Shhh… or You’ll Waive It: Confidentiality Pitfalls in Oregon Workplace Investigations
When an internal investigation kicks off in an Oregon workplace, confidentiality becomes the name of the game—but too often, no one knows the actual rules. Employers and attorneys alike make the mistake of thinking confidentiality is automatic or absolute. In reality, the Oregon Rules of Professional Conduct (ORPC) require intentional action to preserve ethical and legal protections.
Failing to maintain confidentiality during an investigation can result in privilege waivers, employee mistrust, and even ethical violations. If you are advising on or conducting workplace investigations in Oregon, you need to know the difference between what is private, what is privileged, and what is just wishful thinking.
Oregon Rules vs. ABA Rules
Oregon’s Rules of Professional Conduct closely follow the ABA Model Rules, but there are some important nuances. Both ABA Model Rule 1.6 and Oregon Rule 1.6 govern client confidentiality, but Oregon adds clarifying language regarding when disclosures may be made to prevent certain harms. On the issue of conflicts of interest, Oregon Rules 1.7 through 1.10 mirror the ABA’s structure but include commentary tailored to the unique considerations of representing organizations. Similarly, both ABA Rule 1.13 and Oregon Rule 1.13 make clear that when a lawyer represents a company, they do not represent the individual employees. This distinction is critical during workplace investigations, especially when employees wrongly assume the company’s attorney is “their” lawyer.
Confidential ≠ Privileged
Just because a communication is sensitive does mean it is protected. In Oregon, attorney-client privilege is only triggered when:
- A lawyer is involved;
- The communication is made in confidence;
- The communication is for the purpose of seeking or giving legal advice;
- And the communication is between someone with authority to act for the organization and the attorney.
Generally, in workplace investigations only conversations with higher-level employees who have decision-making authority based on legal advice are likely to be privileged. Interviewing a line employee? Unless it is made clear that the discussion is on behalf of counsel and for the purpose of legal advice, privilege may not apply.
The Upjohn Warning: Clarifying Who the Lawyer Represents
In Oregon, as part of preserving confidentiality and managing privilege during workplace investigations, attorneys must issue an Upjohn warning. This is a crucial step when interviewing employees. The warning informs the employee that:
- The attorney represents the organization, not the individual.
- The conversation is confidential but may not be protected by attorney-client privilege.
- The organization controls the privilege and can waive it at any time.
The Upjohn warning ensures that there is no confusion about the nature of the conversation and that the employee understands the legal implications of their statements.
Why Confidentiality Still Matters
Even if a conversation is not protected by privilege, ORPC Rule 1.6 still binds attorneys to maintain client confidences. This protects the employer’s sensitive business information and reinforces the integrity of the investigation.
From the employee side, maintaining confidentiality helps foster trust. Employees are more likely to report issues or participate in good faith if they believe the process won’t lead to retaliation or public exposure.
Common Oregon Missteps
- Assuming Everyone is Covered by Privilege — If you are interviewing someone who does not have decision-making authority, do not assume their statements are protected just because counsel is present.
- Failing to Give an Upjohn Warning — Attorneys must clarify that they represent the company and that the company controls the privilege.
- Blurring Legal and Business Roles — If the lawyer is also advising on HR policy or managing business decisions, it may muddy whether the communication was for legal advice.
- Using Blanket Confidentiality Orders — Be careful: overly broad confidentiality directives can conflict with employee rights or public policy, especially in harassment cases.
Best Practices for Oregon Employers and Counsel
- Clarify Roles Up Front — Give Upjohn warnings in every employee interview. Document them.
- Limit Circulation — Only share confidential communications with those who truly need to know. This preserves both privilege and ethical compliance.
- Train HR — Help HR staff understand what makes a conversation privileged and when legal counsel should be looped in.
- Separate Business Advice — Keep legal analysis in separate communications from operational or managerial advice.
- Mark Communications Clearly — Use headings like “Privileged and Confidential—Legal Advice” where applicable.
Final Thought
In Oregon, confidentiality during workplace investigations is an ethical tightrope. Privilege is narrower than most think, and Rule 1.6 demands more than just silence—it requires structure and discipline.
The next time someone whispers, “It’s confidential,” ask yourself: is it confidential because we want it to be or because we’ve actually made it so?
If you have questions, please contact me at (503) 776-5427 or .
Post by Samantha Toda.
