rules by Various Jurisdictions
    • Illustrative Post-Upjohn Cases
  • Chapter V
    • Current Witness Warning Practices
  • Chapter VI
    • Recommended Best Practices
    • Suggested Witness Warning
    • Recommended Procedures to Follow
    • Counsel Interviewing Constituents
    • Other Issues for Consideration Constituents Approaching Counsel
    • Supplementing Oral Warnings
    • “Do I need a lawyer?”
    • “What is my status? Is there a conflict of interest?”
    • Separate Counsel for Constituents
    • “What if I refuse to cooperate in this investigation?”
    • Third-Party Uses of Information
    • Confidentiality of Communications Between Counsel and the Constituent
    • Joint Representation of the Corporation and the Individual