Trial counsel as witness; Organizational Clients; Lawyer as 3p neutral; Limited legal services programs

Question 1

Trial counsel as witness

Answer 1

1. a lawyer likely to be a necessary witness cannot serve as trial counsel
   i. lawyer should refuse employment or withdraw
   ii. is not imputed: a lawyer from the same firm can serve as trial counsel
2. three exceptions:
   i. lawyer’s testimony will relate solely to an uncontested matter
   ii. lawyer’s testimony only concerns the nature or value of legal services rendered
   iii. withdrawal would result in substantial hardship for the client because of the lawyer or firm’s distinctive value to the case
3. CA: only prevents the trial counsel from being a testifying witness before a jury
   i. can testify before a jury concerning uncontested matters, concerning the nature of value of services rendered, or with the client’s consent

Question 2

Organizational clients

Answer 2

1. duty of loyalty is owed to the organization, not to its constituents (ex. directors, SHs)
2. when the interests of the organization and one of its constituents are in conflict, the lawyer must caution the person in question that she represents the organization, not the person
3. when constituent advocates an action that may cause substantial harm to the organization, the lawyer must protect the organization’s interests by:
   i. must report the action to a higher authority in the organization
   ii. if that fails, must report to highest authority
   iii. if that fails, may report the action to relevant persons outside the organization, but only to the extent the lawyer reasonably believes is necessary to prevent substantial injury to the organization
   a. ABA: can report even if it includes confidential information
   b. CA: can only report confidential information to prevent a criminal act likely to cause death or substantial bodily harm

Question 3

Dual roles

Answer 3

4. a lawyer can represent both the organization and one of its constituents if ordinary conflict of interest rules are satisfied
   i. consent of the organization cannot be given by the person being represented
5. a lawyer may serve as both a director and as a lawyer for an organization, may it create conflicts of interest
   i. attorney-client privilege will not apply to communications at meetings in which the attorney participates as a director, but some directors may not realize that
   ii. lawyer should resign as director or lawyer if the lawyer’s professional judgment would be compromised

Question 4

Securities Lawyers under Sarbanes-Oxley

Answer 4

6. SEC rules for securities lawyers who discover that their clients are violating federal or state securities laws
7. securities lawyer:
   i. lawyers who represent a securities issuer and who practices before the SEC
   ii. also includes lawyers who advise about a document that will be filed with the SEC, or about whether information must be filed with the SEC
8. reporting requirement must report the evidence to her client’s chief legal officer (CLO) if
   i. credible evidence client is materially violating a federal or state securities law, or
   ii. credible evidence that client’s personnel has breached a fiduciary duty under federal or state law, or has committed a similar material violation of federal or state law
9. CLO must investigate whether a violation occurred and if a violation is found, CLO must:
   i. take all reasonable steps to ensure the client stops or remedies the violation, and to make sure it does not happen again
   ii. report these results to the securities lawyer
10. inappropriate response if securities lawyer believes CLO did not achieve an appropriate response from the client:
    i. must report the evidence to either the client’s BoD, the BoD audit committee, or a committee of outside directors
    ii. may reveal any confidential information to the SEC if reasonably necessary to:
    a. prevent client from committing a violation that will cause substantial financial injury to the client or its investors
    b. rectify such a financial injury if lawyer’s services were used to further the violation
    c. prevent the client from committing or suborning perjury in an SEC matter, or lying in any matter within the jurisdiction of any branch of the federal gov’t
11. lawyers cannot be civilly liable or disciplined under inconsistent state ethics rules for following the Sarbanes-Oxley Act
12. a lawyer is fired for complying with the Sarbanes-Oxley rules may report the firing to the client’s board of directors (thus setting up the client for an expensive wrongful termination suit)

Question 5

LAWYERS SERVING AS THIRD-PARTY NEUTRAL

Answer 5

1. lawyers acting as arbitrators and mediators
2. if a party is unrepresented and is a novice, lawyer must
   i. make clear she does not represent either party
   ii. explain the difference between rule as a third-party neutral and a lawyer

Question 6

LIMITED LEGAL SERVICES PROGRAMS

Answer 6

1. lawyers providing short-term legal services (no expectation that the lawyer will provide continuing representation) under a program sponsored by a court, agency, law school, bar association, or nonprofit association
2. rules:
   i. lawyer is only subject to rules for concurrent conflicts
   ii. imputed conflicts only apply if lawyer actually knows another lawyer in the firm would have a conflict