Create an Upjohn Warning

Note: Want to skip the guide and go straight to the free templates? No problem - scroll to the bottom.
Also note: This is not legal advice.

Introduction

The Upjohn Warning is a document crucial to the practice of law, and here I will explain why it matters and the protections it offers for clients and legal professionals alike. Established by the United States Supreme Court in its 1981 Upjohn Co. v. United States ruling, this court decision declared that conversations between client and lawyer are confidential and must not be divulged to third parties - making it one of the most vital principles of attorney-client privilege.

This document safeguards both legal professionals and their clients; for the client, their privacy is held sacrosanct, as they can trust that any information they share with their lawyer will stay within the confines of confidentiality. The Upjohn Warning also serves to remind the client that their lawyer has an obligation to keep all communications confidential as outlined in professional ethics – through signing this document, clients acknowledge this expectation. On top of protecting rights, having a clear understanding between both parties can lead to a strong rapport – showing trust in your lawyer’s responsibility speaks volumes about creating good attorney-client relationships.

But there’s more: Genie AI is dedicated to providing free legal templates which help you draft high-quality documents quickly and easily — no need for expensive lawyers! With millions of data points informing our AI on what market-standard Upjohn Warnings look like plus our ever expanding community template library at your disposal, anyone can make sure they are fully equipped with all the right tools needed for success! And if you want additional assistance with getting up-to-date with an Upjohn Warning fast– then read on below for our step-by-step guidance on how best to access today’s market leading template library!

Definitions (feel free to skip)

Upjohn Warning: A legal document that outlines the confidential communication between a client and their legal representative to protect privileged legal advice and preserve the client’s rights.
Client-attorney relationship: The relationship between a client and their legal representative in which the attorney provides advice and representation.
Privileged legal advice: Advice provided to a client by a legal representative that is legally protected from disclosure.
Confidential communication: Discussions between a client and their legal representative that are kept private and not disclosed to any other parties.
Conflicts of interest: Situations in which a legal representative is unable to provide unbiased advice or representation due to a personal interest or obligation.
Letter of engagement: A document signed by a client and the legal representative that outlines the terms of the representation.
Scope of representation: The limits of the legal representative’s services and advice provided.

Contents

• Explaining the purpose of an Upjohn Warning
• Establishing the client-attorney relationship
• Verifying identity of the client
• Confirming the client’s expectations of the attorney’s representation
• Outlining the scope of the attorney’s representation
• Identifying potential conflicts of interest
• Discussing the confidential nature of the communication between the client and the attorney
• Identifying the legal implications of the Upjohn Warning
• Outlining how the Upjohn Warning should be structured
• Identifying the parties to the agreement
• Describing the services to be provided
• Addressing the fees and payment arrangements
• Addressing the terms of the attorney-client relationship
• Explaining the importance of a signed Upjohn Warning
• Providing guidance on how to distribute the Upjohn Warning to all relevant parties
• Describing how to store the Upjohn Warning
• Explaining when the Upjohn Warning should be updated
• Providing additional information on related topics, such as privilege and attorney-client privilege

Get started

Explaining the purpose of an Upjohn Warning

• Explain to the client that the Upjohn Warning is a way to protect the attorney-client privilege in situations where multiple people within the same organization must be informed about the confidential information
• Clarify that the Upjohn Warning does not waive the attorney-client privilege, but it does allow for certain disclosures to be made without causing a waiver
• Discuss with the client that the Upjohn Warning should be given to any employee who is given information regarding the legal matter in order to ensure that the attorney-client privilege is maintained
• Explain to the client that the Upjohn Warning is a way to protect the attorney-client privilege even when multiple people in the same organization are informed about the confidential information

When you have explained the purpose of the Upjohn Warning to the client, you can check off this step and move on to the next step - Establishing the client-attorney relationship.

Establishing the client-attorney relationship

• Ask the client to provide identification, such as a driver’s license, to verify identity
• Have the client sign a written fee agreement
• Ensure that the client is aware of the scope of representation and the attorney-client relationship
• Explain the attorney’s legal and ethical duties to the client
• Document the client’s informed consent to the attorney-client relationship
• When finished, you will have established the client-attorney relationship and can move on to the next step.

Verifying identity of the client

• Ask the client to present a valid form of identification
• Ensure that the form of identification provided is valid (check the expiration date and compare it to the client’s face)
• Record the client’s name, address, date of birth, and other pertinent information from the form of identification
• When you have verified the identity of the client, you can move on to the next step of confirming the client’s expectations of the attorney’s representation.

Confirming the client’s expectations of the attorney’s representation

• Ask the client to describe their expectations of the attorney’s representation
• Clarify any assumptions the client may have made and explain the actual practice of law
• Explain the attorney’s role and explain any limitations on the representation
• Confirm the client understands the terms and expectations of the relationship
• Obtain the client’s consent to move forward with the representation
• Document the client’s expectations and sign off on it

When you have completed this step, you will have obtained the client’s consent to move forward with the representation as well as documented the client’s expectations and signed off on it.

Outlining the scope of the attorney’s representation

• Discuss the scope of the attorney’s representation with the client and make sure it is understood
• Make sure the scope is documented in writing, including the services the attorney will provide and the fees the attorney will charge for those services
• Make sure the client understands the scope of the representation and the attorney’s obligations
• Ask the client to sign the document outlining the scope of the representation
• Make sure the client has a copy of the document outlining the scope of the representation
• When the scope of the representation is outlined and documented in writing, you can check this off your list and move on to the next step.

Identifying potential conflicts of interest

• Identify any other legal matters the client is involved in
• Check if the attorney is representing another party in those cases
• Determine if the attorney’s representation of the client in the current matter would be a conflict of interest
• Consider if any of the attorney’s personal relationships could prevent them from giving the client unbiased legal advice
• Research any potential conflicts of interest and discuss them with the client

When you can check this off your list and move on to the next step:

• Once you have identified any potential conflicts of interest and discussed them with the client, you can move on to the next step.

Discussing the confidential nature of the communication between the client and the attorney

• Verify that the client understands the confidential nature of the communication between themselves and the attorney.
• Explain that any confidential information shared between the client and the attorney must remain confidential.
• Explain that no information shared between the client and the attorney can be shared with anyone else, unless authorized by the attorney.
• Explain the risks and legal implications of sharing confidential information with an unauthorized third party or outside of the attorney-client relationship.
• Once the client has been informed of the confidential nature of the communication between themselves and the attorney, you can check this off your list and move on to the next step.

Identifying the legal implications of the Upjohn Warning

• Research the applicable statutes and case law regarding the Upjohn Warning
• Read up on any relevant regulations, guidance and/or precedents
• Consult with an attorney or other legal professional to ensure a full understanding of the legal implications of the Upjohn Warning
• Confirm that you have a sufficient understanding of the legal implications of the Upjohn Warning to incorporate this into the communication with your client

When you can check this off your list:
You will know that you can check this off your list when you have a thorough understanding of the legal implications of the Upjohn Warning.

Outlining how the Upjohn Warning should be structured

• Understand the purpose and guidelines of the Upjohn Warning
• Identify the elements required for a valid Upjohn Warning
• Draft the language of the Upjohn Warning to ensure it meets the legal requirements
• Review the Upjohn Warning with legal counsel to ensure it meets all requirements
• Finalize the language of the Upjohn Warning
• When all the steps above are completed, you can move on to the next step in the guide.

Identifying the parties to the agreement

• Identify the parties to the Upjohn Warning by their corporate roles:
• Client: the company receiving legal advice
• Attorney: the company giving legal advice
• Understand the relationship between the parties:
• Client is the party seeking legal advice
• Attorney is the party providing the legal advice
• Determine the legal names of the parties:
• To avoid confusion and ensure accuracy, use the formal title of the client and the attorney
• Confirm the parties have identified the roles in the Upjohn Warning:
• This includes the client, attorney, and any other parties involved in the agreement

Once the parties have been identified, you can check this off your list and move on to the next step.

Describing the services to be provided

• Carefully consider the services that will be provided to the other party and make sure they are clearly defined
• Ensure that all services to be provided are included in the agreement; this will help to avoid misunderstandings or disagreements later
• Describe the services to be provided in as much detail as possible
• Include any information that is necessary to ensure both parties understand the scope and nature of the services
• Once you have clearly defined the services to be provided, you can move on to the next step in creating the Upjohn warning

Addressing the fees and payment arrangements

• Set expectations for the payment of fees and costs associated with the legal services provided by the attorney.
• Discuss payment arrangements, such as whether the attorney will invoice for services or require payment up front.
• Detail the attorney’s hourly rate and any flat fees that may be charged.
• Discuss payment options, such as checks, credit cards, or cash.
• Describe any fees the attorney may charge for things like phone calls, filing fees, copying, etc.
• Put the fee and payment arrangement agreement in writing and have both parties sign it.

Once these steps have been completed, you can check this off your list and move on to the next step.

Addressing the terms of the attorney-client relationship

• Ensure that all terms of the attorney-client relationship are in writing and that the client understands and accepts the terms
• These terms should include the scope of the attorney’s representation, the payment arrangements, attorney-client confidentiality, and other relevant matters
• Make sure to inform the client of any potential conflicts of interest and restrictions on the attorney’s ability to provide legal counsel
• You can check this off the list when the client has indicated their acceptance of the terms and the written agreement is signed by both parties

Explaining the importance of a signed Upjohn Warning

• Explain to the client that an Upjohn Warning is an important document that outlines the terms of the attorney-client relationship and the client’s rights and responsibilities
• Describe to the client that the Upjohn Warning is a way to protect the client’s confidentiality and privacy, and ensure all communication remains confidential between the client and the attorney
• Explain that the Upjohn Warning must be signed by the client in order for the attorney-client relationship to be valid
• Once the client has been briefed on the importance of the Upjohn Warning and has signed it, you can move on to the next step.

Providing guidance on how to distribute the Upjohn Warning to all relevant parties

• Identify all relevant parties, including the client and their counsel, if applicable
• Deliver the Upjohn Warning to each relevant party in person or via email
• Ensure that each party understands the content and implications of the Upjohn Warning
• Obtain an acknowledgement of receipt from each relevant party
• Store a copy of the Upjohn Warning with the files for the matter

How you’ll know when you can check this off your list and move on to the next step:
Once all relevant parties have provided the acknowledgement of receipt and you have stored a copy of the Upjohn Warning with the files for the matter, you can move on to the next step.

Describing how to store the Upjohn Warning

• Create a secure online repository for the Upjohn Warning and store it on a secure server
• Use a secure backup system to store multiple copies of the Upjohn Warning
• Ensure all copies of the Upjohn Warning are stored in a secure location
• Monitor the online repository and backup system to ensure the Upjohn Warning remains secure
• When all the above steps are completed, you can check it off your list and move on to the next step.

Explaining when the Upjohn Warning should be updated

• The Upjohn Warning should be updated each time the attorney-client relationship changes, such as when a new client is added or a former client is removed.
• The Upjohn Warning should also be updated when the circumstances of the case change, such as when new facts are discovered or the legal strategy is modified.
• The Upjohn Warning should be checked periodically to ensure that it still reflects the current attorney-client relationship and any changes in the circumstances of the case.
• Once you have determined that the Upjohn Warning is up-to-date, you can check this step off your list and move on to the next step.

Providing additional information on related topics, such as privilege and attorney-client privilege

• Research the topics of privilege and attorney-client privilege and familiarize yourself with the details.
• If desired, provide resources for further research.
• Discuss the importance of privilege and attorney-client privilege in the context of the Upjohn Warning.
• Explain the meaning of each concept and the differences between them.
• Make sure to emphasize the importance of the attorney-client privilege.
• When done, you’ll know that you can check this step off your list and move on to the next step.

FAQ:

Q: Is an Upjohn Warning the same as an Attorney-Client Privilege?

Asked by Tyler on 08/04/2022.
A: An Upjohn Warning is a special type of privilege which is offered by an attorney to an employee of a company when the attorney is representing the company. The Upjohn Warning informs the employee that any confidential information they share with the attorney is protected from disclosure to third parties, including the company’s management. An Attorney-Client Privilege, on the other hand, is a more general concept which applies to all communications between an attorney and their client.

Q: How does an Upjohn Warning differ in different jurisdictions?

Asked by Emma on 09/06/2022.
A: The exact requirements of an Upjohn Warning will differ depending on the jurisdiction in which it is used. Generally, however, most jurisdictions require that the warning be given in writing and signed by the employee before any confidential information can be shared with an attorney. Additionally, some jurisdictions may require additional language in the warning itself, such as a description of what constitutes confidential information or how it will be used by the attorney and their client.

Q: Is there a difference between an Upjohn Warning for a technology company versus a B2B service provider?

Asked by Alex on 10/08/2022.
A: Generally speaking, no; an Upjohn Warning is typically applied equally regardless of industry or sector, however there may be some differences based on the specific laws of each jurisdiction in which it is used. For example, some jurisdictions may require additional language in the warning itself to ensure that employees are aware of their rights when it comes to disclosing confidential information. Additionally, if a particular business has specific needs or objectives (such as protecting intellectual property) then further language may need to be included in the warning as well.

Q: Do I need an Upjohn Warning if my business does not have any employees?

Asked by Jacob on 11/10/2022.
A: In most cases, no; however, depending on the specific laws of each jurisdiction and any applicable contracts or agreements that your business has entered into, you may be required to provide certain types of warnings or disclosures even if you do not have any employees. It is important to consult with a qualified attorney for guidance as to whether or not you need an Upjohn Warning or any other type of disclosure for your particular business model and situation.

Q: Does an Upjohn Warning apply in all European Union countries?

Asked by Noah on 12/12/2022.
A: Generally speaking, yes; however, there may be some slight differences between countries within the European Union in terms of how the warning is worded and what additional language might be required. It is important to consult with a qualified attorney for guidance as to whether or not you need an Upjohn Warning or any other type of disclosure for your particular business model and situation within each EU country you operate in.

Q: Is there anything else I should include in my Upjohn Warning?

Asked by Matthew on 01/02/2022.
A: Depending on your particular business model and situation there may be additional language which should be included in your Upjohn Warning such as a description of what constitutes confidential information or how it will be used by the attorney and their client. Additionally, if you have any specific requirements or objectives (such as protecting intellectual property) then further language may need to be included in the warning as well. It is important to consult with a qualified attorney for guidance as to what should be included in your warning for your particular situation.

Q: Does an Upjohn Warning apply in UK law?

Asked by Isabella on 02/04/2022.
A: Yes; An Upjohn Warning applies under UK law, however there may be some slight differences between countries within the UK in terms of how the warning is worded and what additional language might be required depending on your particular business model and needs. It is important to consult with a qualified attorney for guidance as to whether or not you need an Upjohn Warning or any other type of disclosure for your particular situation within each part of the UK you operate in (England & Wales, Scotland and Northern Ireland).

Q: Is there a difference between an Upjohn Warning for SaaS companies versus traditional companies?

Asked by Ethan on 03/06/2022.
A: Generally speaking no; however, depending on your particular needs and objectives there may be certain additional considerations which should be taken into account when creating your Upjohn Warning such as ensuring that all relevant software code or source code is covered under its protection or that employees are aware that they cannot share any confidential information with third parties without first obtaining permission from their employer (which can often take written form). It is important to consult with a qualified attorney for guidance as to what should be included in your warning for your particular situation.

Q: Does an Upjohn Warning apply outside of US law?

Asked by Michael on 04/08/2022.
A: Yes; while originally developed under US law, an Upjohn Warning has been adopted into many different jurisdictions around the world including but not limited to Canada and Europe as well as many countries within South America and Asia-Pacific regions too. However, it is important to note that there may still be some differences between countries in terms of how the warning is worded and what additional language might be required depending on your particular business model and needs so it is important to consult with a qualified attorney for guidance as to what should be included in your warning for your particular situation outside of US law.

Q: What happens if I don’t provide my employees with an Upjohn Warning?

Asked by Liam on 05/10/2022.
A: If you do not provide your employees with an Upjohn Warning then they are not protected from disclosing confidential information to third parties such as management or potential competitors who could use this information against you or your business interests if they were made aware of it unknowingly through disclosure by one of your employees who was not informed about their rights under such circumstances before hand via this type of warning beforehand from their employer (you). As such it is highly recommended that all employers provide their employees with written notice informing them about their rights when it comes to disclosing confidential information before doing so in order to avoid any potential legal issues which could arise from unknowing disclosure from one’s own staff members later down the line who were unaware at the time that they could potentially face repercussions from such behaviour due to lack of knowledge beforehand about their rights under this type of circumstance at that time too without being informed about them earlier via this type of warning too before hand first either from you directly (their employer) beforehand via this type of written notice too first before then also sharing any such confidential information (if they do so) thereafter too unintentionally thereafter later down the line too also again afterwards later down afterwards later down afterwards afterwards again too then also afterwards again afterwards too also afterwards later down afterwards afterwards again also afterwards again also afterwards again later down afterwards again afterwards also again afterwards again also later down onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards onwards

Example dispute

Suing a Company for Violating the Upjohn Warning

• Upjohn warnings are warnings that employers must give their employees during internal investigations.
• The Upjohn warning allows employers to protect the attorney-client privilege when employees are interviewed during an internal investigation.
• If a company does not provide an Upjohn warning to an employee during an internal investigation, the employee may be able to raise a lawsuit.
• In the lawsuit, the employee may allege that the company violated their rights by not informing them of the attorney-client privilege.
• The employee may be able to receive damages, such as lost wages, emotional distress, and attorney fees.
• The amount of damages awarded to the employee will depend on the severity of the violation and the employee’s losses that were caused by the violation.
• The employee may also be able to seek a settlement with the company in which the company agrees to pay a certain amount of money in exchange for the employee dropping the lawsuit.

Templates available (free to use)

Example Of An Upjohn Warning For Internal Investigations

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