Ethics and Professional Responsibility
Ethics and Professional Responsibility tests lawyer duties and corporate compliance boundaries.
Core rules
- Competence, diligence, communication, confidentiality, and reasonable fees.
- Confidentiality is broader than privilege. Attorney-client privilege protects confidential communications for legal advice; it does not protect underlying facts or business advice.
- Conflicts: concurrent conflicts require informed consent where representation is not materially limited; former-client conflicts; prospective clients.
- Corporate client: the lawyer represents the entity, not individual officers. Up-the-ladder reporting may be required or permitted under rules and Sarbanes-Oxley.
- Candor to the tribunal, fairness, no contact with represented persons, and safeguarding client property.
Worked example
A company's general counsel learns that the CFO is using a side entity to divert funds. The lawyer represents the company. She must act in the entity's best interest, report to the board or audit committee, and cannot keep the CFO's secret merely because he is her day-to-day contact.
Traps
Privilege does not cover the facts themselves. Joint representation needs a clear conflict waiver. Withdrawal is not always permitted. In-house counsel can face discipline for participating in fraud.