Administrative agencies and prosecutors have adopted formal and informal measures to push corporations to establish compliance programs, to disclose wrongdoing voluntarily, and to cooperate with government investigations, creating what some commentators refer to as a culture of cooperation. Key to internal investigations are employee interviews by counsel.
Employees, especially senior employees, may assume that the lawyers representing their organizational employers represent them as well in matters relating to their work. To avoid this misunderstanding, both in-house and outside counsel now use “corporate Miranda warnings” or “Upjohn warnings.” In law enforcement interrogation, the Miranda warning is an antidote to the coercive effect of a custodial setting. In a corporate internal investigation, the corporate Miranda warning is an antidote to employee misunderstanding of the lawyer’s role and whom the lawyer represents. In both contexts, the warnings are safeguards for the person being questioned against potential over-reaching by the questioner.
In this column, we explore the ethical rules that bear on conducting an internal investigation and other issues concerning the use of corporate Miranda warnings. We conclude that counsel conducting an internal investigation for a corporate client should give a warning to each employee at the start of the interview and memorialize the warning. While such warnings may cause some employees to withhold information, they ensure that employees understand that the lawyer does not represent them and that the organization client controls the disclosure of information.
Legal Profession, Ethics/Professional responsibility, Miranda
Place of Original Publication
25 (2) Criminal Justice 47 (2010)
Joy, Peter A. and McMunigal, Kevin C., "Corporate 'Miranda' Warnings" (2010). Faculty Publications. 39.