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Staying Ethical in an In-House Legal Environment

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Staying Ethical in an In-House Legal Environment Staying Ethical in an In-House Legal Environment Presented by: Mark Freel Jeremy Weinberg Laura N. Wilkinson Partner Senior Attorney Partner Locke Lord LLP Hasbro, Inc. Locke Lord LLP [email protected] [email protected] [email protected] Providence, RI Providence, RI Providence, RI In conjunction with: April 3, 2019 Ethics for In-House Counsel Under the Rules of Professional Conduct June 8, 2017 Pag AM 68266307.1 Locke Lord LLP and Association of Corporation Counsel—Northeast Present Staying Ethical in an In-House Legal Environment Table of Contents Tab Number Description of Document Tab 1 Power Point: “Staying Ethical in an In-House Legal Environment” Tab 2 Form of language for representing both the company and the employee Tab 3 The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 2004-02: Representing Corporations and Their Constituents in the Context of Governmental Investigations Tab 4 Representing the Company in an Internal Investigation: Upjohn Warning and District of Columbia Opinion 269 (1/15/97) Tab 5 Sarbanes-Oxley Part 205: Standards of Professional Conduct for Attorneys Appearing and Practicing Before the Commission in the Representation of an Issuer Tab 6 Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association Tab 7 ABA Formal Opinion 99-415: Representation Adverse to Organization by Former In-House Lawyer Tab 8 The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 2008-02: Corporate Legal Departments and Conflicts of Interest Between Represented Corporate Affiliates Tab 9 Rhode Island Supreme Court Ethics Advisory Panel Opinion No. 2012-03 (2/9/12) Staying Ethical in an In-House Legal Environment April 3, 2019 Page i Selected Model Rules of Professional Conduct Rule 1.0 (Terminology) Tab 10 a. Model Rule b. Rhode Island Rule Rule 1.6 (Confidentiality of Information) Tab 11 a. Model Rule b. Rhode Island Rule Rule 1.7 (Conflicts of Interest: Current Clients) Tab 12 a. Model Rule b. Rhode Island Rule Rule 1.8 (Conflicts: Current Clients: Specific Rules) Tab 13 a. Model Rule b. Rhode Island Rule Rule 1.9 (Duties to Former Clients) Tab 14 a. Model Rule b. Rhode Island Rule Rule 1.10 (Imputation of Conflicts of Interest: General Rule) Tab 15 a. Model Rule b. Rhode Island Rule Rule 1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees) Tab 16 a. Model Rule b. Rhode Island Rule Staying Ethical in an In-House Legal Environment April 3, 2019 Page ii Rule 1.13 (Organization as Client) Tab 17 a. Model Rule b. Rhode Island Rule Rule 1.18 (Duties to Prospective Client) Tab 18 a. Model Rule b. Rhode Island Rule Rule 3.3 (Candor Toward the Tribunal) Tab 19 a. Model Rule b. Rhode Island Rule Rule 4.1 (Truthfulness in Statements to Others) Tab 20 a. Model Rule b. Rhode Island Rule Rule 4.2 (Communication with Person Represented by Counsel) Tab 21 a. Model Rule b. Rhode Island Rule Rule 4.4 (Respect for Rights of Third Persons) Tab 22 a. Model Rules b. Rhode Island Rule Rule 5.1 (Responsibilities of a Partner or Supervisory Lawyer) Tab 23 a. Model Rule b. Rhode Island Rule Rule 5.2 (Responsibilities of a Subordinate Lawyer) Tab 24 a. Model Rule b. Rhode Island Rule Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law) Tab 25 a. Model Rule b. Rhode Island Rule Staying Ethical in an In-House Legal Environment April 3, 2019 Page iii Rule 8.2 (Judicial and Legal Officials) Tab 26 a. Model Rule b. Rhode Island Rule Rule 8.3 (Reporting Professional Misconduct) Tab 27 a. Model Rule b. Rhode Island Rule Rule 8.5 (Disciplinary Authority; Choice of Law) Tab 28 a. Model Rule b. Rhode Island Rule Staying Ethical in an In-House Legal Environment April 3, 2019 Page iv Tab 1 Staying Ethical in an In-House Legal Environment April 3, 2019 Tab 1 Staying Ethical in an In-House Legal Environment Mark Freel, Locke Lord LLP Jeremy A. Weinberg, Hasbro Laura Wilkinson, Locke Lord LLP April 3, 2019 Providence, Rhode Island ABA Model Rules “The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983. They serve as models for the ethics rules of most states. Before the adoption of the Model Rules, the ABA model was the 1969 Model Code of Professional Responsibility. Preceding the Model Code were the 1908 Canons of Professional Ethics (last amended in 1963).” http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pr ofessional_conduct.html 2 Application of Rules to In-House Counsel ■ Rules apply to in-house counsel whether you are acting in legal capacity or in business capacity. ■ Problem: Rules not written with in-house lawyers in mind. 3 Application of Rules to In-House Counsel ■ Problems? ■ One client ■ Employee of the client ■ Interpersonal relationships ■ Access to information ■ Multiple hats 4 Rule 1.1 Competence ■ Rule 1.1 “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 5 Rule 1.1 Competence—General ■ Business leadership expects in-house counsel to know how to do everything. ■ Daunting task. ■ Use continuing legal education to your advantage— find courses that align to the company’s legal problems and your role within the company. 6 Rule 1.1 Competence—Technology ■ Competence includes competence in technology. ■ ABA 2017 formal opinion: when transmitting client information over the internet in order to keep it confidential, lawyers must: ■ Understand and use reasonable electronic security measures; ■ Train lawyers and non-lawyer assistants in technology and information security; and ■ Conduct due diligence on vendors providing communication technology. 7 Rule 1.1 Competence—CLE ■ Lawyer must comply with all continuing legal education requirements to which the lawyer is subject. Rule 1.1, Comment 6 ■ Failure may subject you to discipline, including suspension. ■ If suspended, may also call into question whether advice is privileged. 8 Rule 5.5 Unauthorized Practice of Law ■ General Rule: “A lawyer may not practice law in jurisdiction in violation of the legal profession in that jurisdiction or assist another in doing so.” ■ In-house counsel exception: A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in that jurisdiction, may provide legal services to his employer or its organizational affiliates as long as there is no requirement for pro hac vice admission in the matter. 9 Rule 5.5 Unauthorized Practice of Law ■ This permission does not extend to the provision of personal legal services to officers and employees of the employer. ■ Rhode Island: ■ Requires that the employment be by a “corporation or other entity at an office in this state.” ■ Requires registration and payment of a fee. ■ Massachusetts: ■ Services must be provided “through an office or other systematic and continuous presence” in Massachusetts. ■ Requires registration and payment of a fee; annual filing; and notice of change in employer. 10 Rule 5.5 Unauthorized Practice of Law ■ Consequence—almost blew the privilege: ■ An associate at Gucci America was admitted in California but changed his bar status to inactive prior to joining the company. ■ In a case against Guess, a magistrate judge held that because he was not a licensed attorney, none of his communications relevant to the case were subject to the attorney-client privilege. ■ The ruling was eventually overturned, but could have been disastrous. 11 Rule 5.5 Unauthorized Practice of Law Take away: ■ Maintain your license and keep up with CLE requirements of your state and Rhode Island if you are registered as in- house counsel. ■ Check local rules to be sure there is no registration requirement. ■ Do not hold yourself out as a lawyer in that jurisdiction until you register. ■ Include a disclaimer indicating the limits of your licensure. ■ Do due diligence on prospective hires to be sure their license is valid. 12 Model Rule 1.7 Conflict of Interest: Current Client ■ A lawyer shall not represent a client if the representation involves a concurrent conflict of interest unless. ■ The lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client. ■ The representation is not prohibited by law. ■ The representations are not in connection with the same litigation or other dispute resolution proceeding. ■ Each affected client gives informed consent, confirmed in writing. The RI rule follows the Model Rule. Massachusetts’ rule is worded differently, but the outcome is the same. 13 Parent-Subsidiary Conflict? ■ In-house counsel may ethically provide services to a subsidiary; however, there is a potential for a conflict of interest under Rule 1.7 if their interests are different. ■ Examples: ■ Transactions between companies ■ When one becomes insolvent ■ Where ownership or indebtedness varies or is partial 14 Parent-Subsidiary Conflict? ■ Must recognize that when services are provided to the subsidiary, then the subsidiary, not the parent, is the client. ■ Must reasonably believe that the representation of each client will not be materially affected. ■ Both the parent and the subsidiary must consent in writing to such representation after full disclosure. 15 Parent-Subsidiary Conflict ■ Must maintain a personal, direct and responsible relationship with each client and allegiance in performance of particular services may not be divided. ■ Unless the parent’s interests in the matter are identical that of the subsidiary, the parent may not direct the manner in which the services are performed for the subsidiary or dictate the advice to be given.
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