CBA Record April-May 2018

ings generally include, among other items, statements that the attorney represents only the corporation and does not represent the interviewed person; the interview is subject to the attorney-client privilege held by the corporation; only the corporation can waive the privilege; the company may choose to disclose the communication to a third party, including the government; and the witness should keep the commu- nication confidential and not disclose it to anyone other than the witness’s counsel. Conclusion Whistleblowers have long been part of the American political and corporate culture. Their role in government and internal policing has only increased in the years fol- lowing the financial crisis. The notion that whistleblowers are motivated by greed or dissatisfaction with their jobs has proven to be inaccurate; most whistleblowers report for laudable reasons. Nonetheless, the highly-publicized whistleblower bounty awards in the post Dodd-Frank world can only serve to provide additional incentives for whistleblowers. Attorneys representing

whistleblowers and targets of whistleblow- ers should have a firm grasp on the substan- tive laws defining the alleged violations, as well as the rights and responsibilities of whistleblowers and businesses responding to their allegations. Anthony F. Fata is a partner at Cafferty Clobes Meriwether & Sprengel, LLP in Chi- cago and an Adjunct Professor for the Seton Hall University Law School’s Masters in Jurisprudence and LLM programs. Anthony’s practice focuses on complex financial litiga- tion, and he represents whistleblowers and businesses responding to whistleblower allegations. David Kovel is a managing partner at Kirby McInerney LLP in New York City. A former commodities trader, David specializes in complex financial liti- gation and represents whistleblowers before the SEC and CFTC, as well as in related Department of Justice investigations. He has also represented whistleblowers in retaliation suits against employers.

CBA MEMBER DISCOUNT PROGRAMS

For this reason, carefully worded “Upjohn Warnings,” named after the seminal Supreme Court decision creating the corporate attorney client privilege for internal investigation interviews, should be provided to all witnesses, including the whistleblower. See Upjohn Co. v. United States , 449 U.S. 383 (1981). Such warn- Save on Lexis, client credit card processing, vir- tual office receptionists, student loan rates, car rentals, UPS, magazine subscriptions, legal soft- ware andmore.Visit www.chicagobar.org/save for more information and links to our discount providers. These programs have been negoti- ated to offer you savings and special offers as a value-added benefit of your CBA membership. Make themost of your membership investment and check out these savings!

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