The petitioner, Upjohn Co. (Petitioner), conducted an internal audit and investigation which revealed alleged illicit payments made to foreign officials in exchange for business. The petitioner has voluntarily informed the Internal Revenue Service (IRS) of such conduct, which has issued a summons for information obtained by the petitioner, including internal questionnaires sent to the management staff. The complainant argued that the records were protected by the right of the attorney-client privilege and the work product of the attorney.
In the corporate sense, the right of the attorney-client applies to lower-level staff, not only to those in charge of the company. The work-product doctrine protects oral comments made to lawyers, which require proof of unreasonable distress on the part of the party-opponent requesting the information.
Petitioner, a multinational pharmaceutical corporation, has discovered through an independent investigation that one of its global subsidiaries might have made payments to foreign government officials in order to gain government business. The petitioner’s General Counsel, Gerard Thomas, was informed and met with outside counsel as well as the petitioner’s chairman, both of whom agreed that an internal inquiry as to “questionable payments” was appropriate. As a result, questionnaires were sent to both international and regional managers asking for information about any such payments. This information collection practice was considered to be “highly confidential.” The complainant voluntarily submitted a preliminary report to the Securities and Exchange Commission (SEC) and the IRS. The IRS started an investigation and obtained the petitioner’s lists of all those questioned and all those who replied to the questionnaire. The IRS then requested the development of all the files related to the investigation carried out under the supervision of Gerard Thomas. The requested output included, but was not limited to, written questionnaires and memoranda or notes of interviews performed in the United States and abroad by the officers and employees of the Petitioner and its subsidiaries. Petitioner declined, claiming attorney-client privilege and attorney’s work product in anticipation of trial. The Complainant, United States (Respondent), filed a petition seeking enforcement of the summons to the District Court which was granted. The plaintiff then appealed to the Court of Appeals for the Sixth Circuit, which dismissed the decision of the District Court to waive the right of the attorney-client, but decided that the privilege did not extend to correspondence made by officers and agents not liable for directing the acts of Upjohn in response to legal advice. The Appellate Court directed the District Court to decide who was in the control group.
If the right of the attorney-client privilege in the corporate sense applies to workers not within the “control group” of the company. If the IRS had shown ample need and reason to resolve the labor-product doctrine.
The decision of the Court of Appeals was overturned and remedied. The right of the attorney-client shall shield the correspondence in this case from forced disclosure. The work-product theory refers to tax summons compliance proceedings where there must be a clear demonstration of the need to compel the discovery of the work product.
The right of the attorney-client extends to corporations, not only to the “control group,” but also to lower-level workers, as their acts can also place a company in legal difficulties. The right of the attorney-client only covers the disclosure of correspondence. It does not protect the disclosure of the underlying facts by those who have contacted the counsel. In this case, the complainant provided the IRS with a list of those employees to whom the questionnaire was sent and those who replied. The IRS was free to challenge the staff who had approached Thomas and the outside counsel. The court shall guard against disclosure of the mental impressions, assumptions, opinions or legal theories of a lawyer or other party’s representative in relation to the dispute. The notes and memoranda demanded by the IRS in this case were a working product based on oral statements. This allowed the IRS to demonstrate urgency and undue difficulty in obtaining the information it demanded, a duty not met by the Supreme Court of the United States (Supreme Court).