1. ETHICS FOR IN-HOUSE COUNSEL A Special 2-Hour Ethics CLE Program for the ACC Georgia Chapter ETHICS

2. Ethics in Transactional Matters: Part I Lori A. Gelchion Rogers & Hardin LLP ETHICS

3. Hypothetical 1: Dealing with Represented Persons – GRPC Rule 4.2(a) A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.

4. Hypothetical 2: Advising Client Representatives – GRPC Rule 1.13 (a)A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (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. (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 [related to Conflicts of Interest]. 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.

5. Hypothetical 3: Advising Entities Affiliated with the Client – GRPC Rule 1.7 (a)A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b). (b)If client informed consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected or former client gives informed consent confirmed in writing, to the representation after: (1)consultation with the lawyer, pursuant to Rule 1.0(c); (2)having received in writing reasonable and adequate information about the material risks of and reasonable available alternatives to the representation, and (3)having been given the opportunity to consult with independent counsel. (c)Client informed consent is not permissible if the representation: (1)is prohibited by law or these Rules; (2)includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding; or (3)involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.

6. Hypothetical 4: Ethics in Negotiations – Relevant Rules – GRPC Rule 4.1 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; or (b)Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

7. Ethics in Transactional Matters: Part II S. Gardner Culpepper III Rogers & Hardin LLP ETHICS

8. Lack of Unanimity in Rules ABA Rule 4.4: Respect for Rights of Third Persons (b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

9. ABA Rule 4.4 Comments Excerpt of ABA Rule 4.4 Comment [3]: Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically store information is a matter of professional judgment ordinarily reserved to the lawyer.

10. Alabama Rules of Professional Conduct 4.4: Transactions with Persons other than Clients (b) A lawyer who receives a document that on its face appears to be subject to the attorney-client privilege or otherwise confidential, and who knows or reasonably should know that the document was inadvertently sent, should promptly notify the sender and

11. Alabama Rules of Professional Conduct 4.4(b) Transactions with Persons other than Clients (continued) (1) abide by the reasonable instructions of the sender regarding the disposition of the document; or (2) submit the issue to an appropriate tribunal for a determination of the disposition of the document.

12. Rules Governing the Courts of the State of New Jersey 4.4: Respect for Rights of Third Persons (b) A lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender.

13. Maine Bar Rules 4.4: Respect for Rights of Third Persons; Inadvertent Disclosures (b) A lawyer who receives a writing and has reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege or of protection as trial preparation material:

14. Maine Bar Rules 4.4(b) Respect for Rights of Third Persons; Inadvertent Disclosures (continued) (1)Shall not read the writing or, if he or she has begun to do so, shall stop reading the writing; (2)Shall notify the sender of the receipt of the writing; and (3)Shall promptly return, destroy or sequester the specified information and any copies.

15. Georgia Rules of Professional Conduct 4.4 Respect for Rights of Third Persons (b)

16. Internal Investigations and the Employee Interview Tony G. Powers Rogers & Hardin LLP ETHICS

17. Factual Background 1. 1.Company commences internal investigation regarding auditors’ suspicions of earnings management. 2. 2.Inside Counsel and Law Firm A, regular outside counsel, conduct preliminary inquiry and interview key personnel, including CFO. Because these interviews are preliminary, counsel gives no warnings or cautionary statements. Law Firm A subsequently represents Company and CFO in private suits relating to subject matter of investigation.

18. Factual Background 3. 3.After the report of the preliminary inquiry, Audit Committee retains Law Firm B, independent outside counsel, to conduct independent investigation. Counsel receives Law Firm A’s work product and again interviews key personnel, including CFO. 4. 4.Law Firm B advises interviewees that it only represents the Company, that Company may waive privilege and, when asked, that it will not answer questions as to whether individuals need separate counsel.

19. Factual Background 5. 5.Ultimately, CFO is fired for his role. Company decides to cooperate with SEC and DOJ, waives privilege as to all interviews conducted by Law Firm A and Law Firm B and turns over interview notes. 6. 6.CFO is indicted for securities fraud and for obstruction for having lied to Law Firm B.

20. Questions 1. 1.In a pretrial motion, the CFO seeks to suppress information obtained in the interviews conducted by both Law Firm A and Law Firm B. How should the Court analyze the issue? Is the issue different as between the two law firms? 2. 2.The CFO files a bar complaint against Law Firm A and Law Firm B contending that they wrongfully breached privilege and failed to advise him properly of their roles. How should the complaints be resolved? 3. 3.Should the CFO have been given any warnings prior to the interviews? What should any warnings say? Do the warnings required for the two interviews differ? 4. 4.Should the law firms have warned that the information at issue might be given to the government? That a false answer might lead to criminal charges?

21. Should the Interviews of the CFO be Excluded? Fundamental question: Do the law firms owe a duty to the officer to maintain privilege or confidentiality? More specifically: Is there an attorney- client relationship in this context?

22. Is There an Attorney-Client Relationship? “A relationship of client and lawyer arises when: a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.” Restatement (Third) of the Law Governing Lawyers § 14 (2000).

23. Law Firm A 1. 1.Has the firm previously represented the CFO personally? CFO’s understanding of Law Firm A’s role? 2. 2.What is the significance of Law Firm A’s representation of CFO in the lawsuit arising in connection with the investigation? 3. 3.Assuming an ethical duty to warn, can ethics violation lead to exclusion of evidence? Can a breach of privilege?

24. Law Firm B Recall that Law Firm B advises the CFO that it represents Audit Committee and does not represent him personally. Does CFO have any basis to seek exclusion of interviews by Law Firm B?

25. Will CFO’s Bar Complaint be Upheld? 1. 1.Privilege: Attorney-client relationship? 2. 2.Breach of ethical duties? What theories ?

26. Duties in Dealing with Corporate Constituents Rule 1.13: Organization as Client a)A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.... e)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.

27. Comments to Rule 1.13 [9] There are times when the organization’s interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation....

28. Comments to Rule 1.13 Care must be taken to assure that the individual understands that the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged. [10] Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.

29. Application of Rule 1.13 1. 1.Does the rule provide a basis to differentiate between Law Firm A and Law Firm B? 2. 2.Could the failure to warn provide a basis for a bar complaint?

30. Rule 4.3: Dealing with Unrepresented Persons In dealing on behalf of a client with a person who is not represented by counsel a lawyer shall not: a) a)state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding; and b) b) give advice other than the advice to secure counsel, if a lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

31. What Warnings Should be Given ? 1. 1.Counsel represents the Company and not the witness individually. 2. 2.This interview is to gather facts regarding [certain issues] to provide legal advice to the Company. 3. 3.This discussion is confidential and protected by the Company’s attorney-client privilege. You must keep the conversation confidential. 4. 4.The privilege belongs to the Company, and the Company alone may decide to waive it. 5. 5.The Company may decide to provide all of the information it collects to the government and cooperate in its investigation.

32. Do the Rules Mandate These Warnings? 1.Comments suggest “facts and circumstances” control. See, e.g., Rule 1.13, Comment 11. 2. 2.Warnings are helpful to protect privilege—not strictly required. 3. 3.Clarification of role may be necessary in two circumstances: (1) employee misunderstanding; and (2) conflict of interest.

33. Further Questions 1. 1.Why should counsel not always give these warnings when interviewing company personnel? 2. 2.Should warnings be in writing? How might they be recorded? 3. 3.Should there be a duty to warn that lying to Law Firm B (after cooperation decision is made) may lead to criminal prosecution?

34. Juror Misconduct: What are the Lawyer’s Obligations? Robert B. Remar Rogers & Hardin LLP ETHICS

37. Applicable Rules of Professional Conduct

40. ETHICS FOR IN-HOUSE COUNSEL Program Conclusion For more information, please visit www.rh-law.com ETHICS