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Speakers at the event included Mark Katz, Michael Kelly, Elizabeth Monnet, Nicholas Unkovic. The speakers illustrated their points with case studies.
The speakers had the opinion that people should not work for a CEO who does not want to be guided in the right direction. When an attorney has conflicts with the CEO, he/she should bring the issue to the chair of the audit committee or the chair of the board of directors. To develop relations with board members the attorney may volunteer to do the housekeeping matters like handling the distribution of board packages. The attorney may make presentations so that the members become impressed and ask the attorney questions directly. There are law review articles that suggest the legal counsel should be present in board meetings though not a member of the board.
In a crisis situation, the CEO is not likely to want to hear about the attorney’s take on ethical issues. Explanations should be presented in a common sense approach such that the CEO slows down. Sometimes terminating the right person saves the CEO’s job, or prevents the company from liability. The CEO should make decisions based on the workplace, not personal relations. In the common sense approach, counsel is not purely legal. There is business advice as well so the attorney has to know what communications can be protected by privilege. Privilege belongs to the client, the corporation, not the person the attorney is advising. It is the obligation of the attorney to tell the person he/she is advising that the attorney represents the corporation.
The speakers reviewed Rule 3-210 of the California Rules of Professional Conduct. The rule relates to not only state or federal laws, but all laws. There are issues arising relating to foreign laws that the attorney needs to be aware so as not to put a company in jeopardy with respect to foreign jurisdiction. There should be due diligence prior to giving advice, and to prepare for crisis situations, there should be compliance procedures in place. The attorney should make people realize that legal issues are business issues. Not thinking immediately prevents greed and illegal conduct. Training assists when there is a mistake because it may help in determining a lower penalty.
The speakers advised to be aware when flattered because it could be a form of manipulation. The test of compliance includes whether an act is clearly legal versus arguably, whether it is ethical to do, and if the company wants to be associated with the conduct even though it is legal.
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