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Front Matter Cambridge University Press 978-0-521-76255-7 - Corporate Lawyers and Corporate Governance Joan Loughrey Frontmatter More information CORPORATE LAWYERS AND CORPORATE GOVERNANCE This assessment of the corporate governance role of corporate lawyers in the United Kingdom analyses the extent to which lawyers can and should act as gatekeepers, counsellors and reputational intermediaries. Focusing on external and in-house lawyers’ roles in both dispersed share-ownership and owner-managed companies, Joan Loughrey highlights the conflicts of interest that are endemic in corporate representation and examines how lawyers should respond when corporate agents provide instructions con- trary to the company client’s interests. She also considers the legitimacy of ‘creative compliance’,the ethical arguments for and against lawyers pri- oritising the public interest over their clients’ interests, and their exposure to liability if they fail to perform a corporate governance role. Finally, she considers whether the reforms to the legal profession will promote the lawyer’s corporate governance role and advances suggestions for reform. joan loughrey is currently the Director of the Centre for Business Law and Practice at the School of Law, University of Leeds, where her research interests include corporate law, corporate governance, and ethics and the legal profession. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-76255-7 - Corporate Lawyers and Corporate Governance Joan Loughrey Frontmatter More information international corporate law and financial market regulation Recent years have seen an upsurge of change and reform in corporate law and financial market regulation internationally as the corporate and institutional investor sector increasingly turns to the international financial markets. This follows large-scale institutional and regulatory reform after a series of international corporate governance and financial disclosure scandals exemplified by the collapse of Enron in the United States. There is now a great demand for analysis in this area from the academic, practitioner, regulatory and policy sectors. The International Corporate Law and Financial Market Regulation series will respond to that demand by creating a critical mass of titles which will address the need for information and high-quality analysis in this fast developing area. Series editors Professor Eilis Ferran, University of Cambridge Professor Niamh Moloney, London School of Economics and Political Science Professor Howell Jackson, Harvard Law School Editorial board Professor Marco Becht, Professor of Finance and Economics at Universite´ Libre de Bruxelles and Executive Director of the European Corporate Governance Institute (ECGI). Professor Brian Cheffins, S. J. Berwin Professor of Corporate Law at the Faculty of Law, University of Cambridge. Professor Paul Davies, Cassel Professor of Commercial Law at the London School of Economics and Political Science. Professor Luca Enriques, Professor of Business Law in the Faculty of Law at the University of Bologna. Professor Guido Ferrarini, Professor of Law at the University of Genoa and Honorary Professor, Faculty of Law, University College London. Professor Jennifer Hill, Professor of Corporate Law at Sydney Law School. Professor Klaus J. Hopt, Director of the Max Planck Institute of Comparative and International Private Law, Hamburg. Professor Hideki Kanda, Professor of Law at the University of Tokyo. Professor Colin Mayer, Peter Moores Professor of Management Studies at the Sa¨ıd Business School and Director of the Oxford Financial Research Centre. James Palmer, Partner in Herbert Smith, London. Professor Michel Tison, Professor at the Financial Law Institute of the University of Ghent. Andrew Whittaker, General Counsel to the Board at the UK Financial Services Authority. Professor Eddy Wymeersch, Chairman of the Committee of European Securities Regulators (CESR); Co-chair of the CESR–European Central Bank Working Group on Clearing and Settlement, and part-time Professor of Commercial Law, University of Ghent. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-76255-7 - Corporate Lawyers and Corporate Governance Joan Loughrey Frontmatter More information CORPORATE LAWYERS AND CORPORATE GOVERNANCE JOAN LOUGHREY © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-76255-7 - Corporate Lawyers and Corporate Governance Joan Loughrey Frontmatter More information cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, SaoPaulo,Delhi,Tokyo,MexicoCity˜ Cambridge University Press The Edinburgh Building, Cambridge CB28RU,UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521762557 C Joan Loughrey 2011 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Loughrey, Joan, 1968– Corporate lawyers and corporate governance / Joan Loughrey. p. cm. – (International corporate law and financial market regulation) Includes bibliographical references and index. ISBN 978-0-521-76255-7 (hardback) 1. Corporate governance – Law and legislation – Great Britain. 2. Corporate lawyers – Great Britain. 3. Corporation law – Great Britain. I. Title. II. Series. KD2088.L68 2011 346.410664 – dc22 2011008368 ISBN 978-0-521-76255-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-76255-7 - Corporate Lawyers and Corporate Governance Joan Loughrey Frontmatter More information To Andrew, Molly and Fergus, finally © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-76255-7 - Corporate Lawyers and Corporate Governance Joan Loughrey Frontmatter More information CONTENTS Preface page xiii Table of cases xv Table of statutes xxvi Table of statutory instruments xxxi International treaties xxxii List of abbreviations xxxiii 1Introduction 1 The role of corporate lawyers and their firms: the issues 1 Thescopeofthebook 7 Corporate lawyers 7 The large corporate firms 8 Smaller firms 10 In-house lawyers 10 The corporate client 12 Corporate governance 14 The organisation of the book 17 2 The international perspective 19 Introduction 19 The comparative landscape: the United States, Australia and Canada 21 The United States 21 The US Legal profession and corporate scandals 21 Aprofessionunderscrutiny 26 The ABA Model Rules 28 The Sarbanes-Oxley Act 2002 29 Australia 30 Canada 35 vii © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-76255-7 - Corporate Lawyers and Corporate Governance Joan Loughrey Frontmatter More information viii contents Extraterritorial regulation of the corporate lawyer 38 Europe and the in-house lawyer 38 The cross-border provision of services and double deontology 41 The global role of UK (and US) corporate lawyers 45 3 The roles of the corporate lawyer 48 Introduction 48 The legal services business 49 The professional role and public service 56 A public-service role? 56 The standard conception of the lawyer’s role 62 Zealous advocacy 63 Neutrality 65 Renegotiating the professional role 70 The social functions of the corporate lawyer 70 Counsellor 72 The duty to counsel on ethical issues 73 Counselling respect for the law 75 Gatekeeper 76 Whistle-blower 78 Conclusion 80 4 Identifying the corporate client 82 Introduction 82 Establishing the retainer 83 Express and implied retainers 83 Implying a retainer: relevant factors 86 Identifying the client in owner-managed companies 88 Start-ups 88 Majority shareholders and alter ego companies 89 Minority shareholders 92 Identifying the client in groups 93 The consequences of acting for more than one corporate constituent 96 Conflicts of interest 96 Informed consent 98 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-76255-7 - Corporate Lawyers and Corporate Governance Joan Loughrey Frontmatter More information contents ix The reasonableness of representation – representing joint owners 100 Standing to complain 102 Avoiding conflicts of interest 105 Limited retainers 105 Joint representation and information barriers 106 Confidentiality and privilege 107 Dispersed share-ownership companies 108 Identifying the client 109 Three Rivers (No. 5) and actual authority 109 Section 40 of the Companies Act 2006 and apparent authority 111 Agent acting without authority 112 The effect of the director’s assertions of the client’s approval 115 Agents possessing authority but acting in breach of duty to the company 117 The lawyer’s response to misconduct: who is the client for up-the-line reporting? 118 Conclusion 122 5 The role of the corporate lawyer in intra-corporate
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