Rogers & Hardin partners Robert B. Remar, S. Gardner Culpepper III , Lori A. Gelchion, Robert C. Hussle, and Tony G. Powers produced a special two-hour ethics CLE presentation for the Georgia Chapter of the Association of Corporate Counsel. Their program, which took place March 11th before a sold-out audience, provided current guidance to help in-house counsel successfully navigate the challenging territory that comes with their role.
Assisting in the presentation were these experts:
- John Childs, Chief Litigation Counsel, Georgia-Pacific
- Paula Frederick, General Counsel, State Bar of Georgia
- Nichole Iannarone, Assistant Clinical Professor, Georgia State University College of Law.
The program was divided into three substantive areas: Ethics in Transaction Matters, A Look at Everyday Challenges; Internal Investigations and the Employee Interview: Upjohn Warnings, Legal Considerations and Ethical Issues; and Juror Misconduct: What are the Lawyer’s Ethical and Professional Obligations.
Rogers & Hardin attorney Julia Blackburn Stone provided coverage of the event, with an edited version of her article appearing in the ACC Georgia Chapter Newsletter, published in the April 3rd edition of the Daily Report. Ms. Stone’s article can be found below.
The Georgia Chapter of the Association of Corporate Counsel and Rogers & Hardin LLP co-sponsored a CLE event on March 11, 2014 entitled: “Ethics for In-House Counsel.” The program, presented by Rogers & Hardin partners Robert B. Remar (litigation), S. Gardner Culpepper, III (litigation), Lori A. Gelchion (corporate), and Tony G. Powers (litigation), explored ethical dilemmas faced by corporate counsel. The panelists for the presentations were John Childs, Assistant General Counsel, Litigation, Georgia-Pacific LLC; Paula Frederick, General Counsel, State Bar of Georgia; Robert C. Hussle, partner, Rogers & Hardin LLP (corporate); and Nicole Iannarone, Assistant Clinical Professor at Georgia State University College of Law.
Lori Gelchion kicked off the program with Part I of “Ethics in Transactional Matters: A Look at Everyday Challenges.” This portion of the program included four hypotheticals which illustrated ethical issues that may arise for in-house counsel in transactional settings. The first hypothetical highlighted the necessity of defining in-house counsel’s role in negotiations—that is, whether in-house counsel is serving as a business or a legal representative for the company. Ideally, as Ms. Frederick explained, early in the transaction, outside counsel should have a conversation with in-house counsel about in-house counsel’s role in the negotiations. The second and third hypotheticals dealt with issues concerning whether in-house counsel could provide advice to persons or entities related to the company, for example, the CFO of the company or a parent, affiliate, or subsidiary of the company. Mr. Hussle identified that, while in-house counsel is not prohibited from representing both the company and an employee or affiliate of the company, it is important to identify any conflict of interest and secure a waiver of conflict from both the company and the employee or affiliate, which both Ms. Frederick and Ms. Iannarone underscored by recommending that the waiver be in writing. The final hypothetical presented by Ms. Gelchion covered a lawyer’s ethical obligations during negotiations. All panelists agreed that, while the line is not always clear, a lawyer may puff but may not lie.
Gardner Culpepper presented Part II of “Ethics in Transactional Matters: A Look at Everyday Challenges” with a discussion about inadvertent disclosures of privileged materials. Mr. Culpepper highlighted the uncertainties of a lawyer’s obligation upon receiving inadvertently produced privileged materials because of the variance of states laws on this issue. Conflicting state rules could become an issue when, for example, in-house counsel is licensed in one state, practices is another state, and is negotiating or considering a transaction with an entity operating in a third state. The Maine rule, for example, requires that a person who receives inadvertently produced privileged material must (1) not read or stop reading the material, (2) notify the sender of the receipt of the material, and (3) return the privileged material and destroy all copies. The Georgia rule, on the other hand, is silent on whether the receiving party has an obligation even to notify the producing party about the inadvertent obligation. Ms. Frederick explained that this silence was intentional—the State Bar of Georgia looked at the ABA rules, which require only notification to the producing party about the production, and decided not to amend Georgia’s rules. She explained that lawyers have an obligation to treat others fairly but do not have to help the other side when they have made a mistake. Mr. Childs added that failing to take advantage of the other side’s mistake could risk a lawyer running afoul of the requirement that lawyers zealously represent their clients. Of course, the fight about what a lawyer should do upon receipt of inadvertently disclosed and privileged material can be avoided if, as Ms. Iannarone recommended, the issue is addressed early on in the parties’ confidentiality agreement or protective order.
For the third part of the program, Tony Powers led a discussion regarding internal investigations and employee interviews. The conversation focused on the need for in-house counsel to provide Upjohn warnings to employees before or during an employee interview that takes place in connection with an internal investigation. The Upjohn warning is a statement to the employee that: (1) counsel represents the company and not the employee individually; (2) the interview is to provide legal advice to the company; (3) the discussion is protected by the attorney-client privilege; (4) the privilege belongs to the company alone; and (5) the company may decide to provide all the information it collects to the government. All panelists agreed that giving an Upjohn warning early was advisable, even during a preliminary interview, because of the possibility that the witness’s statement to counsel would be later suppressed in litigation if the court found that an Upjohn warning was not properly given. Mr. Childs recognized, however, that the formality inherent in providing an Upjohn warning would represent a trade-off between a reduced risk that the employee would be confused about who the lawyer represented and an increased risk that the conversation would be chilled due to the formality of the interview.
Robert Remar closed the program with two video vignettes regarding juror misconduct and the lawyer’s obligations upon learning of the misconduct. The issue focused on when, and to what extent, a lawyer should report to the court about known misstatements by a potential juror during voir dire. Mr. Remar highlighted the difference between ABA Rule 3.3, which requires a lawyer to disclose fraudulent conduct by a person to the tribunal, and Georgia Rule 3.3, which requires a lawyer to disclose a fraudulent act by the client. Professor Iannarone opined that lawyers should err toward disclosure, even if Rule 3.3 does not explicitly require disclosure. She also pointed out that Rule 8.4 broadly prohibits lawyers from engaging in “dishonesty, fraud, deceit misrepresentation” and argued that non-disclosure of a juror’s perjury would be a violation of that rule. Mr. Remar further noted that as a matter of professionalism and a lawyer’s obligation to the court the misconduct should be promptly disclosed.
For more information on the program please contact a Rogers & Hardin partner.