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1 NORTON ROSE FULBRIGHT FORUM TM Web Seminar A Monthly Ethics and the lawyer's professional responsibilities in securities and other business transactions September 10, 2013 First Tuesday of Every Month

2 Continuing Education Information We have applied for one hour of California, Minnesota, Texas and Virginia CLE and New York non-transitional ethics CLE credit. Newly admitted New York attorneys may not receive non-transitional CLE credit. For attendees outside of these states, we will supply a certificate of attendance which may be used to apply for CLE credit in the applicable bar or other accrediting agencies. Norton Rose Fulbright will supply a certificate of attendance to all participants that: 1. Participate in the web seminar by phone and via the web 2. Complete our online evaluation that we will send to you by within a day after the event has taken place 2

3 Administrative Information Today s program will be conducted in a listen-only mode. To ask an online question at any time throughout the program, click on the question mark icon located on the tool bar in the bottom right side of your screen. Time permitting, we will answer your question during the session. Everything we say today is opinion. We are not dispensing legal advice, and listening does not establish an attorneyclient relationship. This discussion is off the record. You may not quote the speakers without our express written permission. If the press is listening, you may contact us, and we may be able to speak on the record. 3

4 Barbara D Aquila Partner Fulbright & Jaworski LLP Over thirty years of experience in complex business, class action, and employment litigation Represents corporations in federal & state courts, administrative agencies, and arbitrations Clients include major FORTUNE 500 corporations and significant privatelyheld companies Benchmark Litigation s Inaugural List of Top 250 Women in Litigation; Chambers USA; The Best Lawyers in America; Top 25 Women Industry Leaders, Minneapolis/St. Paul Serves as Chair of Minneapolis Litigation Department Univ. of Minnesota Law School, Juris Doctor, Cum Laude Univ. of Notre Dame, B.B.A., Magna Cum Laude 4

5 Harva Dockery Partner Fulbright & Jaworski LLP Over thirty years of experience helping public and private companies in complex corporate and securities transactions, including mergers, acquisitions, dispositions, securities offerings, exchange offers, tender offers, proxy contests, going private transactions and workouts Client industries include energy, manufacturing, food and retail industries Serves as Vice Chair of Norton Rose Fulbright s Securities Practice Group Serves as a member of the Professional Responsibility Committee Serves as Co-Chief Diversity Officer The Best Lawyers in America, One of the Most Powerful and Influential Women in Texas, Top 25 Women Industry Leaders in Dallas University of Texas School of Law, Juris Doctor University of Texas, B.A. 5

6 Richard W. Painter Law Professor University of Minnesota School of Law Active in law reform efforts aimed at deterring securities fraud and improving ethics of corporate managers and lawyers Associate Counsel to the President in the White House Counsel's office, serving as the chief ethics lawyer for the President, White House employees and senior nominees to Senate-confirmed positions in the Executive Branch Serves as a S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School Author of Getting the Government America Deserves: How Ethics Reform Can Make a Difference published by Oxford University Press in January 2009 Yale Law School, Juris Doctor Harvard University, B.A. 6

7 Rules concerning a lawyer s basic duties 1.1 Duty of Competence Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation 1.3 Diligence Requiring lawyer to act with reasonable diligence 7

8 Rules concerning a lawyer s basic duties 1.6 Confidentiality of Information In general, lawyers are not allowed to disclose client information Affirmative duty: must make reasonable efforts to prevent inadvertent or unauthorized disclosure or unauthorized access to, information relating to the representation of a client Allows confidential client information to be revealed in certain circumstances to the extent the lawyer reasonably believes necessary: to prevent: death or substantial bodily harm where reasonably certain ; client from committing crime/fraud reasonably certain to result in substantial injury to the financial interests or property of another and for which lawyer s services have been used; or mitigate or rectify substantial injury to the financial interests or property of another that has or is reasonably certain to result from crime or fraud in furtherance of which the client has used the lawyer's services; to obtain advice to comply with ethical obligations or comply with law/court order; to defend or pursue claim in controversy between lawyer and client; or to detect and resolve conflicts of interest, generally so long as it would not prejudice the client 8

9 Rules concerning relationships with clients 1.7 Conflicts of Interest (Current Clients) A lawyer cannot represent a client if there is a significant risk that the representation will be materially limited by a lawyer s other obligations, either to clients or personal interests. 1.9 Duties to Former Clients A lawyer shall not represent another person in the same or a substantially related matter in which that person s interests are materially adverse to the interests of a former client, unless there is informed consent. In general, a lawyer shall not reveal information relating to the representation of former client or use such information to the disadvantage of the former client. 9

10 Rules concerning relationships with non-clients 4.2 Communications with Represented Parties Generally, there can be no communications with represented parties, except through the party s attorney. 4.3 Dealing with Unrepresented Parties A lawyer must make reasonable efforts to clarify his or her role to an unrepresented person and cannot pose as a disinterested party when the attorney is actually acting as an advocate. 10

11 Information every securities lawyer should know - Important SEC Decision: In the Matter of John H. Gutfreund, et al. (1992): The head of the brokerage firm s Government Trading Desk had submitted a false bid to the government. Three senior officers learned of the falsehood and were advised by the chief legal counsel to report the false bid to the government. No report was made for months, and the head of the Government Trading Desk committed additional violations of the federal securities laws. The decision acknowledged that the chief legal counsel had learned of false bid and had advised the executives that submission of the bid was a criminal act, that the government should be told, and even later urged disclosure upon learning that the government had not yet been advised. But, the decision criticized the lawyer because he did not direct that an inquiry be undertaken and failed to recommend that appropriate procedures, reasonably designed to prevent and detect future misconduct, be instituted, or that other limitations be placed on [the offending executive s] activities. The decision found the chief legal counsel to be a supervisor for purposes of Section 15(b)(4)(E) and 15(b)(6) of the Securities and Exchange Act of 1934, noting that he was responsible for taking reasonable and appropriate action It is not sufficient for one in such a position to be a mere bystander to the events that occurred. 11

12 Information every securities lawyer should know: Section 307 of SOX (2002): Statutory requirement for SEC to issue rules to set minimum standards of professional conduct for attorneys appearing and practicing before the SEC in representing issuers, including a rule: requiring an attorney to report evidence of a material violation of securities law or breach of fiduciary duty or similar violation by the company or any agent thereof, to the chief legal counsel or the chief executive officer of the company (or the equivalent thereof); and if the counsel or officer does not appropriately respond to the evidence (adopting, as necessary, appropriate remedial measures or sanctions with respect to the violation), requiring the attorney to report the evidence to the audit committee of the board of directors of the issuer or to another committee of the board of directors comprised solely of directors not employed directly or indirectly by the issuer, or to the board of directors SEC Rules Standards of Professional Conduct for Attorneys: 12

13 Ethical issues that trap even the most sophisticated securities and business lawyer Conflicts arising from past representation: Competing considerations: 1) Right of prior client regarding confidences and privileges See e.g., ABA Model Rules Prof. Resp ) Substantial right to be represented by attorney of choice See e.g., In re Estate Janacek, 610 N.W.2d 638, 642 (Minn. 2000) Duty to preserve client confidences does not cease when representation ends; obligation is continuing 13

14 Scenario #1 A lawyer previously represented Client A, a publicly-held company, in formulating its SEC disclosures and handling its M&A due diligence. Client A hires a new CEO, and that CEO hires new counsel both in-house and in private practice to handle the company s legal work relating to the company s securities and business transactions. Client B, a governmental body, seeks to hire the former counsel of Client A to pursue a claim against Client A relating to state disclosure laws. Can the lawyer proceed? Does it matter whether the lawyer was inhouse or in private practice when serving Client A? Not enough to say the past matter was about an SEC issue and the new matter involves a different matter under state law Test is same or substantially related matter ABA Model Rule 1.9 Analyze: a) whether the matters involve the same transaction or b) if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the [new] client s position in the subsequent matter 14

15 Scenario #1 Conflicts from past representation: What to do? Initial problems Most client conflict systems gather information by client v. non-client designations, and not by issue(s) which is the necessary information for employing the same or substantially related matter test Conflict may exist years later, and the problem is drilling down Tips for the lawyer/law firm/legal department Make sure client conflict system is robust and ask necessary questions Train lawyers to use the system properly; have checks and balances Look at the heart of what the two matters concern If there is an issue, to proceed, you must obtain former client s informed, written consent; seek consent promptly In certain circumstances (lawyer changes firms), a firewall may work Ramifications of improper action Ethics board complaint Disqualification (party seeking disqualification has burden of proof) Litigation vs. agency disqualification Tip for the former client Act promptly to raise any issue 15

16 Scenario #2 Joint representation and reporting up A lawyer represents a publicly-traded company and uncovers serious wrongdoing involving a violation of the SEC laws. How must the lawyer proceed? How may the lawyer proceed? Does it matter whether the lawyer is in-house or in private practice? Must report up to higher authority until resolved or until you reach the Board: Rules of the SEC s Rules of Practice and Conduct; see also e.g., ABA Model Rule 1.6 Whether you may proceed to report outside the company depends on: Model rules of the applicable state Is the disclosure required by law or court order? May v. may not v. must turns on the facts and the jurisdiction (e.g., is the lawyer s assistance required to commit the violation?) Some questions to ask on reporting and/or withdrawal: Is there a reasonably certain potential of substantial bodily harm or death? Is there a crime or fraud that will be committed or will a disciplinary rule be violated? Is the crime or fraud reasonably certain to result in substantial financial harm? Is the client s objective repugnant or against the lawyer s belief? Tip If the situation is sticky, seek the advice of competent ethics counsel, either within or outside the organization or law firm 16

17 Scenario #3 Investigations and representation before agency A lawyer represents a publicly-traded company in an SEC investigation and in presenting witnesses before the SEC. How must the lawyer proceed? Can the lawyer represent more than one client? May the lawyer s obligations change? Does the stage of the matter make a difference? Lawyer must make clear whom he/she represents Difference for in-house v. private practice In-house lawyer s client is, by definition, the company What happens when, during the course of the investigation, the lawyer uncovers information of wrongdoing, such as the fact that CFO lied? 17

18 Scenario #3 Investigations and representation before agency Tips: Remember ABA Model Rules 4.2 and 4.3 Remember to be clear about representation; make sure a new engagement letter is signed for each matter and that the language is clear as to who is represented and what happens if there is later a divergence of interests In a multi-party representation, continually assess whether the clients interests are aligned, and timely and properly cease multiple representation when the situation dictates Remember defense and indemnification obligations that company may have and ensure they are properly fulfilled Consider whether withdrawal as counsel for a particular client in a particular matter affects whether the lawyer/law firm may continue to represent the client in other matters Remember that ethical obligations include the duty to be competent for example, to know the law and to advise the client accordingly (e.g., selective waivers) 18

19 Scenario #4 Possession of problematic information A high-level executive is hired to join Company A. He is very knowledgeable and, in performing his job in the first year, seems to have a remarkable ability to help Company A successfully compete against Company B. One year after the executive starts, the lawyer for Company A learns the executive has been using confidential and privileged documents of Company B. How should the lawyer proceed? Problem: How does Company A un-ring the bell? What should be done with the confidential and privileged documents? Does it matter if there is ongoing litigation between the two companies? If Company A is publicly-held, are there additional considerations? Tips: Assess the situation and take prompt and appropriate action Ascertain what must be done with the information, including whether it must be returned to Company B Disclosure must be made as necessary under the facts and circumstances 19

20 20 Questions?

21 Continuing Education Information If you are requesting CLE credit for this presentation, please complete the evaluation that you will receive from Norton Rose Fulbright. If you are viewing a recording of this web seminar, most state bar organizations will only allow you to claim selfstudy CLE. Please refer to your state s CLE rules. If you have any questions regarding CLE approval of this course, please contact your bar administrator. Please direct any questions regarding the administration of this presentation to Terra Worshek at 21

22 Thank you for being our guest today. Please join us next month on October 8, 2013 for the NORTON ROSE FULBRIGHT FORUM TM A Monthly Web Seminar 22

23

24 Disclaimer Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ( the Norton Rose Fulbright members ) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients. References to Norton Rose Fulbright, the law firm, and legal practice are to one or more of the Norton Rose Fulbright members or to one of their respective affiliates (together Norton Rose Fulbright entity/entities ). No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any Norton Rose Fulbright entity (whether or not such individual is described as a partner ) accepts or assumes responsibility, or has any liability, to any person in respect of this communication. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of the relevant Norton Rose Fulbright entity. The purpose of this communication is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright entity on the points of law discussed. You must take specific legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual contact at Norton Rose Fulbright

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