Complying with the FCPA- An Exploration of Ethical Issues Raised by Recent Cases Are the Professional Conduct Rules Any Different?

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1 Complying with the FCPA- An Exploration of Ethical Issues Raised by Recent Cases Are the Professional Conduct Rules Any Different? By Roseann B. Termini, Esq.

2 What Do You Think? What does effective communication entail? Distinguish between the following statements: Is it ethical? Is it moral? A lawyer advocate, problem solver and? How should an attorney act with diligence? What is zealous advocacy? Top Ethical Practice Pointers * Ø Strive for excellence. Ø Listen intensely to your clients and to opposing counsel. Ø Maintain high competence and integrity. Ø Remember civility is paramount. Ø Keep current- changes in federal and state law. Ø Remember your moral compass. Ø Follow the rules. Ø Play tough but play fair. Ø Treat people with respect. *Source: c Roseann B. Termini, Esq., All rights reserved. Unauthorized use strictly prohibited by law. Food and Drug Law: Federal Regulation of Drugs, Biologics, Medical Devices, Foods, Dietary Supplements, Cosmetics, Veterinary and Tobacco Products 6 th ed.; Volume XII: Professionalism, Politics, Foreign Corrupt Practices, Product Classification, Globalization and the Future available as a stand-alone Ebook. 2

3 Model Rules of Professional Conduct The Rules of Professional Conduct establish minimum standards that all lawyers must for the practice of law in Pennsylvania. The following is the url for the Pennsylvania Rules of Professional Conduct. (last accessed March 13, 2013). Model Rules of Professional Conduct Adoption: Pennsylvania as an Example Client-Lawyer Relationship Rule 1.0 Terminology Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer Rule 1.3 Diligence Rule 1.4 Communication Rule 1.5 Fees Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 1.9 Duties to Former Clients Rule 1.10 Imputation of Conflicts of Interest: General Rule Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral Rule 1.13 Organization as Client Rule 1.14 Client with Diminished Capacity Rule 1.15 Safekeeping Property Rule 1.16 Declining or Terminating Representation Rule 1.17 Sale of Law Practice Rule 1.18 Duties to Prospective Client Rule 1.19 Lawyers Acting as Lobbyists Counselor Rule 2.1 Advisor Rule 2.2 [Reserved] Rule 2.3 Evaluation for Use by Third Persons Rule 2.4 Lawyer Serving as Third-Party Neutral Advocate Rule 3.1 Meritorious Claims and Contentions Rule 3.2 Expediting Litigation Rule 3.3 Candor toward the Tribunal 3

4 Rule 3.4 Rule 3.5 Rule 3.6 Rule 3.7 Rule 3.8 Rule 3.9 Fairness to Opposing Party and Counsel Impartiality and Decorum of the Tribunal Trial Publicity Lawyer as Witness Special Responsibilities of a Prosecutor Advocate in Non-adjudicative Proceedings Transactions with Persons Other Than Clients Rule 4.1 Truthfulness in Statements to Others Rule 4.2 Communication with Person Represented by Counsel Rule 4.3 Dealing with Unrepresented Person Rule 4.4 Respect for Rights of Third Persons Law Firms and Associations Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 5.3 Responsibilities Regarding Non-lawyer Assistant Rule 5.4 Professional Independence of a Lawyer Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law Rule 5.6 Restrictions on Rights to Practice Rule 5.7 Responsibilities Regarding Law-related Services Public Service Rule 6.1 Voluntary Pro Bono Public Service Rule 6.2 Accepting Appointments Rule 6.3 Membership in Legal Services Organization Rule 6.4 Law Reform Activities Affecting Client Interests Rule 6.5 Nonprofit and Court Annexed Limited Legal Services Programs Information About Legal Services Rule 7.1 Communication Concerning a Lawyer's Services Rule 7.2 Advertising Rule 7.3 Direct Contact with Prospective Clients Rule 7.4 Communication of Fields of Practice and Specialization Rule 7.5 Firm Names and Letterhead Rule 7.6 [Reserved] Rule 7.7 Lawyer Referral Service Maintaining the Integrity of the Profession Rule 8.1 Bar Admission and Disciplinary Matters Rule 8.2 Judicial and Legal Officials Rule 8.3 Reporting Professional Misconduct Rule 8.4 Misconduct Rule 8.5 Disciplinary Authority; Choice of Law 4

5 Application of the Model Rules of Professional Conduct The interplay of ethical considerations and food and drug law matters has become increasingly significant. All of the rules of Professional Conduct are important. The following are examples of important Rules for this session. CLIENT-LAWYER RELATIONSHIP Rule 1.1. Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.4. Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer in private practice shall inform a new client in writing if the lawyer does not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance, and shall inform existing clients in writing at any time the lawyer s professional liability insurance drops below either of those amounts or the lawyer s professional liability insurance is terminated. A lawyer shall maintain a record of these disclosures for six years after the termination of the representation of a client. Rule 1.6. Confidentiality of Information. (a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). 5

6 (b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3. (c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another; (3) to prevent, mitigate or rectify the consequences of a client s criminal or fraudulent act in the commission of which the lawyer s services are being or had been used; or (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer s representation of the client; or (5) to secure legal advice about the lawyer s compliance with these Rules; or (6) to effectuate the sale of a law practice consistent with Rule (d) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated. COUNSELOR Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS Rule 4.1. Truthfulness in Statements to Others. In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Comment: Misrepresentation (1) A lawyer is required to be truthful when dealing with others on a client s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4. Statements of Fact (2) This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in 6

7 negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Crime or Fraud by Client (3) Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client s crime or fraud. If the lawyer can avoid assisting a client s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6. Rule 1.6 permits a lawyer to disclose information when necessary to prevent or rectify certain crimes or frauds. See Rule 1.6(c). If disclosure is permitted by Rule 1.6, then such disclosure is required under this Rule, but only to the extent necessary to avoid assisting a client crime or fraud. MAINTAINING THE INTEGRITY OF THE PROFESSION Rule 8.4. Misconduct. It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. 7

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