I Am Not Your Lawyer! But Hey, Tell Me Your Secret'

• Jurisdiction: United States,Federal
• Law Firm: Shearn Delamore & Co.
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Transport, Criminal Law, Health & Safety, Employment Litigation/ Tribunals, Marine/ Shipping, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
• Author: Mr Rajasingam Gothandapani, Nik Azila Shuhada Nik Abdullah, Justin Tong Wei Hang and Ally Ong Tze Xian
• Published date: 10 May 2023

A. Live scenario

Look, you are here as an employee investigated by the company.

I am a lawyer for the company, not yours.

But hey, you know what, you should tell me your secrets because you are an employee of the company, so whatever you are going to tell me will be protected by solicitors-client privilege.

B. Upjohn Warning

This, in essence, is what the Supreme Court of the United States termed as an "Upjohn" warning¹ , in conjunction with the Justices' grounds in the landmark decision of Upjohn Co. v. United States, 449 U.S. 383.

Across the Atlantic Ocean, Lady Smith sitting in the English Employment Tribunal in the United Kingdom also acknowledged the notion and importance of an "Upjohn" warning. In the words of Lady Smith, an "Upjohn" warning is routinely given in the United States prior to an interview with an employee of a company to ensure the protection of attorney-client privilege² .

Taking a step further, Her Ladyship even gave examples of how an "Upjohn" warning is administered.

• Please keep in mind that the [company's solicitor] represents the Company, and not any individual employee of the Company, including you. In other words, the [company's solicitor] are the Company's lawyers, and not your lawyers.
• Nevertheless, because the [company's solicitor] represents the Company and you are an employee of the Company, your interview with the [company's solicitor] is protected by the attorney-client privilege under the law, meaning that the Company cannot under most circumstances be forced to reveal to anyone what is discussed at your interview.
• At the same time, if you disclose what is discussed during your interview to anyone that attorney-client privilege can be lost. For this reason, it is important that you keep what we discuss today confidential. You should not discuss our conversations with anyone except the [company's solicitor].
• Because the [company's solicitor] represents the Company the attorney-client privilege belongs to the Company, and only the Company.

C. Attorney-client privilege

In Discoveries In Maritime Claims: (Part One) Pre-Trial Discovery and Specific Discovery of Documents, we discussed briefly about how a "privileged document/information" is not susceptible to a Discovery exercise.

Documents or information cloaked under the Attorney-client privilege (or better known as solicitor-client privilege in Malaysia) are one of those "privileged documents/information" that is not susceptible to a Discovery exercise.

In fact, there...