Representing Individuals in Interviews: The US Perspective
This is an Insight article, written by a selected partner as part of GIR's co-published content. Read more on Insight
Risks and rights unique to individuals are key in determining if, and how, to proceed with an interview in internal and government investigations: only individuals face the ultimate peril of losing liberty, and only individuals have a constitutional right to refuse to answer questions. America’s founding fathers made clear that a potential witness has a clear choice: tell the truth or say nothing. Several considerations can help individuals and their counsel make that critical decision. Beyond this fundamental choice, counsel plays a vital role guiding individuals through an inherently challenging legal process and can often enhance fact-finding in the best interests of all parties.
36.2 Distinguishing witnesses, subjects and targets
The first assessment defence counsel must make when representing individuals in criminal investigations is determining their status as witnesses, subjects or targets. The category into which the client falls will dictate – from the very beginning of the representation – counsel’s response to the government’s investigation and the strategy going forward.
The distinction among these three categories can be visualised in the following simple scenario. In a hit-and-run where a vehicle driven at a high speed kills a pedestrian, the driver would be considered a ‘target’, defined by the US Department of Justice (DOJ) as a putative defendant against whom there is substantial evidence linking him or her to the commission of a crime; the passenger in the vehicle would likely be considered, at least initially, a ‘subject’, as someone whose conduct is within the scope of the grand jury investigation by his or her mere presence in the vehicle but who is not necessarily a criminal participant; and a bystander on the street would be considered a ‘witness’, as one not involved in any way in the criminal action.
These distinctions, however, are fluid; subjects can turn into targets during the investigation if, in the present example, the passenger assisted the driver either in committing the crime or in helping to conceal it. In a corporate investigation, officers or employees of a corporation that is a target are not automatically considered targets even if their conduct contributed to the commission of the offence by the target corporation, although that determination may change during the investigation. Because of an individual’s potentially evolving status in a criminal investigation, each person – target, subject and even witness – would be well advised to seek legal representation.
To determine the client’s status in the government’s view, counsel’s first step generally is to ask the question directly of the prosecutor assigned to the case. Unless the client is clearly a witness (victim or otherwise), however, prosecutors tend to be reluctant to commit to any one category. But counsel can often deduce the answer by how the client becomes aware of the criminal investigation.
If the client has received a grand jury subpoena to testify or produce documents, he or she is likely to be a witness or subject. Prosecutors rarely issue subpoenas to targets; instead, they issue a ‘target letter’, identifying the individual as a target of a grand jury investigation. The target letter includes an ‘advice of rights’, warning the target, among other things, of his or her Fifth Amendment privilege against compulsory self-incrimination should the target request to testify before a grand jury. Prosecutors do not issue target letters, however, when notification would likely result in the target’s flight from the jurisdiction, destruction or fabrication of evidence or endangerment of other witnesses or would otherwise jeopardise the investigation.
Where the government has convened a grand jury to investigate a corporation and its officers and employees, a lawyer acting in the role of ‘pool counsel’ may concurrently represent multiple individuals, subject to the rules governing conflicts of interest and confidentiality. The concern is that one prospective pool client would later choose to testify adversely against another. If pool counsel determines that there is, or could be, a conflict of interest but reasonably believes that he or she can nevertheless represent all prospective clients competently and diligently, counsel can only continue the representation with informed written consent of each. As a general matter, a target of the investigation will need separate counsel. Further, because of the legal and ethical pitfalls that pool counsel may face, it is generally advisable for a corporation, its officers and employees to retain separate counsel in a government investigation.
36.3 Privilege against self-incrimination
Ascertaining an individual’s standing in an investigation is helpful, but not necessarily dispositive, in determining whether to assert the right to remain silent. The Fifth Amendment to the Constitution provides that: ‘No person . . . shall be compelled in any criminal case to be a witness against himself.’ The Fifth Amendment privilege against self-incrimination is available to individuals, not entities. As the US Supreme Court has said repeatedly, the Fifth Amendment privilege not only protects the guilty but also ‘serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances’. The Fifth Amendment privilege is available to both citizens and aliens resident in the United States. So, for example, foreign employees working in the United States may invoke the privilege against self-incrimination.
Not only is the privilege available when the questioner is a government representative such as an agent, regulator or prosecutor, but it also extends to questioning in any inquiry. An individual may invoke the Fifth Amendment privilege in internal investigations and should consider doing so when the conduct under review may be deemed criminal. Such conduct may involve, for example, alleged accounting irregularities that might establish securities fraud or alleged sexual harassment that might constitute a state crime. A failure to invoke the privilege in an internal investigation may be deemed to be a waiver of the Fifth Amendment privilege, eliminating protection in a parallel or subsequent criminal proceeding.
The privilege against self-incrimination is a testimonial privilege. Nonetheless, courts have recognised that the act of producing documents in response to a request or a subpoena may itself be testimonial in some circumstances. By producing a document, a witness implicitly testifies as to its authenticity and responsiveness. That implicit testimony – offering a link in an evidentiary chain – is entitled to Fifth Amendment privilege under the ‘act of production’ doctrine. The DOJ can nevertheless compel the production of documents otherwise subject to the privilege conferred by the doctrine by filing an application with the court granting the witness limited immunity for the purpose of obtaining documents responsive to the subpoena.
While the Fifth Amendment provides individuals with powerful protection, the benefits and burdens of invoking it must be weighed carefully, as it can be waived. While no adverse implication can be drawn in criminal proceedings from an individual’s assertion of Fifth Amendment rights, in civil proceedings an adverse inference can be drawn. For example, if an individual defendant invokes his or her Fifth Amendment right to refuse to answer, the opposing party – a civil plaintiff or a civil government agency such as the Securities and Exchange Commission – may be entitled to have a court or a jury draw an adverse inference from the invocation of that right. The purpose underlying the allowance of an adverse inference in civil cases is equitable, not punitive, and serves to vitiate the prejudice to the party denied evidence by invocation of the privilege.
This means that invoking the privilege in a non-criminal context should be given serious thought depending on the circumstances. For example, invoking the privilege in response to all questions may not be necessary or wise; if an individual only invokes the privilege carefully to some questions, the adverse inference is correspondingly relegated to those few questions to which the privilege was invoked. Selective invocation of the Fifth Amendment privilege is not without risk since answering even limited questions on a subject may be deemed to be a waiver of the privilege as to that entire subject matter. In addition, where a witness declines to answer questions in a civil case on the basis of the Fifth Amendment privilege against self-incrimination, adverse inferences may be drawn against others associated with the witness, depending on the relationship between them and the circumstances of the particular case. For these reasons, an individual subject to parallel criminal and civil proceedings should consider seeking a stay of the civil proceedings pending the outcome of the criminal proceedings.
A refusal to answer questions, particularly in internal and regulatory proceedings, may also have additional adverse implications. In the absence of contractual protections to the contrary, a company may conclude that employees who assert their rights and refuse to answer questions should be suspended or terminated. In non-governmental regulatory inquiries – for example, investigations conducted by the Financial Industry Regulatory Authority (FINRA) – a Fifth Amendment refusal to answer questions constitutes a failure to cooperate and is grounds for barring the individual from association with FINRA member firms – effectively barring the individual from employment.
The decision whether to invoke the privilege against self-incrimination requires an understanding of the individual’s status. While the choice to invoke is almost always self-evident when an individual is the target of a criminal investigation by the DOJ, the assessment is more complex when the individual is a subject and government perceptions of guilt or innocence may be influenced by a willingness to cooperate in an investigation or refusal to do so based on Fifth Amendment rights. When the individual is clearly identified as merely a witness, the analysis may seem simpler, but status can change and counsel is well advised to gather as much factual background, context and understanding of the government’s case, or where an internal investigation may be heading, before advising an individual to answer or invoke.
Individuals identified by the government as witnesses or subjects in a criminal investigation may receive some protection through a proffer agreement that limits the extent to which the government can use their answers against them. But that protection is generally limited to barring the use of a witness’s statements as evidence in the government’s case in chief if the witness or subject becomes a defendant and gives the government freedom to further investigate those statements (and any leads flowing from them), and to use those statements at trial in cross-examination and rebuttal; therefore, these proffer agreements offer scant protection compared with the broad sweep of the Fifth Amendment privilege. Notably, while proffer agreements were conceived to protect individuals, US Attorney’s Offices have come to recognise them as a means of clearly establishing the terms on which an interview is conducted. Because a proffer agreement is not a grant of immunity, prosecutors now approach the agreement as a pro forma part of their process, protecting them as well as the witness. In any event, counsel is well advised to obtain at least the limited protection provided by a proffer agreement.
If an individual chooses not to invoke the privilege, answering questions will constitute a waiver of the Fifth Amendment’s protections. That waiver may not solely apply to a specific question; answering a question on a topic as to which the privilege could have been invoked may also constitute a far broader subject-matter waiver. Counsel must be vigilant in recognising whether a particular question or line of questioning opens the door to a claim that the Fifth Amendment’s protection has been waived. Counsel must also be vigilant because the well-known Miranda warnings, advising an individual of the right to remain silent, apply only in custodial settings. Prosecutors, regulators, government agents or counsel conducting an internal inquiry have no obligation to advise non-custodial witnesses of their Fifth Amendment rights. And once the Fifth Amendment horse is out of the barn, it is too late to close the door and assert the right against self-incrimination.
36.4 Interviews by company counsel
An individual whose interview is sought by company counsel has a threshold set of questions to answer, before deciding whether to participate: Do I have a need for counsel? Do I have a right to counsel? If I have a need and a right, who will pay?
Individuals who know or believe that they have engaged in improper conduct being investigated by company counsel have the easiest time concluding that they need counsel to help protect their rights. But even individuals who believe they have done nothing wrong would be well advised to seek counsel to help ensure that they understand the focus and context of the investigation, to help gather information that can clarify and strengthen recollection, and to make sure they do not inadvertently place themselves or the company in a more difficult position. Individuals almost inevitably have more limited insight into the facts being investigated than company counsel, who have access to multiple sources of information. Individuals who seek to redress that informational imbalance by speaking to other potential witnesses expose themselves to the risk of being perceived as seeking to coordinate stories, and, in the worst case, may be accused of seeking to obstruct justice if the internal investigation is in parallel with, or a prelude to, a government investigation. Company counsel must be more vigilant than ever in rooting out such misconduct, given the DOJ’s recently announced focus on prosecuting individual officers and directors in parallel with related internal corporate investigations.
Even the most innocent of discussions with other witnesses creates new areas for questioning of individuals about what was said between them. While discussions between witnesses may fuel claims of obstruction and additional questioning, ethical and careful communications between counsel for different individuals – typically operating under a joint defence or common interest agreement – can afford the benefits of a broader understanding of the facts, without creating the perils of inter-witness communications.
Another significant benefit counsel can provide, regardless of the individual’s innocence or potential culpability, is the ability to request and analyse documents beyond those in the individual’s possession, which may be vital to effective preparation for an interview. Anyone who has ever taken an exam knows that memory is rarely perfect. Documents can be an invaluable aid in refreshing and enhancing recollection and can provide important context for remembered experiences and perceptions. At the same time, documents that witnesses have not previously seen may infect them with partial or perceived awareness of facts about which they lack true testimonial capacity.
Careful document review by counsel can help obtain the benefit while avoiding the peril. The development of a clear factual picture, informed by contemporaneous documents, serves the individual’s interest in being an accurate witness – and being seen as such – and also helps the company by advancing the investigation. Recognising that mutual benefit can not only guide company counsel to be forthcoming in providing access to documents prior to questioning, but also lead a company to recognise that permitting individuals to have counsel, and underwriting the cost, is usually in the company’s best interests, even if it does not have pre-existing policies or contractual obligations to do so.
The benefit of a perspective broader than a single individual’s can also be provided when a lawyer serves as pool counsel representing multiple individuals in the same investigation. Ethical considerations of potential or perceived conflicts, including the possibility of subsequent disqualification from representation of any members of the pool, are critical preconditions to simultaneous representation of multiple individuals. But if those considerations are satisfied, pool counsel may be an efficient, effective and cost-effective way to make sure individuals are well prepared to provide the most accurate and thorough answers.
Armed with what they learn in helping prepare an individual to be interviewed by company counsel, external counsel are well positioned to advise individuals on the threshold question of whether to submit to being interviewed or to answer particular questions, or to decline, either through a refusal to participate or through the invocation of Fifth Amendment rights. Given the adverse consequences of suspension or termination likely to flow from a refusal to participate in an interview by company counsel or to answer particular questions, any individual – innocent or not – would be well advised to make that difficult choice with the advice of counsel.
The need for counsel is not limited to preparation; it comes into full force during the interview. Even the most self-assured and innocent witness is likely to find the dynamic of questioning unsettling. At the outset, competent company counsel will meet their Upjohn obligation by informing the witness that they do not represent the witness. Although the interview is protected by the attorney–client privilege, that privilege belongs to the company, not the witness, and may be waived by the company, potentially exposing the witness’s answers to scrutiny by regulators, prosecutors and others who may ultimately have interests hostile to those of the witness. If the individual does not have representation, the only party whose legal interests are being protected during an interview by company counsel are the company’s. That has legal ramifications for the individual and also a practical impact during the interview.
While responsible company counsel may conduct an interview entirely professionally, an unrepresented individual faces the possibility that a questioner, for tactical reasons or otherwise, may attempt to pressure, berate or otherwise mistreat a witness. An unrepresented witness may be pressured by an intimidating questioner into giving answers that are speculative, ill-informed, inaccurate, self-harming and even counterproductive for the company. More benignly, a questioner and witness may have a miscommunication that attentive counsel for the individual can clarify or correct. Even in the best of circumstances, an individual without counsel does not have the benefit of a note-taker who can provide a record of the interview that may be valuable for correcting errors in the notes or recollections of the company counsel who conducted the interview. In any event, having individual counsel present helps ensure that a witness who elects to be interviewed gives the most accurate and truthful answers, which, in principle, serves the interests of both parties.
If individuals conclude that they want legal representation, the next question is whether they have a right to have counsel attend a company interview. If company policy permits individual counsel to be present, is silent on the issue or does not proscribe it, the best answer is for counsel to attend and help ensure that the clearest and most accurate record is created. While an individual may be concerned that having counsel present suggests guilt or undue concern, skilled counsel can allay this perception. If company policy does not permit counsel to be present, the individual must weigh the risks of answering questions while unrepresented against the likely adverse impact of a refusal to appear or answer questions. That balancing of risk and consequence is one that can be aided by counsel, even if counsel cannot attend and provide protection during the interview.
Assuming a need and right to have counsel, the final question is: who pays for it? Many corporations expressly provide indemnification and advancement for legal fees to their current and former officers and directors, subject to an appropriate undertaking for repayment only if a very high bar to disqualification is met. Many companies recognise the benefits of extending indemnification and advancement to current and former non-officers, particularly in matters involving potential regulatory or prosecutorial exposure. Affording that benefit broadly helps ensure that witnesses are well prepared and do not inadvertently provide ill-informed responses to government representatives or adversaries in civil litigation that are counterproductive for the company. It also gives company counsel the ability to communicate with counsel for individuals and learn what those individuals may know or have to say, with a level of insulation for those inter-counsel communications that direct communication between company counsel and the individuals would not have.
Given the ever-growing reach of regulatory and prosecutorial powers, coupled with pressures to cooperate with government inquiries by sharing the fruits of internal investigations, in the long run, the cost of providing individual counsel is often a sound investment. The potential exposure of the contents of internal investigations is also heightened for companies with an international footprint and a presence in jurisdictions where communications by in-house counsel are not privileged. If interviews conducted by in-house counsel that would be protected in the United States produce a record available within the company in jurisdictions that do not recognise the privilege for in-house counsel, the protection is lost, and the possibility that the company will have to live with a record impaired by the absence of individual counsel can become very real.
If a company is not obliged to provide counsel and declines to do so, an individual is still well advised to consider whether the short-term cost of engaging counsel can pay for itself in the long term – particularly when liberty and career may ultimately be at stake.
36.5 Interviews by law enforcement
Two of the three considerations that apply in assessing whether to have individual representation in interviews by company counsel apply with equal or greater force with respect to interviews by law enforcement. While the right to have counsel present is clear, the questions of whether counsel is needed and who pays for it remain.
Once an inquiry or investigation has reached the level of law enforcement involvement, the question of whether counsel is needed is often simpler to answer. The perils posed by law enforcement proceedings, including the potential loss of liberty, raise the stakes and shift the balance towards concluding that individual representation is needed. The distinctions between witness and subject remain fluid and often blurred. In the best of cases, today’s subject is tomorrow’s witness, or better yet, of no further interest to the government. But today’s witness may become tomorrow’s subject, and either may become a target category as an investigation unfolds.
Dire consequences may result from an individual being perceived as less than truthful because he or she has not had the benefit of careful pre-interview preparation by skilled and attentive counsel who has sought access to documents on his or her behalf and communicated with counsel for other participants in lieu of direct communication between witnesses.
Further, it is advisable to limit the number of interviews to as few as possible and clearly define the scope of inquiry. No individual recounts an event in exactly the same words in multiple statements. Mere inconsistency may cast doubt on the individual’s veracity and can be misconstrued by the government as an attempt to evade or minimise his or her role in the matter under investigation, giving rise to potential criminal exposure.
In the interview, the absence of counsel may place the individual at significant risk. If a prosecutor does not volunteer to provide a proffer agreement, an unrepresented individual may unwittingly miss the protections such agreements provide. In non-custodial interviews, the government has no obligation to give Miranda warnings nor to remind witnesses of their Fifth Amendment protections. Without counsel to advise the individual of that right, and assist in its proper assertion, the witness may waive that extraordinary and fundamental constitutional protection and may do so in very broad and damaging ways.
In addition, while law enforcement is, in theory, committed to finding the truth, often the truth is subjective. Agents of the government can lie and mislead an unrepresented witness in ways that they cannot in the presence of counsel. The annals of the law are replete with examples of innocent individuals who falsely inculpated themselves in the face of pressure or deceit by representatives of law enforcement. The rules of engagement have not changed, and an unrepresented individual, regardless of innocence, still faces the danger of making his or her life far worse by submitting to an interview without the benefit of counsel.
While the need for counsel may be clear, individuals are at times reluctant to have counsel present for fear that it may suggest guilt. Experienced counsel can allay any such concern on the part of prosecutors, and indeed, experienced prosecutors frequently welcome the presence of individual counsel, particularly when an individual is seen as a likely witness for the government. There is no privilege for communications between a prosecutor and witness. Anything discussed between a prosecutor and a witness is fair game for cross-examination. The same is not true for appropriate communications between the prosecutor and an individual’s counsel to understand better the parties’ perspectives and the facts. That, in turn, can lead to the most accurate record being established during an interview, without errors rooted in a lack of recall or a misinterpretation of questions and answers. Individual counsel’s notes of the interview also provide a parallel record that can be particularly valuable if a government note-taker makes errors in recording what a witness has said.
Just as the need for counsel is often clear in law enforcement interviews, so, too, is the conclusion that the company should pay for it. Company by-laws and policies providing for indemnification or advancement, which may or may not be triggered during internal questioning by company counsel, are almost invariably triggered by law enforcement investigations. Even when there is no obligation to provide counsel, as a general matter, companies are well advised to do so.
While companies do not face the ultimate threat of imprisonment, a government investigation can still produce extremely serious consequences, ranging from reputational harm to existentially punishing financial penalties. Since individual culpability can readily translate into corporate liability, providing counsel for current or former employees, whose conduct is not patently beyond attribution to the company, serves the company’s interest. Well-counselled witnesses can provide the clearest and most accurate answers, which can avoid conclusions of culpability based on misinformation. And, if witnesses do not exculpate the company, communications with their counsel about what has been said to the government can dramatically increase the company’s ability to know of potential pitfalls and address them through a well-informed defence or cooperation.
36.6 Preparing for interviews
There are multiple dimensions to effective interview preparation. Counsel needs to gather as much background information as possible – through access to documents and discussions with counsel for other witnesses – to counter the informational disadvantage witnesses almost always suffer, compared with their questioners. Counsel also should ensure witnesses know the essentials of good testimony: listening carefully to questions, making sure they are understood and requesting clarification if they are unclear, knowing the bounds of their own knowledge, avoiding speculation and guessing, and admitting to a lack of knowledge or memory when that is the truthful answer. In the interview, counsel need not be a passive observer. Armed with relevant information, counsel can help steer the client’s responses to a prosecutor’s questions in a manner most favourable to the client, help to elicit or clarify information that the client may have omitted under the stress of the interview or even prompt the prosecutor to enquire as to facts favourable to the client.
Individual counsel can also serve the client well by helping guide the questioner’s expectations. Unlike deposition testimony in civil proceedings, investigative interviews by the government or company counsel involve a different dynamic, in which the questioner’s perception of the witness may have powerful ramifications. For example, the exercise of prosecutorial discretion may hinge on the perception of an individual’s credibility and sincerity. Disappointed expectations are never helpful for a client. An individual’s counsel who engages in dialogue with a questioner – regulator, prosecutor or company counsel – in advance of an interview has an opportunity not only to try to learn the scope and focus of prospective questioning, but also to help set the questioner’s expectations. The latter is always valuable, particularly when the questioner is not forthcoming about the expected scope and focus of the interview, as often happens in sensitive investigations.
Individuals and their counsel are almost invariably at an informational disadvantage when facing an investigative interview. The imbalance is rooted in the fact that the individual knows what he or she knows, likely better than anyone else, but the interviewer almost always has access to a greater universe of information. Regulators have subpoena power, and prosecutors have the enormous power of the grand jury subpoena. Those tools routinely allow the government to gather documents and testimony that are simply not available to the witness. Indeed, when the DOJ exerts its statutory right to direct financial institutions not to disclose that they have been subpoenaed, or simply requests non-disclosure, which some of the nation’s largest email hosts routinely comply with, an individual’s sensitive information may already be in the government’s hands, unbeknown to the individual. Similarly, company counsel generally has unfettered access to emails and other materials, as well as the frequent ability to press employees to cooperate in internal investigations, giving the questioner a distinct advantage.
Counsel for an individual should try to counter that imbalance by requesting access to documents, and by speaking to counsel for other individuals (through inter-counsel communications that do not raise the spectre of obstruction of justice and do not create additional testimonial paths that can come from inter-witness communications) and the questioner to gain as much context as possible. Armed with that information, counsel can better test and refresh the individual’s recollection before it is formalised in an interview.
36.7 Notes and recordings of interviews
Even with diligent preparation, investigative interviews often occur against the backdrop of an incomplete factual picture. Not only is the individual witness’s knowledge base constrained but investigative interviews are also part of an unfolding process. As additional facts emerge during an investigation, they inform both the investigator’s and the witness’s understanding, and even the witness’s recollections.
In light of that process, recordings – which create an immutable record that may carry more weight than it deserves – do not always serve the individual witness or the questioner well. Notes, while less precise and often subjective, may nevertheless form a better basis for capturing the essence of what an individual has to say at the particular point in an evolving investigation at which the interview takes place. In addition, unlike a recording, which is by definition verbatim, notes that are accurate but also reflect the note-taker’s mental impressions may enjoy work-product privilege protection, which can be of significant value to all parties in the investigative process, before all facts are known.
 Christopher LaVigne is a partner, Martin Auerbach is of counsel and Georges Lederman is a special counsel at Withersworldwide.
 The classifications of ‘target’ and ‘subject’ are defined in the US Department of Justice (DOJ) Manual, Title 9-11.151. A target ‘is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant’. A subject ‘is a person whose conduct is within the scope of the grand jury’s investigation’.
 Even an innocent individual faces potential criminal exposure when speaking to a federal agent investigating a crime, see Section 36.5, infra.
 DOJ Manual, Title 9-11.153.
 New York City Bar Association Committee Report Formal Opinion 2019-4: Representing Multiple Individuals in the Context of a Governmental or Internal Investigation (16 May 2019).
 See, e.g., Slochower v. The Board of Higher Education of the City of New York, 351 U.S. 944 (1956); Grunewald v. United States, 353 U.S. 391 (1957).
 See United States v. Balsys, 524 U.S. 666, 672 (1998).
 See, e.g., United States v. Hubbell, 530 U.S. 27, 36 (2000).
 See United States v. Doe, 465 U.S. 605 (1984).
 See LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997).
 See Baxter v. Palmigiano, 425 U.S. 308, 318–20 (1976).
 See United States v. 4003–4005 5th Ave., 55 F.3d 78, 82–83 (2d Cir.1995).
 See SEC v. McGinn, Smith & Co., 752 F. Supp. 2d 194, 209 (N.D.N.Y.).
 See LiButti v. United States, 107 F.3d 110 (2d Cir.1997).
 See Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir.1986).
 See Brown v. United States, 356 U.S. 148, 154–55 (1958).
 See Rhode Island v. Innis, 446 U.S. 291, 292 (1980).
 On 15 September 2022, the DOJ issued a policy memorandum on corporate criminal enforcement, stating that it will now take a closer look at whether corporate self-disclosures are timely as they relate to employee criminal conduct. See Memorandum from Lisa O Monaco, Deputy Att’y Gen., DOJ, on Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group (15 Sept. 2022).
 This warning is named after the Supreme Court’s decision in Upjohn Co. v. U.S., 449 U.S. 383 (1981). Failure of company counsel to provide this warning creates a risk of civil liability for the attorney, professional discipline and loss of control over statements made during the interview. See, e.g., United States v. Ruehle, 583 F.3d 600, 609 (9th Cir. 2009).