- United States
Upjohn discovered that subsidiary payments were made to the
benefit of foreign government officials to secure government
Upjohns account informed Mr. Thomas who was Upjohns VP,
Secretary and General Counsel.
Thomas conducted an internal investigation using a
The questionnaire went out to all Foreign managers which
contained a disclosure concerning possible illegal payments to
letter accompanied the questionnaire indentifying Thomas as the
companys general counsel.
Manager were instructed that this investigation was highly
confidential and not to be discussed outside of Upjohn
Responses were to be sent directly to Thomas.
33 Officers were intervied.
Upjohn voluntarily submitted a preliminary report to the
security and exchanges commission and to the IRS.
The IRS issued a summons demanding ALL responses to
questionnaire and ALL notes of the interview.
Upjohn refused based on the attorney-client privilege.
Lower Court - Denied Protection
Federal Rule of Evidence 501
Provides that "the privilege of a witness . . . shall be
governed by the principles of the common law as they may be
interpreted by the courts of the United States in light of
reason and experience."
Its purpose is to encourage full and frank communication between
attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of
Counselor needs to know all
The lawyer-client privilege rests on the need for the advocate
and counselor to know all that relates to the client's reasons
for seeking representation if the professional mission is to be
Admittedly complications in the application of the privilege
arise when the client is a corporation, which in theory is an
artificial creature of the law, and not an individual.
- privilege applies when the client is a corporation
This Court has assumed that the privilege applies when the
client is a corporation and the Government does not contest the
Court of Appeals - Only senior management can possess a
Considered the application of the privilege in the corporate
context to present a "different problem," since the client was
an inanimate entity and "only the senior management, guiding and
integrating the several operations, . . . can be said to possess
an identity analogous to the corporation as a whole."
Control Group Test
The first case to articulate the so-called "control group test"
adopted by the court below.
If the employee making the communication, of whatever rank he
may be, is in a position to
control or even to take a substantial part in a decision about
any action which the corporation may take upon the advice of the
attorney, . . . then, in
effect, he is (or personifies) the corporation when
he makes his disclosure to the lawyer and the privilege would
- Overlooks who the privilege extends too
Such a view, we think, overlooks the fact that the privilege
exists to protect not only the giving of professional advice to
those who can act on it but also the giving of information to
the lawyer to enable him to give sound and informed advice.
- Step 1) Ascertain the factual background and sifting through
The first step in the resolution of any legal problem is
ascertaining the factual background and sifting through the
facts with an eye to the legally relevant.
In the case of the individual client
the provider of information and the person who acts on the
lawyer's advice are one and the same.
It will frequently be employees beyond the control group as
defined by the court below -- "officers
and agents . . . responsible for directing [the
company's] actions in response to legal advice" -- who will
possess the information needed by the corporation's lawyers.
Middle-level -- and indeed lower-level
-- employees can, by actions within the scope of their
employment, embroil the corporation in serious legal
difficulties, and it is only natural that these employees would
have the relevant information needed by corporate counsel if he
is adequately to advise the client with respect to such actual
or potential difficulties.
- Control Group Test - Frustrates Privilege
The control group test adopted by the court below thus
frustrates the very purpose of
the privilege by discouraging the communication of relevant
information by employees of the client to attorneys seeking to
render legal advice to the client corporation.
- Advice might be more significant to noncontrol group
The attorney's advice will also frequently be more significant
to noncontrol group members than to those who officially
sanction the advice, and the control group test makes it
more difficult to convey full
and frank legal advice to the employees who will put into effect
the client corporation's policy.
Communication at Issue
- Employees were aware of legal advice
The communications concerned matters within the scope of the
employees' corporate duties, and the employees themselves were
sufficiently aware that they were being questioned in order that
the corporation could obtain legal advice.
- Questionnaire indicated legal implications
statement of policy accompanying the questionnaire clearly
indicated the legal implications of the investigation. The
policy statement was issued "in order that there be no
uncertainty in the future as to the policy with respect to the
practices which are the subject of this investigation."
Court of Appeals - Declined the extend attorney-client privilege
The Court of Appeals declined to
extend the attorney-client privilege beyond the limits of the
control group test for fear that doing so would
entail severe burdens on discovery and create a broad "zone of
silence" over corporate affairs.
- Puts adversary in no worse position
Application of the attorney-client privilege to communications
such as those involved here, however, puts the adversary in no
worse position than if the communications had never taken place.
- Only protects the communications, not the underlying facts
The privilege only protects disclosure of communications; it
does not protect disclosure of the underlying facts by those who
communicated with the attorney:
[The] protection of the privilege
extends only to communications and not to
facts. A fact is one thing and a communication
concerning that fact is an entirely different thing.
The client cannot be compelled to answer the question, 'What did
you say or write to the attorney?' but may not refuse to
disclose any relevant fact within his knowledge merely because
he incorporated a statement of such fact into his communication
to his attorney.
- Communications Covered by Attorney-Client Privilege
Questionnaire results - Yes.
Attorney Work Product - Yes. (Court of Appeals, tried to say
Tax Summon - Yes.
- Disclosing work product is disfavored
Forcing an attorney to disclose notes and memoranda of
witnesses' oral statements is particularly disfavored because it
tends to reveal the attorney's mental processes.