Lawyers representing corporations should in nearly every circumstance provide an Upjohn warning to avoid accidentally creating attorney-client relationships with company employees. Upjohn v. United States, 449 US 383 (1981). Fortunately, lawyers who do not provide such warnings (or who cannot prove that they did so) can usually also rely on what is called the Bevill doctrine. In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1986).
In United States v. Blumberg, Crim. A. No. 14-458 (JLL), 2017 U.S. Dist. LEXIS 47298 (D.N.J. Mar. 27, 2017), defendant Blumberg claimed that the Bracewell law firm represented both his employer and him individually – meaning that he co-owned the privilege protecting his communications with Bracewell lawyers. The court noted competing affidavits about whether Bracewell lawyers gave an Upjohn warning. The court therefore applied “the five-factor Bevill analysis.” Id. at *12. The Bevill doctrine requires employees seeking to claim personal privilege protection for communications with the company’s lawyer to prove on a communication-by-communication basis that: (1) they sought legal advice from the lawyer; (2) if so, they “‘made it clear that they were seeking legal advice in their individual rather than in their representative capacities'”; (3) the company lawyer agreed to provide such individual advice regardless of possible conflicts; (4) such communications were confidential; and (5) the communications’ substance “‘did not concern matters within the company or the general affairs of the company.'” Id. at *7 (citation omitted). In assessing the fifth factor, the court acknowledged Blumberg’s claim that he and Bracewell lawyers discussed his “‘potential for criminal exposure'” – and that the lawyers said he was a “‘fact witness.'” Id. at *14 (internal citation omitted). The court concluded that this one possible exchange did not allow Blumberg to assert a blanket claim of “privilege over all statements made during the Bracewell meetings.” Id. at *14-15. The court ultimately held that the company rather than Blumberg owned the privilege covering his communications with the Bracewell lawyers, and thus could waive it (presumably over his objection).
Corporations’ lawyers should carefully provide Upjohn warnings, but can also rely on the Bevill backstop.