PR Outline 4

Upjohn Co. v.
United States
Facts: Upjohn had reason to believe that its subsidiaries had made illegal payments to foreign
government officials. Attorneys sent questionnaires to employees worldwide seeking information
about the payments. The IRS subpoenaed the answers and the interviews. Upjohn resisted, citing
attorney-client privilege. If communications with the employees were privileged, the court could
not order Upjohn to reveal them to the IRS.
The court of appeals, in this case, 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, which can be said to possess an
identity analogous to the corporation as a whole. This view overlooks the fact that 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. In terms of
a corporation, the client is empty
Issue:
Rule: Attorney-client privilege’s purpose is to encourage full and frank communication between
attorneys and their clients and promote broader public interest in the observance of law and
administration of justice.
Holding: Giving a narrow scope to the attorney-client privilege makes it difficult for corporate
attorneys to formulate sound advice and threatens the valuable efforts to ensure compliance with
the law.
Reasoning: The test the lower court applied restricts the availability of the privilege to those
officers who play a substantial role in deciding and directing a corporation's legal response.
● Lower court control test = too narrow and unpredictable.
○ Makes it difficult for corporate attorneys to formulate sound advice when their
client is faced with a specific legal problem and also threatens to limit the
valuable efforts of corporate counsel to ensure their client’s compliance with the
law.
● An uncertain privilege is not a privilege at all.
Class Four
Exceptions to Privilege or Confidentiality
1. Self-Defense and Legal Claims: Rule 1.6(b)(3)
A lawyer may reveal confidential information to the extent the lawyer reasonably
believes necessary:
● To establish a claim or defense on behalf of the lawyer in a controversy between
the lawyer and the client;
● To establish a defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the lawter was involved; or
● To respond to allegations in any proceeding concerning the lawyers representation
of the client.
2. Waiver
● Attonryes must abide by 1.6 confidentitaly. If they dont, discipline may follow.
● Clients can waive confidentitaly - Rule 1.6(a)
○ Client gives informed consent
○ The disclosure is implied authorized in order to carry out the
representation
● Clients can waive the privilege, as well as attorneys. If they do, the client cannot
claim the privilege.
● Waiver may be explicit or implicit, accidental or intentional. It may be implicit
when the client testifies to his good faith belief in the lawfulness of his conduct.
The fairness doctrine requires disclosure of other communications tending to
contradict him, but not all communications are therefore waived. It may also be
waived when communications are revealed to a third party.
3. To prevent reasonably certain death or substantial bodily harm - Rule 1.6(b)(1)
● A few states require lawyers to reveal confidential information to prevent serious
violence or, in a few places, to prevent significant financial harm from fraud.
4. The Crime-Fraud Exception: Rectification
● Rule 1.6(b)(3) (to rectify a crime/fraud + reasonably certain to cause financial
damages + lawyers’ services were used).
● Communications are not privileged whent he client has consulted the lawyer in
order to further or advance a crime.
5. Future crimes or Frauds: Prevention
● Rule 1.6(b)(2) (to prevent crime/fraud + resulting in financial damages + lawyers’
services were used?.
6. The Fiduciary Exception
● A beneficiary may be entitled to privileged/confidential communications with the
trustee’s attorney (eg. the trustee tells his attorney he stole money from the trust).
7. Noisy Withdrawal
● A withdrawal from representation coupled with a retraction. A noisy withdrawal
is one where the attorney retracts her own representation that the client may be
using for illegal purposes.
8. Lawyers and Social Media
● There is no right to reveal confidential information under rule 1.6(b)(5)
(responding to allegations in ayn preceding concerning the lawyer’s
representation of a client) on social media.
9. Court order or Other law
● Rule 1.6(b)(6)

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Upjohn Co. v.

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