Foley Attorneys Explore Upjohn Warnings in Health Care Compliance Investigations

Foley & Lardner LLP attorneys Mark Neuberger, Kate Pamperin, and Lawrence Vernaglia authored the article, “Whose Lawyer Is it Anyway: Understanding the Upjohn Warning in Health Care Compliance Investigations,” published in the Journal of Health Care Compliance.

In the article, the authors explore the unique investigatory needs of health care organizations, particularly the complex dynamics of attorney-client privilege during internal investigations. They highlight the importance of the Upjohn warning, which informs employees that while their communication with the lawyer is privileged, the privilege ultimately belongs to the company, not the individual. The authors also provide practical guidance for attorneys on how to navigate ethical and legal boundaries when conducting internal investigations, emphasizing the need to simultaneously build rapport with interviewees while maintaining transparency around their role and the limitations of confidentiality.

“The ability to juggle the necessity of an in-depth Upjohn warning with the desire to learn as much information as possible from those who possess knowledge rele­vant to a company’s internal investigation is a learned and valuable skill,” the authors conclude.