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UpJohn v. United States Case Brief

Summary of UpJohn v. United States, 449 U.S. 383 (1981)

Relevant Facts:  Certain foreign subsidiaries of the parties, made questionable payments to foreign govts to secure business.  The main offices directed their counsel to interview those employees and advise them on acceptable courses of conduct.  The corporation thereafter voluntarily submitted a report to the Securities and Exchange Comm=n disclosing the questionable payments, which in turn transmitted a copy of that report to the IRS.  The IRS was given a list of all those interviewed, but the attys refused to produce their notes and memordum.

Legal Issue(s): Whether atty-client privilege is available to communications btwn corporate officers and employees and attys for corporation, and whether the atty=s notes and memoranda based on oral statements by employees were work-product as applied to tax summons?

Court=s Holding: Yes, and the work product doctrine does not apply to tax summons under 26 U.S.C.A. ‘ 7602.

Procedure: U.S. D. Ct order enforcing IRS summons for documents.  Ct. of App affirmed in part, reversed in part.  U.S. S. Ct. Reversed and remanded.

Law or Rule(s):   FRE 501 >the privilege of a witness . . shall be governed by the principles of the  common law as they may be interpreted by the courts of the United States. . . .@  The atty-client privilege applies when the client is a corporation.  U.S. v. Louisville & Nashville R. Co., 236 U.S. 318 (1915).

Court Rationale: If an employee making the communication, of whatever rank, Ais in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the atty . . .then he is, (or personifies), the corporation when he makes his disclosure to the lawyer and the privilege would apply.@ General Electric v. Kirkpatrick, 312 F.2d 742 (CA3 1962).  The privilege exists to protect not only the giving of professional advice, but also the giving of information to the lawyer to enable him to give sound and informed advice, b/c the lawyer must be fully informed in order for his client to obtain full advantage of the legal system.  A[T]he ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client, but also encourages laymen to seek early legal assistance.@  Hickman v. Taylor, 329 U.S. 495 (1947).   The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the atty.  AThe protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning a fact is an entirely different thing.  The client cannot be compelled to answer the question >What did you say or write to the atty?= but may not refuse to disclose any relevant fact . . . merely b/c he incorporated a statement of such fact into his communication to his atty.@ Philadelphia v. Westinghouse Electric, 205 F.Supp. 830, 831.

Plaintiff=s Argument:

Defendant=s (Govt)Argument: The risk of civil or criminal liability will ensure that corporations will seek legal advice in the absence of the protection of privilege.



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