Whose Lawyer Am I Anyway? Nancy Gillette, General Counsel, Ohio - PowerPoint PPT Presentation

Whose Lawyer Am I Anyway? Nancy Gillette, General Counsel, Ohio State Medical Association Rob Portman, Principal, Powers Pyles Sutter & Verville, PC Michael Williams, General Counsel, American Association of Clinical Endocrinologists

First Things First • ABA Model Rules of Professional Conduct • State Rules • Advisory Opinions – ABA, state, local • Disciplinary Proceedings • Court cases

First Things First • Competence – Model Rule 1.1 – the FIRST rule • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. • Diligence – Model Rule 1.3 • Act with reasonable diligence and promptness

Competence • Do you have to be competent at everything or just know what you don’t know ? • Be reasonably informed and know when to seek advice/hire counsel • OC can rely on other attorneys in firm • GC needs broad base of knowledge and know when to retain OC • GC should preserve organizational information and oversee organizational compliance • Keep up with CLE • In law and its practice (including new technology) • ABA Formal Opinion 482 – ethical obligations related to disasters • ABA Formal Opinion 483 – ethical obligations related to data breaches

Who Is Your Client? • Rule 1.13 (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents . • Generally —it’s the organization and the Board as governing body • Includes subsidiaries • Does not include third parties • Allegiance is to the organization and not the constituents

Who Is Your Client? • Rule 1.13 (d) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7 ( conflicts ). If the consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. • Explain the identity of the client when organization’s interests are adverse to constituents

Rule 1.13 – Organization as Client • (b) reporting up • (c) withdrawal (may be “noisy” depending on circumstances) • only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. • Independence • Rule 2.1- 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.

Who Is the Client? Model Rule 1.2 – Scope of Representation and Allocation of Authority between Client and Lawyer . . . (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Thorny Questions – In House • GC vav CEO • GC vav other staff (no for investigations, HR issues, etc.) • GC vav Board • GC vav members • Have Written Policies to address common issues • Board handbook – board tasks v delegated tasks • Compensation Committee policies/procedures (especially as related to CEO hiring/review) • National v chapters/state v local affiliates

Thorny Questions Outside Counsel • Outside Counsel vav Board • Board’s relationship with CEO • Annual review and compensation – scheduling, record-keeping, benchmarks • Financial oversight • Intersection of Board, Staff, General Counsel • Embezzlement, fraud and other significant matters • OC vav Board • OC vav Split Board

Doing business with the client? Rule 1.8: • (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: • (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; • (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and • (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. • Kaye v. Rosefielde , 75 A.3d 1168 (N.J. Super.Ct. App. Div. 2013) • ethical rules violated when in-house counsel formed a new company on behalf of client and granted himself an equity ownership without complying with Rule 1.8

Dealing with non-clients • Rule 4.2 In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. • Rule 4.3 In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. 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. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. • Contract negotiations • Business advice or legal advice?

Confidentiality/Privilege Issues • Why ? • What? • Elements • Work product doctrine • Unique Corporate Issues • Inadvertent Disclosure

Confidentiality/Privilege Issues WHY? • Good legal assistance requires full disclosure of a client’s legal problems • A client will only reveal the details required for proper representation if her confidences are protected.

Confidentiality/Privilege Issues Confidentiality v. Privilege? • Confidentiality: an ethical duty you, as the lawyer, owe your client; you can be disciplined for violating it. (MRPC 1.6) • Privilege: an evidentiary rule protecting your communications with your client from disclosure during litigation or another proceeding. It is owned by the client, can be waived by the client, and if waived, can negatively affect your client in that proceeding or others. (FRE 501 and 502, Common law)

Confidentiality/Privilege Issues – Codes/Rules Model Rules of Professional Conduct : Rule 1.6 – Confidentiality of Info. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary [in accordance with 7 express exceptions to the rule] (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client . FRE 501 – Privilege in a federal action is defined by the common law. In a civil action where state law governs, that state’s privilege rules apply. FRE 502 – Defines waiver rules.

Confidentiality/Privilege Issues – Common Law Four Key Elements of Privilege: 1. A communication; 2. Made between privileged persons; 3. In confidence; 4. For the purpose of obtaining or providing legal assistance for the client.

Confidentiality/Privilege Issues – Elements Defined 1 – COMMUNICATION Virtually all types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege. Privileged communications include essentially any expression undertaken to convey information in confidence for the purpose of seeking or rendering legal advice. “The privilege extends to verbal statements, documents and tangible objects conveyed by both individual and corporate clients to an attorney in confidence for the purpose of any legal advice” Haines v. Liggett Grp., Inc ., 975 F.2d 81, 90 (3d Cir. 1992)

Confidentiality/Privilege Issues – Elements Defined 2 - MADE BETWEEN PRIVILEGED PERSONS • Privileged persons include: • The client (or prospective client) • The lawyer • Agents of the client and lawyer • Communications must be BETWEEN privileged persons. • Only certain communications with employees of a corporate client meet the privileged person element.