how to deal with in house counsel as employee's attorney

To ensure the attorney-client privilege attaches to communications between in-house counsel and company employees, an in-house attorney should provide an Upjohn warning before advising an employee involved in litigation or a government investigation. The warning should explain that: In-house counsel represents the company, not the employee.

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Can an inhouse counsel give legal advice to their employer?

Apr 18, 2018 · In-house counsel should also document the rationale for a memorandum's distribution in order to deflect a waiver argument; in other words, the writing should make clear why each recipient needed to get the memorandum. There are also a number of "don'ts" which in-house counsel should consider.

Can a lawyer contact a former employee through counsel?

May 01, 2013 · To illustrate, suppose you are in-house counsel working on a contract with a company that has in-house counsel, but you are dealing with someone in the Procurement Department who is not a lawyer. Without more, this conduct does not violate Rule 4.02 because you do not “know” the company is represented in this matter.

What are a lawyer's duties to in-house counsel?

Jun 20, 2016 · Learn as much as you can about the company/client from your in-house counterpart. In return, as outside counsel, it is your job to make in-house counsel look great to his or her superiors at all times. Make sure everyone is clear about expenses: If the company has a budget when hiring outside counsel, stick to it. The billable hour has strained many …

Can a corporate in-house lawyer have a conflict with a client?

Dec 01, 2014 · Broadly speaking, lawyers have three core ethical duties: a duty to the court, a duty to their client and a duty to obey the law. There are also obligations concerning a lawyer's dealings with third parties. This article will examine these duties as they apply to in-house counsel. An important source of a lawyer's duties (but not the only ...

How do you deal with unprofessional opposing counsel?

Can in house counsel represent other clients?

What is the typical work environment for a lawyer?

Is in house counsel stressful?

Does general counsel represent employees?

What is an Upjohn warning?

What are the four responsibilities of lawyers?

What is the average salary of a lawyer?

How much do lawyers make an hour?

Is working in a law firm stressful?

What is an in house lawyer?

Who is the client in a lawyer?

1. Who is the client? Though you interact daily with senior management and others, an in-house lawyer’s client is the company and not any one individual. This can lead to some awkward moments, especially during internal investigations where you must make it clear to the individual that you represent the company not them, usually through an “Upjohn” warning. It’s also easier to mix business and legal advice, jeopardizing the attorney-client privilege.

Why are there no fees for in-house lawyers?

There are several reasons for this disparity – there are no fee disputes for in-house lawyers, no client trust-account issues, no advertising issues, and in-house lawyers are employees of the client.

What is Rule 1.13 B?

In, under the right circumstances, you must report to a higher authority when the actions of officers or employees violate a legal obligation to the company, render the company responsible for violating a law, or are likely to result in substantial injury to the company.

Do in-house lawyers have to comply with ABA rules?

If you read through the ABA Model Rules of Professional Conduct or your applicable state rules (and you should), you will see that most of the rules written are for lawyers in private practice. Rules specifically addressing in-house counsel are few (but in-house counsel must comply with all of them nonetheless). There are several reasons for this disparity – there are no fee disputes for in-house lawyers, no client trust-account issues, no advertising issues, and in-house lawyers are employees of the client.

What is in house counsel?

In-House Counsel Ethically Dealing with Represented Parties, Unrepresented Parties, and How to Tell the Difference (in Texas and Model Rule States)

What is the rule for representing a client?

Rule 4.02—dealing with a represented party. Rule 4.02 (a) generally provides that, in representing a client, a lawyer shall neither communicate nor “cause or encourage” another to communicate about the subject of the representation with a person or entity the lawyer “knows to be represented by another lawyer” without consent of the other lawyer. ...

Why is not giving legal advice important?

The significance of not giving legal advice is that the unrepresented party may claim an attorney-client relationship was created by the giving of such advice. Of course, to an attorney this would be ridiculous because an attorney cannot be on both sides of a matter. Viewed after the fact, however, inferences tend to be in favor the layman. A determination that an attorney-client relationship was created could be devastating both to the in-house lawyer (for ethical and malpractice reasons) and to the client (per Rule 1.09 and the definition of “Firm,” if the lawyer has a conflict of interest and is disqualified, then the entire in-house department is disqualified).

What is the Texas State Bar Ethics Committee opinion 492?

The ability to make the client vicariously liable was crucial to Texas State Bar Ethics Committee Opinion 492 (June 1992). There, a labor organization employed an attorney to negotiate and resolve workplace issues. The city attorney told the labor attorney to cease communicating with city employees “whose act or omission make the city liable” without the city attorney’s consent. Opinion 492 agreed with the city attorney’s position: “ [D]espite the fact that litigation is neither in progress nor contemplated, the prohibitions of Rule 4.02 apply”.

What is Rule 4.02?

Rule 4.02 prohibits speaking with a represented party regardless of who initiates the contact—even if the represented party calls you, you cannot have a substantive discussion without permission of the other lawyer. E.g., In re News America Pub., Inc. [2]

When dealing with a represented party, should care be taken to respect a party's relationship with its attorney?

When dealing with a represented party, care should be taken to respect a party’s relationship with its attorney. When dealing with an unrepresented party, care should be taken not to give legal advice, as a layman may later claim that the giving of such advice established an attorney-client relationship.

Can a lawyer encourage another lawyer to contact another lawyer?

Under the Texas Rules, a lawyer cannot “encourage” another (which would include the client) to contact the other party without violating Rule 4.02 (a). Note that Official Comment [2] to Texas Rule 4.02 does state the lawyer is not required to “discourage” such communication.

What are the ethical duties of a lawyer?

Broadly speaking, lawyers have three core ethical duties: a duty to the court, a duty to their client and a duty to obey the law. There are also obligations concerning a lawyer's dealings with third parties. This article will examine these duties as they apply to in-house counsel.

Why does a conflict arise in a lawyer?

A conflict may arise because the inhouse counsel has learned of confidential matters during their former employment and it is now in the interests of their new employer to be informed of such matters. Rule 10.2 prohibits a lawyer, who has possession of confidential information of a former client that might reasonably be material to ...

When was the Australian solicitors conduct rule created?

The Law Council of Australia created the Australian Solicitors Conduct Rules (ASCR) in 2011 and released an accompanying commentary in August 2013. The ASCR have been adopted in Queensland, New South Wales (NSW) and South Australia, albeit with some slight differences. [2] . On 28 May 2014, the Legal Services Board of Victoria announced ...

Which rule applies to all solicitors?

Rule 1.1 of the ASCR states that the rules apply to “all solicitors” while the commentary provided by the Law Council explicitly states that the ASCR apply to inhouse counsel.

What is ethics in a profession?

Ethics is an inherent feature of any profession. At its annual general meeting on 26 May 1997, Professions Australia adopted the following definition of “a profession”: "A profession is a disciplined group of individuals who adhere to ethical standards and hold themselves out as, and are accepted by the public as possessing special knowledge ...

Who must advise the third party in advance?

If a lawyer instructs a third party on behalf of their client and the inhouse counsel does not intend to accept personal responsibility for the third party's fees, the inhouse counsel must advise the third party in advance. [20]

Is it a duty to obey the law?

The duty to obey the law can perhaps be viewed as an important aspect of the broad prohibition in r 5 of the ASCR against any conduct which demonstrates that a lawyer is not a “fit and proper person to practise law” or which is likely to prejudice the administration of justice, diminish public confidence in the administration of justice, or bring the profession into disrepute.

What are the ethical issues faced by in-house lawyers?

Ethics committees can help by developing more creative solutions to the ethical challenges faced by in-house lawyers, such as representing corporate affiliates or navigating conflict of interest and imputation rules. Arguably, the people who are best situated to answer these questions are in-house lawyers. Yet, in my experience, ethics committees are disproportionately populated with law firm practitioners. In order to address these challenges, more in-house lawyers should consider joining ethics committees and other associations that develop policies, promulgate ethics rules, and issue ethics opinions. Getting involved is the best way to get your voice heard. The alternative is to spend your professional life as a square peg in a round hole.

Who does the outside counsel report to?

The problem is that the outside counsel has to report to someone in the company and, usually, that someone is the general counsel. Even if the subsidiary has its own in-house counsel, that person often reports up the corporate ladder to the general counsel for the parent company.

How can ethics committees help in the legal field?

Ethics committees can help by developing more creative solutions to the ethical challenges faced by in-house lawyers, such as representing corporate affiliates or navigating conflict of interest and imputation rules. Arguably, the people who are best situated to answer these questions are in-house lawyers.

What is the New York Rule 1.5?

For example, ethical rules that prohibit lawyers from charging or collecting “excessive” legal fees, such as New York Rule 1.5 (a), create unforeseen perils for in-house lawyers who are partially compensated with corporate stock options that could appreciate in value beyond the original expectations.

What is a firm in law?

In common parlance, a firm generally means a private entity comprised of attorneys who provide legal services to outside clients. Yet, Rule 1.0 (c) defines a “firm” or “law firm” as “a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law;

What is the lawyer's question?

The lawyer’s question highlights the dual nature of the relationship between a company and its in-house counsel: the company is both the lawyer’s full-time employer and the lawyer’s client – a nuance that is not always recognized in the ethics rules.

What are the rules of professional conduct?

Although a handful of Rules, such as Rules 1.11, 1.12, and 3.8, single out government lawyers for special attention, in-house lawyers are not so fortunate.

What is the ABA rule for keeping confidential information?

Confidentiality. As a lawyer you are required to keep confidential information confidential – this is broader than the attorney-client privilege. ( ABA Rules §1.6 ). Moreover, you must always take steps to preserve the attorney-client privilege (and whether the privilege applies outside the U.S. depends on the country involved and you should familiarize yourself with the rules of that jurisdiction – click here to see a summary of how the privilege applies outside the U.S.). You also have a duty to preserve client files and documents, and not just for purposes of a litigation hold. ( ABA Rules §1.6 (c) ). You should regularly back up your email and hard drive (talk with your IT department about the best way to do this). The old saying “Loose lips sink ships” is 100% relevant in the in-house world. Be careful of your discussions in restaurants, elevators, and especially when you are on the phone in a public place – since most people seem to feel they must speak louder when talking on a phone. Similarly, create strong passwords, i.e., numbers, letters, and symbols, to use for your company accounts. Secure your laptop and smartphone, and if you use your own personal devices to conduct company business or store company documents, you need to secure those as well and use strong passwords at home. (See Comment 18 to ABA Rules §1.6 ).

Who is the client in ABA?

Who is the Client? For in-house counsel, the client is the organization and not any individual member of management or employee. ( ABA Rules §1.13 ). This can be difficult to remember at times because your business colleagues often think of you as “their lawyer.” That is okay at times, i.e., to the extent the employee is an extension of the company, but it must always be clear between you and the business client that you represent the interests of the company and not them individually. This means you have to watch out for things like the senior management “squeeze” – “what I’m about to tell you is only between you and me as my lawyer.” You must be able to recognize situations where separate counsel may be needed and to advise your business colleague to get their own lawyer if needed. This occurs most often in the context of internal investigations. Under such circumstances, it’s important that you give your business colleague what is known as an “ Upjohn” warning . You must make it clear to the employee you are interviewing (including senior management) that you represent the company and not them and they have the right to obtain their own counsel. ( ABA Rules §1.13 (f) ). The best practice here is to have a standard written warning that the employee signs. For a sample warning, click here . Failure to give this warning can waive the attorney-client privilege and lead to other problems.

Can you assist in a crime?

The bottom-line is that you cannot assist in a crime or fraud and you must act to take steps to prevent bodily harm. ( ABA Rules 1.2, §1.6, and §1.13 ). Furthermore, if you work for a publicly-traded company you may have obligations under Sarbanes-Oxley §307 to report material violations of the law “up the ladder”.

Do in house counsels need to be licensed?

In some places, in-house counsel must be licensed in the state where they perform legal work for the company. In other places, they do not.

Is it important to know the code of professional responsibility?

It is certainly important to be familiar with the specifics of the applicable code of professional responsibility. You should have a copy of the rules (or a “link” to an online version) handy. That said, the following points will probably solve 90% of the day-to-day ethics issues faced by in-house counsel:

Is in-house counsel an employee?

The rules specifically addressing in-house counsel appear as a small fraction of the rules (but in-house counsel must comply with all of the rules nonetheless). There are several reasons for this disparity: there are no fee disputes for in-house lawyers, no client trust account issues, no advertising issues, and the in-house lawyer is an employee ...

Why do employers hire in-house counsel?

In-House Counsel as a Cost Center. As mentioned above, often employers hire in-house counsel to reduce expenditures on outside counsel. This means employers try to maximize the return from each in-house counsel and reduce in-house counsel’s ability to pay for outside counsel.

Why do lawyers start in-house?

Lawyers who start in-house face the added problem that the business clients don’t prize legal accuracy as much as they prize good business counseling. If anything, clients hate legally accurate answers that conflict with their business objectives. As a result, lawyers who start in-house, over time, often become more skilled at business counseling than legal counseling; they don’t necessarily know all of the relevant legal doctrine, and the clients don’t value that extra legal expertise. But in-house counsel are socialized to give clients what they want, which is that they want “yes,” not “no.” As a result, in-house counsel are constantly under pressure to distort their legal analysis to support a business conclusion of “yes.”

What are the consequences of internal conflicts?

Inevitably, your clients will want to skirt the law, even if the company is fundamentally trying to be ethical. There are too many laws, too many stupid laws, too many laws that impose unreasonable compliance costs, and too many grey areas. In-house counsel have few good choices in these circumstances, especially if the lawyer advised the client on one course of action and the client rejected the advice. If the lawyer feels like he/she needs to “withdraw” from the representation because of the client’s now-possibly-shady behavior or because of the implicit vote of no confidence due to the client ignoring the lawyer’s advice, the lawyer’s options are limited. The lawyer can simply walk away from the job, immediately cutting off the salary (and foregoing any equity upside) and burning bridges with the remaining co-workers; or the lawyer can slowly try to find alternative employment, a time-consuming and costly transition. A standard “best practice” for law firms is to not become too dependent on any single client because it will create pressures to do unethical things. In-house counsel, by the very nature of the position, violate that best practice.

Is it harder to say no to a coworker?

On the other hand, it can be even harder for in-house counsel to tell a co-worker that they are not at the top of the priority list. So although it may be easier to prioritize tasks, it may be more painful to say no to people you have to work with the next day.

Do you have to be answerable to a boss?

You’re Answerable to a Boss. Some of you may find this an odd “con.” Doesn’t everyone have a boss? The answer, of course, is yes unless you’re self-employed. Even a CEO is answerable to the board or investors.

Do lawyers need a boss?

Furthermore, job advancement in-house often requires a boss who will champion for your cause. Sadly, many bosses are not very good at being advocates for their supervisees, in which case in-house lawyers can get stuck in their career progression.

Is a supervisor/supervisee relationship attenuated?

However, at some law firms, the supervisor/supervisee relationship can be quite attenuated. In firms with a power-partner model, the associate’s power partner is the boss; but at firms with a free-agency model for assigning new projects, it’s possible that no one partner views him/herself “responsible” for an associate. As it turns out, that was the situation I had when I was at the law firm. Although I had partners who nominally were accountable for my time, in practice I had a significant degree of autonomy. Partners have even more independence.

Where can I find unauthorized practice committees?

A directory of such committees is available here: http://www.abanet.org/cpr/clientpro/cp-dir_upl.pdf

When was the ABA model rules of professional conduct amended?

Disciplinary Authority; Choice of Law of the ABA Model Rules of Professional Conduct were amended in 2003 pursuant to the ABA Multijurisdictional Practice Commission's (MJP) recommendations. Their report, which was submitted to the House of Delegates, is located here: http://www.americanbar.org/groups/professional_responsibility/committees_commissions/commission_on_multijurisditional_practice.html

Is it illegal to practice law in a barred state?

Response #3: Also, remember that it is not an unauthorized practice of law (UPL) to practice law in your barred state and to give legal advice regarding another states laws. It may not be prudent (especially given the many variations), but it is not the UPL. 3

Does everything change if you are in-house counsel working in a foreign state?

I am not addressing that since it was not part of the question, but a word of caution is that you need to be very careful about each state's rules for in-house counsel and the UPL. 10

Does negotiating agreements with parties in other states rise to a level of "practicing law"?

Negotiating agreements with parties in other states does not rise to a level of "practicing law" in those states that would require a registration. The panelists were experts on the subject and this would be an excellent place to start. 5.

Can a lawyer fly in and out?

If you are a licensed lawyer in good standing in your home state, many states now have the lawyer fly-in and fly-out rules. Suppose that you do Commercial Real Estate contracts and you are licensed in Illinois but your client wants you to negotiate a contract in New York (NY). The NY Professional Responsibility rules now authorize you to negotiate the contract in NY. However, beware because you need to make sure that your client knows that you are not licensed in the fly-in state. You may not set up an office or put out a shingle, nor may you permanently be in the fly-in state.

Is negotiating a contract an UPL?

Each state defines the concept of an Unauthorized Practice of Law (UPL) differently. If you are negotiating a contract on your own behalf, it may not be an UPL in many states. However, you may not be able to go to court to defend your company, but that depends on your state. The concept is that you are not representing others.