The Law for Lawyers Today

The Law for Lawyers Today

Ethics, Professional Responsibility and More

Category Archives: In-house Counsel

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Corporate ethics compliance – challenges and benefits for both U.S. and global companies

Posted in In-house Counsel, Law Practice Management
* Our guest blogger is a Certified Compliance & Ethics Professional (CCEP)® in Thompson Hine’s Dayton, Ohio office. A growing list of businesses are eager to promote a strong culture of ethical corporate compliance, and lawyers should be ready to get on board by developing knowledge and skills to address this need. Companies devoting resources to… Continue Reading

Former Uber program to “greyball” riders draws attention to ethics rules

Posted in In-house Counsel, Social Media and Internet
This is a good one for the law school legal ethics class I’m teaching this semester:  If a company’s lawyer approves a policy that may be legal in itself, but the lawyer knows that the company will use it to evade the law, has the lawyer violated ethics rules? An analogous question arose last week when the New York Times reported that… Continue Reading

How should firms deal with impaired lawyers? Virginia opinion points to duties

Posted in In-house Counsel, Law Practice Management
The new year heralds a new start.  Many lawyers who struggle with an addiction — alcohol, drugs, gambling, food, sex — use the occasion to resolve to quit their harmful behavior, and there is a nationwide network of confidential bar organizations that can help.  But what are the obligations of a firm where an impaired lawyer works?  A… Continue Reading

Warning from WA: lawyer’s post-employment interviews with former employees not privileged

Posted in In-house Counsel, Law Practice Management, Privilege
A sharply-divided Washington Supreme Court has ruled that an organization's attorney-client privilege doesn't apply to communications between the company's lawyers and its former employees. Although Newman v. Highland School District No. 23o adheres to a minority viewpoint, the implications are troubling, and the bright-line test that the state supreme court established in a case of first impression will require new cautions in cases where Washington state privilege law applies.… Continue Reading

“No contact” rule didn’t bar interview with represented suspect, district court holds

Posted in Communication, In-house Counsel, Unrepresented parties
When the government comes knocking during a grand jury investigation, can a G-man interview one of your executives without getting consent from counsel? Last month, the U.S. District Court for the District of Maine said "Yes," and refused to suppress an executive's statements in the tax fraud case against him, holding that the ex parte chat didn't violate ethics rules. The case shows how in a federal criminal investigation, an exception to the well-known "no-contact" rule can sweep away its protection. … Continue Reading

Five signs that your law department could be headed for a privilege problem

Posted in Confidentiality, In-house Counsel, Law Practice Management, Privilege
Regulatory compliance, cyber-security issues, herding legal operations staff -- in-house legal practice is more complex than ever. One element that remains a continuing challenge is protecting the organization's attorney-client privilege. Slipping up can risk the loss of the privilege in litigation involving the company, and can potentially result in an order to produce otherwise confidential communications to the other side. What are some signs that your law department needs to tune up its privilege IQ?… Continue Reading

Can you copyright your legal brief? District court says “yes,” and finds infringement

Posted in How Not to Practice, In-house Counsel, Law Practice Management
Under deadline pressure to produce a brief? You've found one online in a public database that fits your case to a T? If you've always thought that you can make free use of another lawyer's brief, think again. You just might get sued for copyright infringement -- successfully. In Newegg Inc. v. Ezra Sutton, P.A., a California U.S. district court made that point earlier this month, when it granted partial summary judgment to plaintiff Newegg on its infringement claim -- but Newegg has come in for some criticism for pushing the case.… Continue Reading

ABA amends model ethics rules to prohibit discrimination, harassment

Posted in In-house Counsel, Law Practice Management
On Tuesday, the ABA House of Delegates amended the Model Rules of Professional Conduct to add a provision barring harassment or discrimination in all conduct related to a lawyer's practice of law. After months of debate, comment and revision, the revised Resolution 109 passed on a voice vote, without dissenting comment from the floor. The version adopted reflects an amendment introduced last month, which lowered the bar for a finding of misconduct from strict liability to a "knows or should know" standard.… Continue Reading

Firm counsel privilege prevails; New York joins favorable trend in recognizing doctrine

Posted in In-house Counsel, Privilege
Attorney-client privilege covers ethics advice that lawyers get from their law firm's general counsel, and the communications do not need to be disclosed to the client, said a unanimous five-judge panel of the New York Appellate Division last week, in a closely-watched case. In Shock v. Shnader Harrison Segal & Lewis LLP, the court ruled that the law firm was the "real client" in getting the advice from the GC, and held that the fiduciary exception didn’t apply.… Continue Reading

Privilege shields internal firm discussions about conflict, N.D. Cal. magistrate rules

Posted in Conflicts, In-house Counsel, Privilege
Internal discussions among Orrick's chief legal officer and other firm lawyers about a conflict of interest remain privileged under federal common law, a federal magistrate judge for the Northern District of California has held, in quashing a third-party subpoena directed to the firm -- even though the firm still represented the client at the time of the discussions. The opinion is the latest in the line of federal and state cases that have been developing a jurisprudence of law-firm privilege.… Continue Reading

Fired GC fends off dismissal of retaliation claim, can sue individual director, says district court

Posted in Confidentiality, In-house Counsel
A fired GC of a public company recently fended off dismissal of his whistle-blower retaliation claims in California district court.  Adding to a split in authority, the chief magistrate judge for the Northern District of California held (1) that the protections of the Dodd-Frank Act applied even though the GC made his report internally, and not to the… Continue Reading

Disloyal GC’s can be required to disgorge salary, says NJ high court — even if no economic harm

Posted in How Not to Practice, In-house Counsel
In most houses, Halloween lasts until the kids eat that last candy bar — saving it from their parents’ grasp.  So I don’t think it’s too late to spotlight a case that’s bound to scare in-house counsel, in which the New Jersey Supreme Court recently ruled that the remedy of disgorgement can be applied to “disloyal” GC’s —… Continue Reading

Unauthorized practice — a continuing risk for unregistered in-house lawyers

Posted in In-house Counsel, Licensing, Unauthorized practice
We’ve written before to remind in-house lawyers that even if you don’t sign pleadings or appear in court on behalf of your corporate employer, you are still practicing law when you give advice and participate in business transactions on your employer’s behalf.  If you do so without being duly licensed, you are straying into unauthorized practice, in… Continue Reading

More lessons from the trenches: GC’s can face challenges when managers by-pass law department

Posted in In-house Counsel
Here is the second in our series of interviews with general counsel from a variety of organizations, who share their lessons from the trenches.  You can read the first installment here. Deal documentation quandary What should general counsel do when a manager by-passes the legal department in negotiating transaction terms with another party — especially… Continue Reading

Lesson from the trenches: Playing ostrich is no option for general counsel

Posted in Conflicts, In-house Counsel, Law Practice Management
Every year, the Association of Corporate Counsel takes the temperature of inside counsel practice by surveying general counsel and chief legal officers across a wide number of sectors.  Unsurprisingly, the 2015 survey, with nearly 1,300 respondents, put ethics and compliance at the top of the list of chief legal officer concerns, together with data security,… Continue Reading

No privilege for communications by risk manager who was also a lawyer

Posted in In-house Counsel, Insurance, Privilege
Corporate organization charts increasingly include slots for departments with names like  “risk management,” “claims handling,” and the like.  When lawyers head or staff such departments, does the attorney-client privilege cover their communications with company management?  Not necessarily, says a new opinion from the Eastern District of Pennsylvania, Casey v. Unitek Global Services, Inc. Sex discrimination allegations… Continue Reading

In-house firm counsel privilege — will the favorable trend continue?

Posted in In-house Counsel, Privilege
Two trial courts — in New York and New Hampshire — recently weighed in on the in-house firm counsel privilege.  The New Hampshire Superior Court, in Moore v. Grau, recognized the parameters of the privilege.  In contrast, the New York County Commercial Division judge in Stock v. Shnader Harrison Segal & Lewis LLP ruled that a… Continue Reading

Licensing requirements trip up in-house lawyer

Posted in In-house Counsel, Licensing, Unauthorized practice
Small lapses can sometimes snowball into big problems, as an in-house Pennsylvania lawyer for a large pharmaceutical company found out when she was suspended for six months for the unauthorized practice of law. The lawyer failed to comply with her yearly continuing-legal-education requirements; as a result, she was placed on inactive status in 2009, and… Continue Reading

Court upholds attorney-client privilege for in-house counsel

Posted in In-house Counsel, Privilege
Employee communications made in confidence during a company’s internal investigation can be protected by the attorney-client privilege even where in-house counsel leads the investigation, the D.C. Circuit Court of Appeals has said in a recent ruling. While the result in In Re:  Kellogg Brown & Root, Inc. is not surprising, the case is noteworthy both… Continue Reading