Ethical Considerations for In-House Counsel: Rules vs. Reality © 2012 Fox Rothschild LLP 1 Ethical...

Ethical Considerations for In-House Counsel: Rules vs. Reality © 2012 Fox Rothschild LLP

1

Ethical Considerations for In-House Counsel: Rules vs. Reality

May 4, 2012

Presented byPeter L. Blacklock, Esq.

Elliot A. Hallak, Esq.


2

Fox Rothschild LLP A Full-Service National Law Firm with

Offices in:PRINCETON, NJROSELAND, NJSAN FRANCISCO, CASTANFORD, CTWARRINGTON, PAWASHINGTON, D.C.WEST PALM BEACH, FLWILMINGTON, DE

ATLANTIC CITY, NJBLUE BELL, PAEXTON, PALAS VEGAS, NVLOS ANGELES, CANEW YORK, NYPHILADELPHIA, PAPITTSBURGH, PA

Ethical Considerations for In-House Counsel: Rules vs.

Reality


3

Admissions / Licensing Internal Investigations Privilege Social Media

Agenda

Ethical Considerations for In-House Counsel: Rules vs.

Reality


4

Admissions/Licensing

ABA Model Rules of Professional ConductRule 5.5 Unauthorized Practice of Law; Multi-jurisdictional Practice of Law

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.


5


Rules Regulating The Florida BarRule 17 - Authorized House Counsel Rule


6


(1) the giving of legal advice to the directors, officers, employees, and agents of the business organization with respect to its business and affairs;

(2) negotiating and documenting all matters for the business organization; and

(3) representation of the business organization in its dealings with any administrative agency or commission having jurisdiction; provided however, authorized house counsel shall not be

permitted to make appearances as counsel in any court, administrative tribunal, agency, or commission situated in the state of Florida unless the rules governing such court or body shall

otherwise authorize, or the attorney is specially admitted by such court or body in a case.

a) Authorized Activities. An authorized house counsel, as an employee of a

business organization, may provide legal services in the state of Florida to the business organization for which a registration pursuant to rule 17-1.4 is effective, provided, however, that such activities shall be limited to:

Florida Rule 17-1.3 Activities


7


Florida Rule 17-1.3 Activities(b) Disclosure. In any communication with individuals/organizations outside

of the business organization, authorized house counsel shall disclose that they are not licensed to practice law in the state of Florida. If the communication is in writing, authorized house counsel shall disclose in writing the name of the business organization, their title or function, and that they are not licensed to practice law in the state of Florida. For

example, the disclosure may state "J. Doe, XYZ Corporation, Authorized House Counsel, member …..(name of other state bar).…. only or not a member of The Florida Bar." In performing activities under this

subdivision, authorized house counsel shall not represent themselves to be members of The Florida Bar licensed to practice law in this state.


8


Florida Rule 17-1.4

(a) Filing with The Florida Bar. The following shall be filed with The Florida Bar by an individual seeking to be certified as authorized house counsel:

(1) A certificate from an entity governing the practice of law in all United States jurisdictions in which the registrant is licensed to practice law certifying that the registrant is in active status and is a member in good standing; or is in inactive status. If in inactive status, the certificate must certify that the registrant is in voluntary inactive status and was not placed

on inactive status involuntarily. If available, the registrant must provide a certificate of good standing in addition to the certificate regarding the registrant's inactive status.


9


Florida Rule 17-1.4 (a) (continued)

(2) a sworn statement by the registrant that the registrant:

(A) has read and is familiar with chapters 4 and 17 of the Rules Regulating The Florida Bar as adopted by the Supreme Court of Florida and will abide by the provisions thereof;

(B) submits to the jurisdiction of the Supreme Court of Florida for disciplinary purposes, as defined in chapter 3 of the Rules Regulating The Florida Bar and rule 17-1.6 herein, and authorizes notification to or from the entity governing the practice of law of each state, territory, or the District of Columbia in which the registrant is licensed to practice law of any disciplinary action taken against the registrant; and

(C) is not subject to a disciplinary proceeding or outstanding order of reprimand, censure, or disbarment, permanent or temporary, for professional misconduct by the bar or courts of any jurisdiction and has not been permanently denied admission to practice before the bar of any jurisdiction based upon such person’s character or fitness


10


Florida Rule 17-1.4(b) Filing with The Florida Bar (continued)

(3) a certificate from a business organization certifying that: it is qualified as set forth in subdivision (b) of rule 17-1.2; that it is aware that the registrant is not licensed to practice in Florida; and it is not relying upon The Florida Bar in any manner in employing the authorized house counsel;

(4) an appropriate registration application to The Florida Bar as promulgated by the executive director of The Florida Bar; and

(5) an appropriate remittance of a filing fee prescribed and set by the executive director of The Florida Bar in an amount not to exceed the amount applicable for admission to the bar examination for an attorney licensed in a state other than Florida.


11


ABA Rule 5.5(a-b)Unauthorized Practice Of Law;

Multijurisdictional Practice Of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in

doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:(1) except as authorized by these Rules or other law, establish an office or other

systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted topractice law in this jurisdiction.


12


Florida Rule 4-5.5 Unauthorized Practice Of Law;

Multijurisdictional Practice Of Law

(a) Practice of Law. A lawyer shall not practice law in a jurisdiction other than the lawyer’s home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so.


13


Florida Rule 4-5.5

(b) Prohibited Conduct. A lawyer who is not admitted to practice in Florida shall not:

(1) except as authorized by other law, establish an office or other regular presence in Florida for the practice of law;

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in Florida; or


14


Florida Rule 4-5.5

(b) Prohibited Conduct (continued). A lawyer who is not admitted to practice in Florida shall not:

3) appear in court, before an administrative agency, or before any other tribunal unless authorized to do so by the court, administrative agency, or tribunal pursuant to the applicable rules of the court, administrative agency,

or tribunal.


15


Gucci America, Inc. v. Guess?, Inc., 2010 U.S. Dist. LEXIS 65871 (S.D.N.Y. June 29, 2010)

“An essential element of the attorney-client privilege, under any standard, is that an attorney participates in the communication. An attorney is one who is ‘admitted to the bar of a state or federal court.’ Moreover, the ‘[bar] membership must be of a type that licenses one to practice law.’ Thus, the attorney-client privilege contemplates that the client communicate with an individual who is not simply trained in the law, but actually authorized to engage in the practice of law.” [citations omitted]


16

Admissions/LicensingGeorgia-Pacific Plywood Company v. United States Plywood Corporation, 18 F.R.D. 463 (S.D.N.Y. 1956) (corporate general counsel officed in NY, but licensed in PA and D.C., was a lawyer for privilege purposes)

Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442 (D. Del. 1982) (privilege upheld in communication with in-house counsel in France even where such communications would not be privileged in France)

Florida Marlins Baseball Club, LLC v. Certain Underwriters at Lloyd's, 900 a) So. 2d 720 (Fla. 3d DCA 2005) (active membership in MO, sufficient to maintain privilege)


17


Attorney 1 – G.C. of Subsidiary “B”

Subsidiary “B”

Attorney’s 2 – G.C. of Parent “A”

Parent “A”

Acquisition Candidate “C”

Subsidiary “B” – DE LLC


18

Proliferation of Claims

By Government

By Receivers and Trustees

By Aggressive Plaintiffs’ Bar


19

The Internal Investigation

When do you initiate an internal investigation?- When you have a credible violation of the

law or company policy that has or can cause substantial injury to the corporation

Err on the side of caution - If you think an investigation might be

necessary, it probably is


20

Who Conducts Investigation

Inside counsel vs. outside counsel

Combination of both


21

Independence Is Key

In-house counsel may be perceived as being less independent

In-house counsel generally perceived as more motivated to try to protect the company

Having outside counsel generally ensures that people doing the investigating are not the same people involved in the wrongdoing

In-house counsel have own biases


22

Advantages of In-House Counsel

In-house counsel know the people, industry, and business

Greater confidentiality In-house counsel can command more

cooperation from employees


23

Selecting Outside Counsel

Outside counsel should have sufficient trial and interviewing experience

Must be independent Must be able to give unbiased

assessment Must be able to stand up to company

management Must be able to establish good rapport


24

Timing and Resources

Thoroughness Poor investigation worse than none at all Poor Investigations may:

- Expose the company to bad publicity- Give perception that the company does not

take claims of misconduct seriously - Harsher treatment from

government/regulators- Increase likelihood of civil actions


25

Timing

Need to act swiftly

Goal is to immediately identify, stop, and correct any misconduct


26

Cost

Internal investigations are expensive, particularly if outside counsel are used

However, may be cheaper in the long run- Seaboard Doctrine: Credit for self-policing

and self-reporting


27

Scope of Investigation

Outline the scope of the investigation from the outset

Be flexible and prepared to adapt to change Identify witnesses and preserve documents Issue preservation memorandums to

witnesses to preserve all records, particularly electronically stored information


28

Interviews

Interviewer must give Corporate Miranda/Upjohn Warnings:- Counsel is conducting an investigation on behalf of

entity- Purpose of investigation to provide legal advice to entity- Counsel represents the entity and not any individual

employee- The employee may seek independent representation - Any information disclosed to counsel may not be

protected by the attorney-client privilege and may be disclosed to the corporation or to third parties at the entity's discretion


29

Interviews

Have a second person at interview

Immediately write interview memorandums

Avoid taping the interview


30

Document Preservation

Electronically Stored Information (ESI)

Lawyers today must be competent in lawyering and in computer technology

Paper discovery is a thing of the past


31

Spoliation

Companies need effective document retention policies

Halt destruction of any relevant evidence as soon as you receive notice of a potential claim

Have written agreements in place with outside vendors regarding preservation and confidentiality of data


32

Outside Vendor Agreements

Agreement with outside vendor should cover:- Handling of confidential client information- Retrieval of Data- Security policies regarding access to

confidential information - The Vendor’s backup procedures- Destruction of documents


33

Consequences for Spoliation

If you are party to a lawsuit:- Monetary sanctions - Striking of pleadings - Evidence preclusion - Adverse inference jury instruction


34

Third-Party Cause of Action for Spoliation of Evidence

Third-Party cause of action exists in Florida for spoliation of evidence- The Plaintiff need not prove that he would

have won the case if the evidence were preserved, but only that the destruction of evidence cost him or her an opportunity to prove his or her lawsuit.


35

Avoiding Crisis

Be proactive

Have adequate written policies in place to ensure that employees are encouraged to and do raise concerns through appropriate channels


36

Company Policies

Policies should consider:- To whom concerns should be raised- Provide alternate person to raise concerns to if primary person

is the person accused of committing the wrongdoing- Form of the communication – written v. oral- Actions that will be taken if retaliation against reporting

employee- Consequences of false reporting- Confidentiality/Anonymous reporting- How to handle reports that become public (e.g. – person

wants to remain confidential/anonymous, but needs to testify in court)


37

Preserving Privilege in Investigation

Guard privilege closely from the outset Want disclosure on your terms Use attorneys in investigation. No

attorney = no attorney-client privilege Use a separate engagement letter for

outside counsel – investigation to discover facts and for legal advice


38

Safeguarding Privilege for In-House Counsel Communications

In-House counsel have dual roles to give business advice and legal advice

Only legal advice privileged Only include necessary people in

communications Expressly state that the communication is

for purposes of legal advice Avoid “Reply to All” or sending string emails


39

Disclosing the Investigation Report

Strategic decision to waive privilege as to investigative report

Considerations:- Severity of findings- Company success in addressing misconduct- Will the conduct come to light anyways

(whistleblowers, leaks to media, etc…)- Is the report likely to prevent action against

the company or to invite adverse action against the company


40

Waiver of Privilege

Selective waiver generally not permissible

Report may be discoverable by additional parties if disclosed


41

Ethics Rules for General Counsel

ABA Model Rule 1.13 - Organization as Client

Florida Rules of Professional Conduct 4-1.13 – Organization as Client


42

ABA Model Rule 1.13(a)

A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents


43

Florida Rule 4-1.13(a)

Representation of Organization. A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.


44

ABA Model Rule 1.13 (b)

If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.


45

Florida Rule 4-1.13(b)

Violations by Officers or Employees of Organization. If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization or a violation of law that reasonably might be imputed to the organization and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization.


46

Florida Rule 4-1.13(b)(cont.)

Such measures may include among others:- (1) asking reconsideration of the matter;- (2) advising that a separate legal opinion on

the matter be sought for presentation to appropriate authority in the organization; and

- (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.


47

ABA Model Rule 1.13(c)

Except as provided in paragraph (d), if- (1) despite the lawyer's efforts in accordance with

paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and

- (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.


48

ABA Model Rule 1.13(d)

Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.


49

ABA Model Rule 1.13(e)

A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.


50

Florida Rule 4-1.13(c)

Resignation as Counsel for Organization. If, despite the lawyer's efforts in accordance with subdivision (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with rule 4-1.16.


51

ABA Model Rule 1.13(f)

(f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.


52

Florida Rule 4-1.13(d)

Identification of Client. In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.


53

ABA Model Rule 1.13(g)

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. If the organization's 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.


54

Florida Rule 4-1.13(e)

(e) Representing Directors, Officers, Employees, Members, Shareholders, or Other Constituents of Organization. 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 4-1.7 If the organization's consent to the dual representation is required by rule 4-1.7, 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


55

Parent/Subsidiary Representation

When Interests Aligned

General Rule - Common and entirely ethical to represent both.

Privilege generally extends to communications with representatives of entire corporate family


56

Diverging Interests

Potential scenarios- Sale or bankruptcy of poorly performing

subsidiary- Liability issues with subsidiary- Subsidiary claiming that parent is not

meeting obligations


57

Privilege Between Disputing Parent/Subsidiary

Who owns/controls the privilege

What is discoverable

Can counsel continue to represent


58

Social Media


59

Social Media


60

Social Media

1. DEFAMATION2. HARASSMENT/DISCRIMINATION ISSUES3. CRIMINAL ACTIVITY4. IP INFRINGEMENT (TRADEMARK,

COPYRIGHT)5. BANDWIDTH CONSIDERATIONS6. LOSS OF PRODUCTIVITY7. EXPOSURE TO VIRUSES8. UNITENTIONAL DISCLOSURE OF

PROPRIETARY AND CONFIDENTIAL INFORMATION


61

Social Media

Stored Communications Act Electronic Communications Privacy Act Computer Fraud & Abuse Act Patriot Act Identity Theft Enforcement Act Occupational Safety & Health Act Anti-Discrimination Laws (Title VII of Civil Rights Act, ADA, ADEA, etc.) Sarbanes Oxley National Labor Relations Act Securities Law of 1933 Common Laws Claims (defamation, invasion of privacy, etc.)


62

Social Media

ABA Model Rules of Professional Conduct

Rule 1.1 CompetenceA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.


63

Social Media

Florida Rule 4-1.1

Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.

Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.


64

Social Media

Recent Decisions Regarding Attorneys’ Ethical Obligations to Maintain Technological Competence:

Seven Seas Cruises S. DE R.I. v. V Ships Leisure Sam, 2011 U.S. Dist. LEXIS 19465 (S.D. Fla. 2011)

Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal 2008)

Pension Comm. of the Univ. of Montreal Pension Plan v. Banc. Of Am. Sec., LLC,685 F. Supp. 2d 456 (S.D.N.Y. 2010)


65

Social Media


Rule 1.18 Duties To Prospective Client

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.(b) Even when no client-lawyer relationship ensues, a lawyer who has had

discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.


66

Social Media

FLORIDA SUPREME COURT - Judicial Ethics Advisory Committee

Opinion Number: 2009-20Date of Issue: November 17, 2009

ISSUE:

Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend.“

ANSWER: No.


67

Social Media


Rule 3.5 Impartiality And Decorum Of The Tribunal

A lawyer shall not:(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order


68

Social Media


Rule 3.5 Impartiality And Decorum Of The Tribunal

A lawyer shall not:(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;(2) the juror has made known to the lawyer a desire not to

communicate; or(3) the communication involves misrepresentation, coercion,

duress or harassment.


69

Social Media


Rule 3.6 Trial Publicity(a) A lawyer who is participating or has participated in the investigation or

litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by

means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.


70

Social Media


Rule 3.6 Trial Publicity

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.


71

Social Media

ABA Rule 3.6 Stroble v. California, 343 U.S. 181, 195 (1952) D.L v. Slattery, Case No. 10-61902-Civ-Moore

(S.D. Fla. March 31, 2011) E.I. Dupont de Nemours & Co. v. Aquamar, S.A,

33 So.3d 839 (Fla. 4th DCA 2010) Rodriguez ex rel. Posso-Rodriguez v. Feinstein,

734 So.2d 1162 (Fla. 3d DCA 1999)


72

Social Media


Rule 4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person


73

Social Media

PHILADELPHIA BAR ASSOCIATIONProfessional Guidance Committee

Opinion Number: 2009-02Date of Issue: March, 2009

ISSUE:

Whether employing a third party to “friend” an unrepresented, non-party witness to gain access to her account for impeachment purposes would be permissible.

ANSWER: No.


74

Social Media


Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.


75

Social Media

Florida Rule 4-5.5

(b) Prohibited Conduct. A lawyer who is not admitted to practice in Florida shall not:

(1) except as authorized by other law, establish an office or other regular presence in Florida for the practice of law;

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in Florida; or


76

Social Media


Rule 7.1 Communications Concerning A Lawyer's Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.


77

Social Media


Rule 7.4 Communication of Fields of Practice and Specialization

(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and(2) the name of the certifying organization is clearly identified in the communication.


78

Social Media

Florida Rule 4-7.2 Communications Concerning a Lawyer’s Services

(6) Communication of Fields of Practice. A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is "certified,"

"board certified," a "specialist," or an "expert" except as follows:

(A) Florida Bar Certified Lawyers. A lawyer who complies with the Florida certification plan as set forth in chapter 6, Rules Regulating The Florida Bar, may inform the public and other lawyers of the lawyer’s certified areas of legal practice. Such communications should identify The Florida Bar as the certifying organization and may state that the lawyer is "certified," "board certified," a "specialist in (area of certification)," or an "expert in (area of certification)."

B) Lawyers Certified by Organizations Other Than The Florida Bar or Another State Bar. A lawyer certified by an organization other than The Florida Bar or another state bar may inform the public and other lawyers of the

lawyer’s certified area(s) of legal practice by stating that the lawyer is "certified," "board certified," a "specialist in (area of certification)," or an "expert in (area of certification)" if: (i) the organization’s program has been accredited by The Florida Bar as provided elsewhere in these Rules Regulating The Florida Bar; and,(ii) the member includes the full

name of the organization in all communications pertaining to such certification.


79

Social Media


Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly

assist or induce another to do so, or do so through the acts of another;(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice


80

Resources Published Ethics Opinions Published Ethics Opinions http://www.floridabar.org/tfb/TFBETOpin.nsf/EthicsIndex?OpenForm

Rules Regulating The Florida Bar Rules Regulating The Florida Bar http://www.floridabar.org/divexe/rrtfb.nsf/WContents?OpenView

ABA Center for Professional Responsibility ABA Center for Professional Responsibility http://www.abanet.org/cpr/ethics

Informal Advisory OpinionInformal Advisory OpinionFlorida Bar’s Ethics Department – (800)235-8619 (M-F, 9:00 a.m. – 5:00 p.m.)

Resources


81

Disclaimer

The information contained in this presentation was designed to provide a BASIC understanding of some of the ethical aspects corporate counsel must consider in the performance of their duties.

The foregoing information has been summarized for the purpose of this seminar and should not be construed as a complete analysis of the Rules Regulating the Florida Bar or the ABA Model Rules of Professional Conduct.


82

Questions/ Questions/ Discussion Discussion


83

Contact Information

Peter L. Blacklock, Esq.

561.804.4457

[email protected]

Elliot A. Hallak, Esq.

561.804.4439

[email protected]

Ethical Considerations for In-House Counsel: Rules vs. Reality © 2012 Fox Rothschild LLP 1 Ethical...

Documents

Transcript of Ethical Considerations for In-House Counsel: Rules vs. Reality © 2012 Fox Rothschild LLP 1 Ethical...