In the chapter, Addressing Allegations of Corporate Crimes: Initial Considerations for the Corporate Counsel, William along with Franklyn M. Gimbel and Kathryn A. Keppel, highlight issues that are potentially faced
by corporate counsel when allegations of misconduct arise in the federal arena.
Not exact matches
There's the ongoing special -
counsel investigation into whether the Trump campaign aided a Russian campaign to aid Trump's candidacy and defeat his Democratic rival, Hillary Clinton; there's the associated inquiry into whether the president obstructed justice
when he fired former FBI Director James Comey, whom he had asked not to investigate his former national - security adviser; there are the president's hush - money payments to women with whom he allegedly had extramarital affairs, made through his personal attorney, Michael Cohen, and facilitated
by corporate cash paid to influence the White House; there is his ongoing effort to interfere with the Russia inquiry and politicize federal law enforcement; there are the foreign governments that seem to be utilizing the president's properties as vehicles for influencing administration policy; there's the emerging evidence that Trump campaign officials sought aid not only from Russia, but from other foreign countries, which may have affected Trump's foreign policy; there are the ongoing revelations of the president's Cabinet officials» misusing taxpayer funds; there is the accumulating evidence that administration decisions are made at the behest of private industry, in particular those in which Republican donors have significant interests.
In Upjohn Co. v. United States, 6 the United States Supreme Court held that a company's attorney — client privilege extends to company
counsel's communications with employees in certain prescribed circumstances.7 Rather than providing a simple objective test, the Upjohn court instead established five factors to guide courts in determining whether the company's privilege should extend to
counsel's communications with its employees: (1) whether the communications were made
by employees at the direction of superior officers of the company for the purpose of obtaining legal advice; (2) whether the communications contained information necessary for
counsel to render legal advice, which was not otherwise available from «control group» management; (3) whether the matters communicated were within the scope of the employee's
corporate duties; (4) whether the employee knew that the communications were for the purpose of the company obtaining legal advice; and (5) whether the communications were ordered to be kept confidential
by the employee's superiors, including that the communications were considered confidential at the time and kept confidential subsequent to the interview.8
When these elements are established, courts generally consider communications between company
counsel and an employee to be within the scope of the company's attorney — client privilege.9
This issue we examine our first five years — 1994 - 98 — a period
when corporate counsel were focused on building closer relationships with outside
counsel, exemplified
by the DuPont partner program.
It was me, Aaron Harrison, Rich Steeves, Chris DiMarco and we had that team up until ALM purchased Summit Professional Networks, which included Inside
Counsel at the time; was not fun
when Inside
Counsel being purchased
by its biggest competitor
Corporate Counsel.
By now, the dangers are well - documented:
Corporate entities and their
counsel assume certain risks
when engaged in the practice of self - collection during litigation.
Just like the
corporate members of ALEC are protected from civil liability
when they commit wrongdoing, thanks to laws written and pushed
by ALEC's civil justice task force, chaired
by our friend Victor Schwartz, the General
Counsel of the American Tort Reform Association.
Quinn Emanuel provides litigation
counsel to its clients to facilitate their business objectives in
corporate deals, whether
by enjoining transactions, ensuring they are consummated, or vindicating our clients» rights
when transactions fall apart or issues arise after a deal closes.
I learned some ideas to get past this issue
when I attended a recent discussion, sponsored
by the Association of
Corporate Counsel, with 12 chief legal officers from Western Canada.