Many of our attorneys have served as Deputy Prosecuting Attorneys in Indiana,
including in both Hamilton County and Marion County. This includes experience in
“vertical prosecution”. In the “vertical prosecution” model, a deputy prosecutor works in
tandem with other law enforcement officers to investigate allegations of criminal activity,
determining which charges to file, resolving the case through the court system. This
provides the deputy prosecuting attorney to experience in the investigative process first-
hand while making strategic decisions in the direction in the case. The attorneys in our
office have experience in the vertical prosecution of homicides, sexual violence, child
abuse and white collar crimes.
As a Deputy Prosecuting Attorney our “client” was the State of Indiana. Now, in private
practice, our attorneys use their vertical prosecution experience to benefit our clients.
This is an opportunity for us to use the experience we acquired in a variety of settings.
This includes organizational investigations – or what are commonly referred to as
“corporate” or “internal” investigations. When properly structured, these investigations
can provide both insight and confidentiality for the organization – specifically the
attorney-client privilege.
A ”corporate investigation” is an investigation conducted on behalf of an organization.
These range from internal investigations of possible criminal activity, or non-criminal
activity (such as Human Resource complaints, accounting concerns, etc.). Again, it is
critical that these investigations are structured appropriately. An investigation into
possible criminal activity must be properly conducted in a way not to place the
organization in further peril with law enforcement, and must recognize a duty to
preserve evidence, recognize mandatory reporting statutes, among other concerns, all
while maintaining the rights of the organization. An investigation into non-criminal
matters has similar complexities.
When these investigations are properly structured and led by an attorney they can be
protected by attorney-client privilege. This means that the business entity can hire an
attorney to investigate an internal matter for legal advice and protect the information that
the attorney gathers on their behalf – but there are specific steps to ensure this
protection is in place. There are both legal and ethical considerations.
An attorney represents a specific client – but who is the client? There are many factors
at play when we are retained by an organization and this leads to many questions.
Does the attorney represent the organization alone? What about the board of
directors? What about the employees? What if the company is liable for criminal
conduct? What if a representative of the company is acting outside the scope of their
authority granted by the company? What if a conflict arises between an attorney’s
duties to the company and the attorneys duty to an individual or group of individuals
within the organization? The ethical questions raised by these investigations are
complex and need to be addressed on a case-by-case basis. It is critical to begin the
process with a detailed conversation with your attorney to obtain advice specific to your
case.
While the process can be complex, Indiana Rule of Professional Conduct 1.13
“Organizations as Client” establishes ethical boundaries and guidance to attorneys
representing organizations. 1.13.1 states “A lawyer employed or retained by an
organization represents the organization acting through its duly authorized
constituents.” The Rule also provides parameters under which an attorney can
represent both the organization and its “directors, officers, employees, members,
shareholders and other constituents” simultaneously. However, it is critical to recognize
conflicts in representation. The rule contains guidance as to how a lawyer should
resolve conflicts – an attorney (or firm) cannot serve two clients with adverse legal
interests.
A second bedrock of legal guidance in organizational investigations is the “Upjohn”
advisement/warnings. These are often referred to by attorneys as the “corporate
Miranda warnings,” and find their root in the United States Supreme Court decision
Upjohn Co. v. United States (449 U.S. 383 (1981). These warnings apply when an
attorney representing an organization is interviewing an employee of that organization.
While the opinion of the Upjohn Court did not contain specific instructions, the principles
advanced by Chief Justice Warren Burger in his separate opinion “concurring in part
and concurring in the judgement” has generated what may be referred to as the “core
values” of the Upjohn warnings. When representing an organization in the interview of
an employee, the attorney needs to address the Upjohn warnings. They must be by
clearly communicated and acknowledged by the employee being interviewed BEFORE
the interview. This “warning” should include, but not be limited to the following:
1. The attorney represents the organization in the matter under investigation.
2. The attorney does NOT represent the employee.
3. The attorney has a right to their own attorney and may consult with the attorney
before proceeding with the interview
4. The interview is privileged and confidential.
5. The privilege and confidentiality belongs to the organization and not the
individual.
There are many moving parts and legal considerations in an organizational
investigation, and this is meant to be an introduction to the concepts. Due to the
complexity of these investigations this should not be taken as legal advice, merely
Recognition of the factors at play in an organizational investigation. If you or your
organization are need of legal advice that requires an internal investigation, or you
yourself are the subject of an investigation – criminal or civil – we encourage you to
contact the attorneys at Banks and Brower. Give us a call at 317-870-0019, or email our team at [email protected].
