Portfolio 87-1st: Legal Ethics for In-House Corporate Counsel

I. Introduction
. Author
. Introductory Material
A. Who Should Read This Portfolio?
B. What's This Portfolio About?

II. The Model Rules of Professional Conduct of the American Bar Association
. Author
A. History
B. Adoption Procedure
C. Recent Major Changes in the Model Rules
D. Rules of Particular Interest to In-House Lawyers
1. Rules relating to client fraud
2. Conflicts of interest
3. Duties to prospective client (‘beauty contests')
4. Contacts with current or former corporate employees
5. Inadvertent production of privileged communications
6. Unauthorized practice of law

III. Ethics Opinions Affecting Corporate Counsel: 2006–07
. Authors
. Introductory Material
A. A Word About Ethics Opinions
B. Protecting and Mining Metadata
C. The Expanding Client File
D. The Year of Investigating Dangerously
E. Conflicts of Interest Potpourri
F. Outsourcing
G. Contract Lawyering
H. Contact with Represented Persons
I. Lawyer Noncompetition Agreements
J. Conclusion

X. Foreword
. Author
. The Complex Role of Corporate Counsel

III-A. 2008–2009 Legal Ethics Opinions Affecting In-House Counsel
. Author
. Introductory Material
A. In-House Lawyers’ Joint Representations
1. Introduction
2. Representing corporate affiliates
3. Representing third parties
B. In-House Lawyers’ Conflicts of Interest
1. Introduction
2. In-house lawyers playing a business role
3. Common interest agreements
4. In-house lawyers suing their client/employers
5. Lawyers suing companies on whose board their partner sits
6. Law firms’ in-house lawyers
C. Discovery Issues
1. Metadata
2. Ex parte communications with represented persons
3. Permissible defensive measures
4. Ex parte e-mail communications
5. Communications with unrepresented persons
6. Discovery issues in the electronic age
D. Other Issues
. Introductory Material
1. Outsourcing
2. Rule 1.13—Organization as Client
E. Conclusion

III-A. 2008–2009 Legal Ethics Opinions Affecting In-House Counsel
. Author
. Introductory Material
A. In-House Lawyers’ Joint Representations
1. Introduction
2. Representing corporate affiliates
3. Representing third parties
B. In-House Lawyers’ Conflicts of Interest
1. Introduction
2. In-house lawyers playing a business role
3. Common interest agreements
4. In-house lawyers suing their client/employers
5. Lawyers suing companies on whose board their partner sits
6. Law firms’ in-house lawyers
C. Discovery Issues
1. Metadata
2. Ex parte communications with represented persons
3. Permissible defensive measures
4. Ex parte e-mail communications
5. Communications with unrepresented persons
6. Discovery issues in the electronic age
D. Other Issues
. Introductory Material
1. Outsourcing
2. Rule 1.13—Organization as Client
E. Conclusion

IV. Multijurisdictional Practice and Unauthorized Practice of Law for In-House Counsel
. Author
A. Introduction
B. Checklist for In-House Counsel
C. Ethics and Related Rules Governing In-House Lawyers
1. ABA Model Rule 5.5
a. In-house counsel provision
b. Federal practice provision
c. Foreign lawyers
2. Breakdown of United States jurisdictions
a. Jurisdictions that have adopted Rule 5.5(d)(1) verbatim; No registration or limited license required
b. Jurisdictions that have adopted Rule 5.5(d)(1) verbatim; Registration or limited license required or allowed
c. Jurisdictions with a rule similar to Rule 5.5(d)(1); No registration or limited license required
d. Jurisdictions with a rule similar to Rule 5.5(d)(1); Registration or limited license required or allowed
e. Jurisdictions with no rule similar to Rule 5.5(d)(1), but with registration or limited licensing requirements
f. Jurisdictions that have not adopted Rule 5.5(d)(1) or any similar rule and that have no registration or limited licensing rules for in-house counsel
g. Jurisdictions where Rule 5.5(d)(1) has been proposed, but not yet adopted
D. Consequences of Unauthorized Practice
E. Conclusion

V. Issues for In-House Counsel Serving Multi-Entity Enterprise
. Authors
A. Introduction
B. Current-Client in a Multi-Entity Setting
1. How clients are defined—the general rule
2. Simultaneous representation of multiple entities
a. When entities are wholly-commonly-owned and solvent
b. When entities are less than wholly-owned
c. When entities are insolvent
C. Entity or Individual Officer as Clients
D. Attorney-Client and Work-Product Privilege in a Multi-Entity Setting
E. Where the Rubber Meets the Road: Conflicts and Privilege Considerations When Entities Do or May Separate
1. Consider non-representation of some entities
2. Clearly limit the scope of the representation
3. Where appropriate, terminate the joint representation
4. Confirm in writing what will and will not be shared
5. In sale of asset situations, privilege may not be transferred
6. Watch what goes out the door, and act promptly if mistakes are made
7. Do not forget potential work-product claims
F. Conclusion

VI. Ethical Obligations of Corporate In-House Counsel in an Internal Investigation
. Authors
A. Introduction
B. Identifying the Client
C. Conducting the Internal Investigation
1. Should in-house counsel conduct the internal investigation?
2. Selecting outside counsel to conduct the internal investigation
3. Overseeing the internal investigation
a. The duty to ensure that the methods of investigation are legal
b. The duty to ensure the investigation is thorough, yet efficient
c. The duty to inform employees
d. The duty to ensure that the internal investigation is properly reported
e. The duty to protect attorney-client privileged information or to advise the board to waive the attorney-client privilege
D. Conclusion

VII. In-House Counsel's Obligations Upon Discovering Wrongdoing by a Corporate Client
. Authors
. Introductory Material
A. Obligations Under Current Rules
1. SEC rules
2. ABA Model Rules of Professional Conduct
B. Obligations Under the SEC's Proposed Rules
C. Conflicts & Preemption

VIII. In-House Corporate Counsel and the Attorney-Client Privilege
. Authors
A. Introduction
B. Definition of the Privilege
C. The Privilege as Applied to Corporations and In-House Counsel
D. Bias of the Courts When Applying the Privilege to Corporate Communications
E. Who Speaks for the Corporation?
1. The control group test
2. The subject matter test
F. Mixed Legal-Business Communications: The Predominant Purpose Test
G. The Attorney-Client Privilege in the Corporate Family Context
H. The Crime-Fraud Exception
I. Waiver of Privilege in the Context of Government Investigations
J. Conclusion

IX. Inside Counsel as a Member of the Board of Directors
. Authors
A. Scope
B. Three Sets of Duties
1. Lawyer
2. Employee
3. Director
C. Practical Problems in a Nut Shell
D. Red Flags
E. To Be or Not to Be

X. Unique Ethical Challenges Facing In-House Lawyers
. Authors
A. Introduction
B. Ethical Framework
1. Independent professional judgment
2. Free of pecuniary conflicts
3. Competent representation
C. Organizational Framework
1. Impact of an employee relationship
2. Who's the client?
D. Take-Over Bids, Proxy Contests, and Change of Control
E. Legal Advice and Legal Opinions
F. Representing Multiple Entities in the Corporate Family
G. Role of In-House Counsel When Outside Counsel Is Required
H. Conclusion

XII. Shareholder Derivative Litigation
. Authors
A. Introduction
B. The Attorney-Witness Rule
C. Confidentiality Issues
D. Conflict of Interest Issues
1. Is the derivative case frivolous?
2. Who are or have been counsel's individual clients?
3. Is counsel a party defendant?
4. Are counsel's actions or advice at issue?
5. Can work on the derivative case be separated from other work?
E. Concluding Remarks

XIII. The Law and Tactics of Sanctions
. Author
. Introductory Material
A. History of Sanctions
B. Sanctions Standards and Procedures
1. Rule 11 of the Federal Rules of Civil Procedure
2. 28 U.S.C. §1927
3. Rule 37 of the Federal Rules of Civil Procedure
4. PSLRA
C. Strategic Uses of Sanctions Motions

XIV. Issues for In-House Counsel in Dealing With Contacts of Represented and Unrepresented Persons
. Authors
A. Introduction
B. Who Is the Client, and Who Is a Represented Person?
1. The client
2. The represented person
a. ‘Constituents'
b. Officers and directors may not always be ‘constituents'
c. Former officers, directors, and employees generally are ‘fair game'
d. Ordinary current employees generally are not ‘constituents,' but managerial employees generally are ‘constituents'
C. Scope and Duties Related to Contacts With Represented Persons
D. Scope and Duties Related to Contacts With Unrepresented Persons

XV. In-House Counsel's Ethical Obligations When Supervising Nonlawyer Assistants
. Author
A. Introduction
B. Ethical Guidance When Supervising Nonlawyer Assistants
1. In-house counsel must make reasonable efforts to ensure nonlawyers comply with the legal ethics rules
a. Maintaining client confidences
b. Recognizing the client's identity
c. Avoiding conflicts of interest
d. Avoiding contact with represented parties
2. In-house counsel must adequately supervise nonlawyers to prevent assisting the unauthorized practice of law
3. In-house counsel must not order or ratify ethical violations by nonlawyer assistants
4. In-house counsel must rectify or mitigate known ethical violations of nonlawyer assistants

XVI. When In-House Counsel Leave: The Mandates and Limitations of Opinion 708 of the New Jersey Supreme Court Advisory Committee on Professional Ethics
. Author
A. Introduction
B. Restrictive Covenants and Non-Solicitation Agreements
C. Trade Secrets and Inventions
D. The Preclusive Effect of Information Learned by In-House Counsel Acting in a Legal Capacity
E. Conclusion

XVII. When the Lawyer-Employee Is the Defendant, Who Pays the Bill? A Survey of Corporate Indemnification for In-House Counsel
. Authors
A. Introduction
B. Ethical Limits on Attorney Indemnification
C. Practical and Public Policy Limits on Attorney Indemnification
D. Statutory Limits on Attorney Indemnification
1. Indemnification statutes generally
2. Exclusivity of statutory indemnification
3. Scope of statutory indemnification
4. Insurance as an alternative to indemnification
E. Conclusion

XVIII. Employed Lawyers Professional Liability Insurance
. Authors
A. Introduction
B. Insurance for In-House Counsel
C. Insurance as Part of the D&O Policy
D. Insurance as a Stand-Alone Employed Lawyers Policy
1. Scope of coverage
2. Duty-to-defend
3. Moonlighting and pro bono coverage
4. Potential coverage limitations
E. Conclusion

XIX. Will the Treaty Protect You?: Responding to Audit Request Letters as SOX Turns 5
. Authors
A. Introduction
B. The Treaty
1. Public company reporting requirements and the privilege dilemma
2. The treaty
C. SOX and Its Implications
1. History of SOX, § 303 and the SEC regulation
2. The impact of the rule on attorneys
3. The uncertainty of waiver post-SOX
D. Tangible Suggestions
1. A congressional correction
2. A careful approach by attorneys

XX. Disparate Positions on Confidentiality and Privilege Across National Boundaries Create Danger and Uncertainty for In-House Counsel and Their Clients
. Author
A. Introduction
B. Privilege and Confidentiality in the United States
C. Privilege and Confidentiality Across National Boundaries
1. Bifurcation of the legal profession
2. Scope of privilege
3. Application of privilege
D. Conclusion

XXI. Flattening the World of Legal Services? The Ethical and Liability Minefields of Offshoring Legal and Law-Related Services
. Authors
. Introductory Material
A. Introduction
B. Contextualizing Offshore Outsourcing Through the Lens of Globalization
C. A Relational Framework for Offshore Outsourcing
D. Focusing on Professional Ethics and Tort Liability
1. An overview
2. The ethical duties of supervision and monitoring and associated tort liability
a. Issues of professional conduct
(1). Duty of confidentiality
(2). Duty to avoid conflicts of interest
(3). Duty of competence
b. Issues of tort liability
E. Conclusion: The Impact of Outsourcing on the Future Shape of the Global Market for Legal Services

XXII. What Corporate Counsel Needs to Know About the Disciplinary Process and the Duty to Report Misconduct
. Author
A. Introduction
B. Sources of Bar Complaints
C. Most Common Causes of Bar Complaints
D. Who Receives and Investigates Complaints Against Lawyers?
E. Standards for Opening an Investigation: The Intake Stage
F. Preliminary Investigation by Bar Counsel
G. Preliminary Proceedings at the District Committee
H. Hearings Before District Committees
I. Disciplinary Board Proceedings
J. Miscellaneous Points of Interest
K. Myths and Misconceptions about Bar Complaints
L. The Duty to Report Misconduct of Another Lawyer

XXIII. The Five W's of Corporate Pro Bono: Who, What, When, Where, and Why
. Authors
. Introductory Material
A. Who
B. What
C. When
D. Where
E. Why
F. Conclusion

XXIV. Starting and Running a Successful Pro Bono Program
. Author
. Introductory Material
A. Before You Begin
1. Define pro bono service
2. Check governing bar practice rules
B. Organize Within Your Company
1. Seek management support
2. Set goals
C. Establish a Relationship With a ‘Partner' Entity
1. Focus on a single entity
2. ‘Vet' possible partners
3. Articulate responsibilities and expectations
D. Keep Your Eye on the Ethical Considerations
1. Limit corporate client involvement
2. Be competent, or get competent
3. Avoid conflicts of interest
4. Protect client confidentiality
5. Handle client funds carefully—if at all
6. Decide who pays
E. Mind the ‘Housekeeping'
1. Formalize attorney-client relationships
2. Get malpractice insurance
3. Track time and achievements
4. Report to your bar association
5. Supervise and evaluate volunteers—or not
F. Maintain Enthusiasm
1. Let the volunteers ‘own' the program
2. Hold appreciation events
3. Recognize—and be recognized for—success
G. Conclusion

XXV. Pro Bono Work at General Motors: Yesterday, Today, and Tomorrow
. Author
A. Yesterday
B. Today
C. Tomorrow
D. Conclusion

XXVI. Pro Bono Work at ExxonMobil
. Author
A. Introduction
B. Pro Bono Committee
C. Pro Bono Partnerships
D. Volunteers
E. Training Seminars
F. Conclusion

XXVII. Pro Bono Work at Aetna
. Author
A. Introduction
B. Taking the Plunge
C. Expanding the Reach: Program Variety and Geographical Needs
D. Continuing to Diversify
E. Something for Everyone
F. Closing Thought