1. ACC Corporate Counsel University
In-house Ethics 101:
What You Need to Know in Your In-house Role

2. Topics
In-house transition
Business and legal roles
Attorney-client privilege
Organization as client
Other issues

4. In-house transition Competence Learning the business
ABA Model Rule 1.1
Canada Model Code of Professional Conduct Rules 3.1-1, 3.1-2
Learning the business
Learning new areas of law

5. Business and legal roles
Non-legal considerations in decision-making
ABA Model Rule 2.1
Canada Model Code of Professional Conduct Rule , comment 10
Maintaining independent legal judgment
Canada Model Code of Professional Conduct Rule 3.1-2, comment 9

6. Business and legal roles
ABA Model Rule 2.1: Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

7. Business and legal roles
Canada Model Code of Professional Conduct Rule
Comment 9: A lawyer should be wary of bold and over-confident assurances to the client, especially when the lawyer’s employment may depend upon advising the client in a particular way.
Comment 10: In addition to opinions on legal questions, a lawyer may be asked … to give advice on non-legal matters such as the business, economic, policy or social complications involved in the question or the course the client should choose.

8. Attorney-client Privilege
ABA Model Rule 1.6: Confidentiality
“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent,” or one of the rule’s exceptions applies
Canada Model CPC Rule 3.3
“A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless” one of the rule’s exceptions applies

9. Attorney-client Privilege
Attorney-client privilege is related, but distinct from the ethical duty of confidentiality
However, both require care on part of counsel to maintain
In-house privilege challenged more readily by litigants and the government
In-house counsel are the “guardians” of their company’s privilege

10. Attorney-client Privilege
Tips
Educate your business clients about privilege
Include clear indications when a communication is related to providing legal advice
Do not circulate legal advice to business people who do not need to know
Have clear lines of supervision for non-legal personnel assisting in legal matters
Ensure privilege logs and supporting affidavits include fulsome explanations of the grounds for privilege

11. Organization as Client
ABA Model Rule 1.13: Organization as Client
A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
Canada Model CPC Rule 3.2-3: When the Client is an Organization
Although a lawyer may receive instructions from an officer, employee, agent or representative, when a lawyer is employed or retained by an organization, including a corporation, the lawyer must act for the organization in exercising his or her duties and in providing professional services.
Although a lawyer may receive instructions from an officer, employee, agent or representative, when a lawyer is employed or retained by an organization, including a corporation, the lawyer must act for the organization in exercising his or her duties and in providing professional services.

12. Organization as Client
Reporting up
ABA Model Rule 1.13 and CPC Rule require a lawyer to report intended or actual corporate misconduct to others of higher authority within the organization.
For public companies, SEC regulations require similar reporting up – see 17 CFR Part 205.

13. Organization as Client
Representing Subsidiaries
Generally not a problem when interests of parent and sub are aligned.
Problem situations:
Different ownership between parent and sub
Insolvency of either parent or sub
Transactions where interests are at odds

14. Other issues
Unauthorized Practice of Law; Multijurisdictional Practice
ABA Model Rule 5.5 – most states allow in-house counsel from other states to practice without full admission
May require in-house counsel “registration”
Most states also allow temporary or incidental practice by out of state lawyers

15. Other issues Personal Conflicts of Interest
Conflicts based on former employment
ABA Model Rule 1.9; Canada Model CPC Rule
Conflicts based on compensation
ABA Model Rules 1.5, 1.7, & 1.8; Canada Model CPC Rule

16. And finally … the best ethics comment ever
Canada Model CPC Rule 3.1-2: Competence, comment 15:
Incompetence, negligence and mistakes – This rule does not require a standard of perfection. An error or omission, even though it might be actionable […] in negligence or contract, will not necessarily constitute a failure to maintain the standard of professional competence described by the rule. (Emphasis added)