Policing Corporate Crime: The Dilemma of Internal Compliance Programs

50 Pages Posted: 31 Mar 2006

See all articles by Michael Goldsmith

Michael Goldsmith

Brigham Young University

Chad W. King

Brigham Young University

Abstract

... In recent years, federal and state laws have sought to promote good corporate citizenship by encouraging business entities to establish internal compliance programs designed to avoid--or at least detect--illicit conduct. ... Upjohn Co. v. United States, the Supreme Court's seminal decision interpreting the attorney-client privilege in a corporate context, provides a preliminary framework for analyzing when compliance materials may be protected from disclosure. ... Under the subject matter test, five elements must be present for the attorney-client privilege to apply: (1) the communication must be made for the purpose of securing legal advice; (2) the employee making the communication must do so at the direction of a supervisor; (3) the direction must be given by the supervisor to obtain legal advice for the corporation; (4) the subject matter of the communication must be within the scope of the employee's corporate duties; and (5) the communication may not be disseminated beyond those persons who need to know the information. ... Because of these limitations, however, fewer corporations are likely to assume the disclosure risk inherent to a compliance audit. ... Compliance program materials include the following: compliance audit results, field notes and records of observations, raining materials, opinions, suggestions, conclusions, drafts, memoranda, drawings, photographs, computer-generated or electronically recorded information, maps, charts, graphs, and surveys. ...

Suggested Citation

Goldsmith, Michael and King, Chad W., Policing Corporate Crime: The Dilemma of Internal Compliance Programs. Vanderbilt Law Review, Vol. 50, No. 1, January 1997, Available at SSRN: https://ssrn.com/abstract=892423

Michael Goldsmith (Contact Author)

Brigham Young University ( email )

Provo, UT 84602
United States

Chad W. King

Brigham Young University

Provo, UT 84602
United States

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