Citation. 449 U.S. (1981)
The United States attempts to get a hold of a company’s questionnaire but the company refuses, claiming that the questionnaire is covered under attorney-client privilege.
In the corporate context, the attorney-client privilege applies to high-level employees with the authority to act on legal advice, as well as any of the employees who provide information to the attorney so that she may give legal advice.
In light of an audit showing illegal payments to foreign government officials by its employees, Defendant Upjohn’s general counsel sent a questionnaire to Upjohn employees requesting information concerning the payments. The Plaintiff, United States IRS issued a summons requesting the questionnaires. Defendant Upjohn refused on the basis that attorney-client privilege applied to the questionnaires.
Are questionnaires sent to employees by a company’s general counsel protected by attorney-client privilege?
Yes, in the corporate context the attorney-client privilege applies to all employees, including lower level ones, who provide factual information to an attorney so that she may give legal advice. The United States Court of Appeals for the Sixth Circuit is reversed and the questionnaires are protected communications under the attorney-client privilege.
1. The information of lower level employees is often required in order for the attorney to give sound legal advice.
2. The lower courts’ rulings that limit attorney-client privilege to those that act on legal advice chills other employees from giving necessary information to the company’s general counsel.
3. Lower level employees have the potential in their work to involve their company in legal matters and therefore may sometimes have requisite information necessary for an attorney to provide legal advice.
4. Therefore, the questionnaires filled out by Defendant Upjohn’s employees are protected by attorney-client privilege because the employees knew it was going to the general counsel in order for him to give legal advice.
5. However, the facts in the questionnaires are not privileged and the government may access the facts by questioning employees directly.
6. The United States Court of Appeals for the Sixth Circuit is reversed and the questionnaires are protected communications under the attorney-client privilege.