Duties of Corporate Counsel

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1 April 1, 2015 Making It To The Finish Line & How Not To Stumble Over Your Ethical Obligations When Handling Internal Investigations, Whistleblower Complaints & Social Media A Presentation to ACC-GNY Kathleen N. Massey, Dechert LLP Claude M. Tusk, Dechert LLP Allison B. Tomlinson, Gensler 2015 Dechert LLP

2 Duties of Corporate Counsel Inside counsel are subject to the same ethical responsibilities as outside counsel. Rule 1.0(h) of the NY Rules of Professional Conduct ( RPC ) defines a law firm to include the legal department of a corporation. A corporate attorney owes a duty to act in accordance with the interests of the corporate entity itself. His client is the corporation. Evans v. Artek Sys. Corp., 715 F.2d 788, 792 (2d Cir. 1983). As both an employee, and an attorney, for the corporation, an in-house counsel owes a fiduciary duty to the corporation, as well as a duty of loyalty. See Bigda v. Fischbach Corp., 898 F. Supp. 1004, (S.D.N.Y. 1995), aff'd, 101 F.3d 108 (2d Cir. 1996). April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 2

3 Conflicts of Interest Be careful not to establish an attorney-client relationship inadvertently with the company s constituents a relationship can be established through conduct and inferred by courts and disciplinary authorities. In-house lawyers may represent the company and any of its constituents if the representation does not create a conflict of interest. RPC 1.13(d). A lawyer generally shall not represent a client if a reasonable lawyer would conclude that the representation will involve the lawyer in representing differing interests. RPC 1.7 When an in-house lawyer is dealing with the corporation s employees and other constituents, and it appears the organization s interests may differ from the constituents, the lawyer must explain that he is the lawyer for the organization and not for the constituents. RPC 1.13(a); ABCNY Op. No April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 3

4 Conflicts of Interest However, despite a conflict of interest, a lawyer may represent both clients if: she reasonably believes she can represent both competently and diligently; the representation is not prohibited by law; the representation does not involve a claim by one against the other; and each client gives informed written consent. RPC 1.7 April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 4

5 Comms. Between Company Counsel and Unrepresented Parties A lawyer communicating with an unrepresented party on behalf of a client shall not state or imply that the lawyer is disinterested. RPC 4.3 A lawyer shall not give legal advice to an unrepresented person whose interests are or have a reasonable possibility of being in conflict with the client s interests, except to advise the person to secure counsel. RPC 4.3 April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 5

6 Comms. Between Company Counsel and Unrepresented Parties When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. RPC 4.3 Merely refraining from misleading or deceptive conduct may not be sufficient. An attorney has an obligation to clarify that she is not the nonclient s attorney, where the lawyer knows or has reason to know the unrepresented nonclient misapprehends the lawyer s role in the matter. ABCNY Op. No April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 6

7 Comms. Between Company Counsel and Represented Parties RPC 4.2 prohibits ex parte communications with a a party the lawyer knows to be represented by another lawyer in the matter. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 7

8 Comms. Between Company Counsel and Represented Parties Purposes of the rule: Miano v. AC & R Adver., Inc., 148 F.R.D. 68, 75 (S.D.N.Y. 1993) (1) prevent situations in which a represented party is taken advantage of through the greater skill of an adversary's attorney; (2) prevent an attorney from circumventing opposing counsel to obtain unwarranted concessions or liability-creating statements or disclosures from a party (3) preserve the integrity of the attorney-client relationship; (4) prevent the disclosure of protected information, most particularly attorney-client communications; and (5) allow a party in litigation to have disclosed to it facts acquired by its adversary, through adequate and timely discovery. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 8

9 Comms. Between Other Counsel and Corporate Employees Employees are considered parties and are out of bounds when their acts or omissions in the matter under inquiry are binding on the corporation (i.e., alter egos) or imputed to the corporation for purposes of its liability, or when the employees are implementing the advice of counsel. Niesig v. Team I, 76 N.Y.2d 363, 374 (N.Y. 1990). High-level management employees deemed parties for these purposes, but executive assistant to former CEO was not deemed to be such a party. Miano, 148 F.R.D. at 77. Court rejected arguments that parties include all corporate employees or only employees in the control group. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 9

10 Comms. Between Other Counsel and Corporate Employees [T]he mere existence of general counsel, without any particular involvement in the matter in issue, is insufficient to render a corporation represented. To conclude otherwise would almost always provide a no contact zone around employees of corporations, that would be unavailable to individual parties or litigants, even where an attorney-client relationship did not yet exist regarding the matter in issue. Miano,148 F.R.D. at 80. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 10

11 Confidentiality A lawyer shall not knowingly reveal confidential information or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless the client gives its informed consent, disclosure is impliedly authorized to advance the client s interests, or an exception (discussed below) applies. RPC 1.6(a) Confidential information consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. RPC 1.6(a) April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 11

12 Confidentiality There is an ongoing duty to keep confidences. Former in-house attorney has a continuing duty to protect former employer s confidential information. See Mancheski v. Gabelli Grp. Capital Partners, Inc., 802 N.Y.S.2d 473, 475 (2d Dep t 2005); see also Greene v. Greene, 47 N.Y.2d 447, 453 (N.Y. 1979). If an in-house lawyer has had an attorney-client relationship with one of the company s constituents, the lawyer may not be able to disclose statements made by that individual. RPC 1.6, 1.9(a) April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 12

13 Confidentiality Attorney-Client Privilege applies to: Confidential communication Between a lawyer and her client For the purpose of (1) rendering or (2) seeking legal advice. Does not apply to: Communications for business, as opposed to legal, purposes Is waived: If there is a lack of confidentiality or disclosure to a party outside the zone of privilege April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 13

14 Confidentiality Exceptions to confidentiality obligations: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime; (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud; April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 14

15 Confidentiality Exceptions to confidentiality obligations (cont d): (4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer s firm or the law firm; (5) (i) to defend the lawyer or the lawyer s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; (6) when permitted or required under these Rules or to comply with other law or court order. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 15

16 How Not To Stumble In Day-to-Day Interactions Be clear about role Counsel? Compliance Officer? Business Advisor? If Counsel, then Attorney-Client Privilege applies to confidential communications seeking or rendering of legal advice. If Compliance Officer, then Privilege does not apply to compliance activity. If Business Adviser, then Privilege does not apply to business activity. Note that whether outside counsel adverse to the company may contact an in-house lawyer depends on role being played, as well as position. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 16

17 How Not To Stumble When Handling Internal Investigations Be clear that you represent the company, not the employees, & disclose that your loyalty is to the company, not the employees If an employee s interests diverge from company s, advise employee that he may want to retain separate counsel If employee retains counsel, communicate through counsel regarding the investigation and related issues Minimize disclosure of information protected by the Attorney-Client Privilege if disclosure necessary, ensure employee understands communication is confidential, and clarify that Privilege belongs to the company and may be waived by the company, not the employee April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 17

18 How Not To Stumble When Handling Whistleblower Complaints Securities Whistleblower Incentives and Protections Program, part of the Dodd-Frank Wall Street Reform and Protection Act, provides that: The SEC Is Required to Provide a Monetary Reward of 10% to 30% To Qualified Whistleblowers For the Voluntary Provision of Original Information about a Violation of the Securities Laws Derived through Independent Knowledge or Analysis To the SEC That Leads to a Successful Enforcement Action by the SEC. See 15 U.S.C. 78u-6; 17 C.F.R F-1; et seq. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 18

19 How Not To Stumble When Handling Whistleblower Complaints Be clear that you represent the company, not the whistleblower Ensure whistleblower understands that information provided will be disclosed as appropriate to respond to the complaint in the best interests of the company Follow internal reporting procedures April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 19

20 How Not To Stumble When Handling Whistleblower Complaints Ensure appropriate investigation is conducted If there is a reasonable likelihood of litigation, confidential material prepared is subject to a qualified protection from discovery Minimize disclosure of whistleblower s identity to avoid potential retaliation claims April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 20

21 How Not To Stumble When Handling Whistleblower Complaints By Counsel Federal law, including the SEC s Whistleblower Incentives and Protections Program, and State law protect whistleblowers from retaliation. Whistleblower protections that usually trump employees duties of loyalty and confidentiality do not necessarily apply. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 21

22 How Not To Stumble When Handling Whistleblower Complaints By Counsel Conduct rules and policy considerations are potential limiters: Duty of undivided loyalty to client Prohibition on representing a client if there is significant risk the lawyer s professional judgment will be impaired by his personal interests (RPC 1.7) Client has the power to discharge the lawyer if he is pursuing interests adverse to the client (RPC 1.16) Counsel must keep client confidences unless client consents, disclosure is necessary to prevent a crime or in certain disputes between the client and the attorney, including when lawyer reasonably believes disclosure is necessary to defend himself against an accusation of wrongdoing. (RPC 1.6) April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 22

23 How Not To Stumble When Handling Whistleblower Complaints By Counsel Courts in different jurisdictions have reached disparate decisions. Keller v. Lowes Corp., 69 A.D.3d 451 (1st Dep t 2010): Appellate court reversed dismissal of a counterclaim for breach of fiduciary duty in Title VII retaliation suit; in-house lawyer, like any lawyer, as any fiduciary, is charged with a high degree of undivided loyalty to his client. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 23

24 How Not To Stumble When Handling Whistleblower Complaints By Counsel US ex rel. Fair Laboratory Practices Assocs. v. Quest Diagnostics, Inc., 734 F.3d 154, 165, 167 (2d Cir. 2013): Second Circuit held former general counsel violated RPC 1.9(c) by participating in qui tam action against former employer and disclosing more confidential information than necessary to prosecute the action. Second Circuit cited District Court s rejection of the notion that in-house counsel could spill his guts and freely disclose [his employer s] confidential information in a qui tam whistleblower action. State of New York ex rel. David Danon v. Vanguard Group, Inc., No (Sup. Ct., NY Cty, Compl. Filed May 8, 2013): Former Vanguard tax lawyer brought qui tam action under NY False Claims Act, while still employed; may have complained to IRS and SEC and may pursue retaliation claim under Dodd- Frank; defendant may assert termination was based on removal of company documents in violation of company rules; if so, SEC regulations prohibit employers from relying on confidentiality policies to retaliate for complaints protected under Dodd-Frank; plaintiff may assert was performing dual roles as attorney and business advisor; case will likely also raise crime-fraud exception to ethical rules; motion to dismiss argued recently. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 24

25 Ethical Issues Regarding the Use of Social Media The ABA and the NY Bar Associations require that lawyers keep abreast of changes in legal practice, including the benefits and risks associated with relevant technology. See ABA Model Rules of Prof. Conduct, Rule 1.1, Cmt. 8; ABCNY Op. No Among the risks associated with relevant technology are those concerning: Direct presence in media by or on behalf of the company; Presence in media by employees other than as representatives of the company; Use of media to recruit or screen employees; and Special considerations for lawyers using social media. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 25

26 How Not To Stumble When Handling Issues Concerning the Use of Social Media Direct presence in media by or on behalf of the company Develop a clear written policy regarding engagement with the public over social media. Such a policy should: prohibit deception; ensure accurate statements; and comply with applicable marketing and advertising requirements. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 26

27 How Not To Stumble When Handling Issues Concerning the Use of Social Media Presence in media by employees other than as representatives of the company Develop a clear written policy prohibiting employees from posting content critical of their employers, disclosing confidential material about the company, disparaging competitors, or engaging in cyber-bullying. Disclose that the company reserves the right to monitor employees personal use of social media, and monitor for compliance, though employees privacy interests must also be considered. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 27

28 How Not To Stumble When Handling Issues Concerning the Use of Social Media Use of media to recruit or screen employees Remember the Golden Rule: if an employment practice is unlawful, it does not become less so because it occurs online. Avoid the exclusive use of social media for recruitment: could be deemed to constitute discrimination against protected classes. Develop guidelines for the use of social media in screening: consider deferring online screening until late in the hiring process; keep hard copies of site materials on which any decisions are based; and be consistent in use of information obtained through social media. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 28

29 How Not To Stumble When Handling Issues Concerning the Use of Social Media Special considerations for lawyers using social media Commercial and Federal Litigation Section of the NYS Bar Association developed a set of Social Media Guidelines about ethical challenges of social media. They address: Attorney advertising; Furnishing of legal advice through social media; Review and use of evidence from social media; Ethically communicating with clients; and Researching social media profiles or posts of jurors and reporting juror misconduct. April 1, 2015 Making It To The Finish Line: A Presentation for ACC-GNY 29

30 For further information, visit our website at dechert.com. Dechert practices as a limited liability partnership or limited liability company other than in Dublin and Hong Kong.

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