The Journey from Legal Technician to Trusted Advisor: Pick up Your Road Map Here

Transcription

1 The Journey from Legal Technician to Trusted Advisor: Pick up Your Road Map Here Thursday, April 25, 2013

2 2013 NATIONAL EMPLOYMENT LAW CONFERENCE APRIL 25 Panel Presentation The Journey from Legal Technician to Trusted Advisor: Pick up your road map here. 75 minute presentation 15 minute question & answer period OUTLINE In a lively, conversational format, we will provide a developmental road map, based on our collective experiences in law firms, in-house legal departments and business units, for making a successful transition from serving in a legal technician function to that of a trusted business advisor, sought out for one s wisdom and judgment, in addition to one s legal expertise. 1. We will review the rules of professional responsibility related to conflicts of interest as they relate to advising CEOs and other executives, particularly of publicly held companies. 2. We will discuss areas to focus on: substantive legal knowledge, leadership development, communication and learning style assessment, risk management and business education. 3. We will provide a chart with the attributes of the legal technician v. the trusted business advisor. 4. We will provide a written framework, with specific recommended activities, designed to help attorneys develop a portfolio of skills, knowledge and experience to become a trusted advisor. I. Trust What is trust? What is a trusted advisor? Will emphasize Stephen Covey principles and other experts tips and provide examples from our experiences. 1

3 II. Ethics Ethics primer on attorney-client privilege/who is client/work product/conflicts of interest within corp. among parties/joint defense agreements with emphasis of the following rules of professional responsibility: 1.13 Organization as a client, 1.7 and 1.8 Conflict of interest Current Clients, 1.4 Communications, 1.6 Confidentiality of information Will emphasize need to keep ethics fine points top of mind as a trusted advisor, as one becomes more involved in strategic business decisions. Will discuss symbiotic relationship between in-house and law firm attorneys in preserving attorney-client privilege Attorney-Client Privilege Elements Legal advice of any kind is sought From a professional legal advisor acting in that capacity (bar admission in at least one jurisdiction generally required) Communications made for that purpose In confidence By the client At the client s insistence permanently protected unless privilege is waived The privilege shields certain communications between an attorney and client from disclosure, allowing for an open dialogue without the fear that what the client tells the attorney will be compromised. There are instances where the privilege does not apply and the privilege can be waived. Absent one of these exceptions, all client communications with their attorney during actual counsel are held confidentially. Attorney-Client Privilege Key Questions Is the client seeking legal advice? Is the attorney rendering legal advice? What is Privileged? Oral or written communications with the client Memorialization of oral communications with the client Communications for the purpose of retaining counsel Communications with attorney s paralegals & support staff in connection with the solicitation or rendering of legal advice What is Not Privileged? Underlying facts 2

4 Communications where client is not seeking legal advice (for in-house attorneys if the issue really involves business advice and not legal advice then privilege does not apply) Communications with third parties Advice that aids in commission of illegal activity Protected information that client intentionally or inadvertently waives The Privilege as it relates to In-House Counsel and Legal Staff Determining the existence of the attorney-client relationship becomes much more complicated when the attorney is working in- house for an entity. In this situation, the corporation or other legal entity (not individual employees) is the client. Therefore, the corporation holds the privilege, decides what should be protected, and when to waive the privilege. Also, the privilege only applies to legal advice, not business advice or processes. Questions for in-house counsel: 1. Is communication for purpose of business advice, legal advice or both? 2. What is the primary purpose of the communication? See Vioxx Products Liability Litigation, 501 F.Supp. 2d 789 (E.D. La. 2007) (document prepared for simultaneous review by non-legal and legal personnel found not to be privileged because not prepared primarily to seek legal advice). The standard for determining whether the attorney-client privileged applies in a corporate setting was established in Upjohn Co. v. United States, 449 U.S. 390 (1980). There the United States Supreme Court held that the attorney-client privilege could protect communications between any employees and counsel for the corporation so long as certain criteria were met. Upjohn Test Whether communications were made by corporate employees to corporate counsel at direction of superiors for purposes of obtaining legal advice Whether communications contained information needed by corporate counsel for legal analysis/advice Whether information concerned matters within scope of employee s duties Whether employee was aware that reason for communication was to obtain legal advice for corporation (Must give Upjohn Miranda warning must disclose that: (1) represent the corporation, (2) conversation covered by attorney-client privilege, (3) privilege belongs to and is controlled by the corporation, (4) company in its sole discretion can decide whether to waive privilege and disclose the information.) Whether communications were ordered to be and remained confidential 3

5 Tips for Preserving Privilege Determine what privilege applies to communications and conduct communications to maximize protection (label or written communications as privileged and indicate that messages should not be forwarded to others, document legal issues raised in meeting to later prove that communications during meeting were privileged, etc.) Limit distribution of legal advice only to people who need to know Establish policy on copying and distributing documents containing legal advice and opinions Identify documents that are privileged, mark them and establish process for handling and tracking distribution of privileged documents Strategic use of outside counsel to preserve privilege The Work Product Doctrine Work Product Doctrine Protects from discovery documents or material things prepared: In anticipation of litigation or for trial; and By or for a party or by or for a party s representative In anticipation of litigation means because of the prospect of litigation or primarily to assist in litigation. Work Product Doctrine Protects: Written statements, private memoranda, fact chronologies, mental impressions, personal beliefs and related information assembled by attorneys in anticipation of litigation Materials prepared by anyone at the direction of attorney where future litigation is a distinct possibility. Including materials prepared by: paralegals and support staff, consultants/ investigators/experts engaged by attorney, client acting at attorney s direction, jury research consultants The Work Product Doctrine is a Qualified Privilege May be overcome by showing substantial need and showing there is no other access to information without undue hardship Mental impressions, conclusions, opinions and legal theories of attorney remain protected (FRCP 26(b)(3)) Tips for Preserving Work Product Doctrine Identify work product and create privilege log Include mental impressions and opinions in documents that summarize interviews and evidence Allow outside counsel, rather than company/ in-house counsel, to retain consultants, investigators & experts 4

6 General Tips to Avoid Waiver Include agreement for asserting claims of privilege in pretrial scheduling order Obtain protective order or confidentiality agreement Establish FRCP 26(b)(5)(B): inadvertent waiver procedure Attorney-Client Privilege for foreign subsidiaries: Attorney-- client privilege varies greatly outside the United States. Attorney-client privilege with in-house counsel does not exist in many jurisdictions outside of the U.S. And where it does exist in other countries, it may only exist for communications with external counsel in limited situations. Common law jurisdictions: (Ex. US, UK, India, Australia) Purpose of privilege is to encourage free communication between lawyer and client Privilege belongs to the client and client can waive Interpretation governed by law Civil Law Jurisdictions: (Ex. France, Germany, Brazil, Mexico) Purpose of privilege is to prevent attorney from disclosing information detrimental to defense of the client, and only applies to documents in the possession of the attorney Governed by law where attorney is located (but must be attorney licensed within the jurisdiction for the privilege to apply) In the EU and many other countries, the attorney-client privilege does not apply to individuals who are not members of the bar of the EU (or the particular country). So US attorneys providing advice to EU countries will not be able to assert the attorney-client privilege. This is also the case in several Asia Pacific countries. In instances where legal advice is sought on a sensitive matter in a foreign subsidiary, it is necessary to retain local counsel to whom the privilege does attach and provide legal advice in consultation with the local law firm. ABA Guidance on use of Paralegals All states prohibit the unauthorized practice of law and have an ethics rule like Rule 5.5 of the ABA Model Rules, which prohibits lawyers from aiding another person in the unauthorized practice of law. Although what constitutes the unauthorized practice of law differs in specifics from state to state, there are generally three things that every state as well as Guideline 3 of the Utilization Guidelines prohibits a paralegal or other nonlawyer from doing. First, a paralegal may not establish the attorney-client relationship. Second, a 5

7 paralegal may not give legal advice. Third, a paralegal may not appear in court on behalf of a client and this prohibition covers the taking and defending of depositions and the signing of pleadings or other papers to be filed in court. Limited exceptions to this third prohibition exist; for example, certain federal and state agencies, certain tribal courts and certain state courts under local rules permit to make appearance on behalf of clients. In addition to these three hard and fast rules, it is incumbent on the lawyer, not the paralegal, to determine what constitutes the practice of law in her jurisdiction. Lawyers should keep in mind that, in some jurisdictions, any exercise of independent legal judgment constitutes the practice of law. A lawyer avoids running afoul of the prohibition against aiding in the unauthorized practice of law through proper delegation and supervision of paralegals. Supervision is key because the lawyer is responsible for the actions of any paralegal that she employs and proper supervision gives both the lawyer and the client confidence that the paralegal is taking substantively and ethically proper actions. Proper delegation and supervision begins when selecting qualified persons as paralegals. A paralegal can be qualified either by education (there are some several hundred paralegal education programs that are approved by the American Bar Association) or by experience or a combination of both. Second, proper delegation and supervision means that a lawyer should match the paralegal's skill set with the task that needs to be done. For example, one should not delegate real estate closing tasks to a litigation paralegal unfamiliar with real estate transactions or assign inexperienced paralegals to tasks without appropriate instruction. A lawyer can both ensure having qualified paralegals and provide proper supervision by providing orientation and continuing training programs, either formal or on-the-job, for the paralegal. Third, a lawyer should properly guide the paralegals' work. This means that adequate instructions should be given when assigning a new project to a paralegal. Moreover, the lawyer should also monitor the progress of each assignment to ensure that the paralegal is proceeding on the right track. Most important, proper supervision requires that the lawyer review the paralegal's work product. It is not enough that the paralegal has performed a particular task dozens of times and will likely again perform the task properly. The lawyer must review the substantive work and be available to the paralegal to provide guidance in even routine assignments. Permitting a paralegal to issue work product on a substantive assignment without a lawyer's review can constitute aiding in the paralegal's unauthorized practice of law. 6

8 As a general matter, lawyers should implement policies to avoid putting their paralegals into difficult positions relative to client demands. For example, lawyers should implement a policy requiring their paralegals to identify themselves to new callers or visitors as paralegals who are not licensed to practice law. For small firms, the firm may want to use the standard engagement letter to clearly identify the lawyers and the paralegals. Paralegals should also be periodically reminded to defer all legal issues to the lawyers. These procedures would comport with Guideline 4 of the Utilization Guidelines that requires lawyers to take "reasonable measures" to ensure that clients, courts and other lawyers are aware that an individual working with the lawyer is a paralegal and not licensed to practice law. For both the lawyer and the paralegal, there are practical ramifications to engaging in and aiding in the unauthorized practice of law. In most states, unauthorized practice of law is a misdemeanor offense. Accordingly, the paralegal can be charged with a violation of law. That means that the paralegal can be subject to an injunction against future conduct and, possibly, civil penalties. For the lawyer, if the governing disciplinary organization determines that the lawyer failed to properly supervise or otherwise aided the paralegal in the unauthorized practice of law, the lawyer may be subject to penalties such as public censure, injunction, civil penalties, disgorgement of fees and even suspension and disbarment. Also, because a paralegal's work merges into and becomes the lawyer's work, a lawyer will be held liable for the malpractice of the paralegal working under his supervision. Being charged with malpractice is one of the most severe reputation blows that a lawyer can experience. III. Skills Development Importance of knowing your style (learning, communication, leadership, comportment) Will emphasize why-- e.g. imperative to understand strengths/weaknesses, continual skills development for different roles, maximum point of contribution cycle Skills needed for trusted advisor Attorney attributes by level plus examples, e.g., managing something from start to finish, delving into projects beyond advisory role to generate concrete result, ability to be influential on non-legal issues, embracing risk 7

9 IV. Self-Awareness Are you self-aware? Truly? Test it. Will emphasize need to reality check your brand, know how you're perceived, address perception issues/18 min. book. Describe ways to do so. -Consequences of lack of self-awareness. Where do people tend to go wrong? Do race and gender affect how one is perceived? V. Relationship Building The likeable lawyer notion Trusted advisor to colleagues: emphasize importance of AUTHENTIC (define & provide examples) strategic relationships for law firm attorneys (biz development) and in house attorneys (career development) Personal board of directors: What is it? Why needed? How to create? How to select? VI. Managing your Career Examples of noteworthy activities from our consolidated career development roadmap plus examples of pivotal career decisions: -Offer of job/opportunity that takes you way outside of your area of expertise. Can you/should you turn down? How to decide whether to accept? How to negotiate? -You don't get "the job". You don't make partner/managing partner. What now? VII second tips for trusted advisors or those aspiring to be -1 or 2 personal guiding principles from each panelist VIII. 15 Minute Question & Answer Period 8