1. Panel 503: Exploring Ethical Issues Through Film
Sarah A. Maguire, BAE Systems
William J. Hochul, Jr., Delaware North Companies, Inc.
Marcy Smorey-Giger, LegalSifter Inc.
Ann Marie Painter, Perkins Coie LLP

2. A Preview…
[Movie clips pre-roll]

3. Goals
Cover important ethical rules/quagmires confronting in-house counsel
Explore the way in which ethical issues were addressed
What happened?
Was it successful?
How could it have been different/better?
Interactive session

5. Module 1: Investigations The issues
Who is your client?
How do you protect privilege?
How do you successfully and ethically interview employees who may be at risk?
Upjohn
Representing the company vs the employee, particularly in the post-Yates memorandum world

6. Module 1: Investigations (Model) Rules in Play
Rule 1.7: Conflict of Interest
Rule 1.13: Organization as Client

7. Module 1: Investigations Who is your client?
[Clip 1]
(Jan’s explanation of corporate lawyer around 2:05)

8. Module 1: Investigations Who is your client?
Model Rule 1.13(f)
Upjohn (sample in the materials)
Yates Memo: company can be eligible for cooperation credit only if it discloses all relevant facts about individuals involved in corporate misconduct

9. Module 1: Investigations Sample Upjohn
I am an attorney at/for Company.
I am conducting this interview to gather facts in order to provide legal advice to the Company. I represent the company and not you personally.
Your communications with me are protected by the attorney-client privilege. This generally means that no one can force you or me to disclose in court what we tell each other today. But the attorney-client privilege belongs solely to the Company, not you personally. That means that the Company alone may elect to waive the attorney-client privilege and reveal our discussions to third parties. The Company alone may decide to waive the privilege and disclose this discussion to such third parties as federal or state agencies, at its sole discretion, and without notifying you.
In order for this discussion to be subject to the privilege, it must be kept in confidence. In other words, with the exception of your own attorney, you may not disclose the substance of this interview to any third party, including other employees or anyone outside the company. You may discuss the facts of what happened but you may not discuss this discussion.
Do you have any questions?
Are you willing to proceed?

10. Applying the Rules:
[Clip 2]

11. Module 1: Investigations Reviews
What did you see?
What went well?
What could have gone better?
Is the lawyer going to get referred to the bar?

13. Module 2: Witness Preparation – Dos and Don’ts
Rule 1.1 Competence
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

14. Module 2: Witness Preparation – Dos and Don’ts
Rule 1.3 Diligence
“A lawyer shall act with reasonable diligence and promptness in representing a client.”
Comment 1
“…A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.”

15. “The Lecture” Anatomy of a Murder
[Clip 3]

16. Module 2: Witness Preparation – Dos and Don’ts
Rule 3.3 Candor Toward The Tribunal
“(a) A lawyer shall not knowingly:
… (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”

17. Type of Preparation - The Verdict
[Clip 4]

18. Type of Preparation - My Cousin Vinny
[Clip 5]

19. Module 2: Witness Preparation – Dos and Don’ts
Rule 1.13 Organization As Client
“(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”

20. Module 2: Witness Preparation – Dos and Don’ts
Rule 1.13 Organization As Client
“(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.”

21. A Civil Action [Clip 6] http://www.youtube.com/embed/88okjZzYh8g
No Start or End Time – is already a full clip - 5:09

22. Module 2: Witness Preparation – Dos and Don’ts
Rule 8.4 Misconduct
“It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; …
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice…”.

23. Module 2: Witness Preparation – Dos and Don’ts
Explain Process
Emphasize Truth
Refresh, Not Direct Memory
Review Evidence
Eliminate Opinion, Conjecture, Irrelevant Facts
Rehearse Direct, Cross

24. Module 2: Witness Preparation – Dos and Don’ts
Rule 8.4 Misconduct
“It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; …
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice…”.

26. Module 3: Obligations to the Client
Model Rules of Professional Conduct: Preamble & Scope
PREAMBLE:  A LAWYER'S RESPONSIBILITIES
[4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

27. Module 3: Obligations to the Client
Client-Lawyer Relationship
Rule 1.1 Competence
Rule 1.3: Diligence
Rule 1.4: Communications
Rule 1.6: Confidentiality of Information

28. Module 3: Obligations to the Client
Rule 1.1      
Competence  

29. Ted 2
[Clip 7]

30. Module 3: Obligations to the Client
RULE 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

31. Module 3: Obligations to the Client
Rule 1.1 Competence
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.
It also includes adequate preparation.

32. Module 3: Obligations to the Client
Rule 1.1 Competence
Use your legal knowledge and skill on behalf of your client.
Approach your work with all the thoroughness and preparation necessary to protect your client's interest.

33. Module 3: Obligations to the Client
Rule 1.1 Competence
A newly admitted lawyer can be as competent as a practitioner with long experience.
Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems.
Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.
A lawyer can provide adequate representation in a wholly novel field through necessary study.

34. Module 3: Obligations to the Client
Rule 1.1 Competence
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

35. Module 3: Obligations to the Client
RULE 1.3: Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.

36. Module 3: Obligations to the Client
Rule 1.3: Diligence
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor.

37. Module 3: Obligations to the Client
Rule 1.3: Diligence
A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.

38. Module 3: Obligations to the Client
Rule 1.3: Diligence
A lawyer's work load must be controlled so that each matter can be handled competently.

39. Module 3: Obligations to the Client
Rule 1.3: Diligence
Perhaps no professional shortcoming is more widely resented than procrastination.
A client's interests often can be adversely affected by the passage of time or the change of conditions.
Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness.

40. Module 3: Obligations to the Client
Rule 1.3: Diligence
Represent the client competently, zealously, and within the bounds of the law.
An example…

41. Module 3: Obligations to the Client
Rule 1.3      
Diligence  

42. The Insider
[Clip 8]

43. Module 3: Obligations to the Client
RULE 1.4: Communications
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

44. Module 3: Obligations to the Client
Rule 1.4      
Communications  

45. Erin Brockovich
[Clip 9]

46. Module 3: Obligations to the Client
Rule 1.4: Communications
What did you see?
What concerns do you have?
What risks are present?

47. Module 3: Obligations to the Client
Rule 1.4: Communications
Keep client informed of developments.
Communicate via an effective mechanism.
Communicate in a timely manner.

48. Module 3: Obligations to the Client
Rule 1.4: Communications
The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.

49. Module 3: Obligations to the Client
Rule 1.4: Communications
When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization.

50. Module 3: Obligations to the Client
Rule 1.4: Communications
To communicate with clients is simple enough what's difficult is carrying out that duty under many different an often complex circumstances.

51. Module 3: Obligations to the Client
Rule 1.4: Communications
Remember to initiate communications on six key occasions:
(1) When decisions require client consent about the objectives of the representation, such as the decision to settle or appeal.
(2) When seeking any waiver of a client fiduciary obligation, especially confidentiality and conflicts of interest.
(3) When decisions require client consent about the means to be used to accomplish client objectives, such as whether to litigate, arbitrate or mediate a matter; or whether to stipulate to a set of facts.
(4) When clients should be updated on the status of a matter, especially information about developments in the representation itself, such as a serious illness of the lawyer or merger with another firm.
(5) When the client requests information.
(6) When the client expects assistance the lawyer cannot provide, such as counsel in committing crimes.

52. Module 3: Obligations to the Client
RULE 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: …exceptions here…
(c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

53. Module 3: Obligations to the Client
Rule 1.6: Confidentiality of Information
The principle of client-lawyer confidentiality is given effect by related bodies of law:
the attorney-client privilege,
the work product doctrine, and
the rule of confidentiality established in professional ethics.

54. Module 3: Obligations to the Client
Rule 1.6: Confidentiality of Information
A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.
This contributes to the trust that is the hallmark of the client-lawyer relationship.

55. Module 3: Obligations to the Client
Rule 1.6: Confidentiality of Information
Prohibits a lawyer from revealing information relating to the representation of a client.
This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person

56. Module 3: Obligations to the Client
Rule 1.6: Confidentiality of Information
The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

57. Module 3: Obligations to the Client
Rule 1.6: Confidentiality of Information
Requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.

58. Module 3: Obligations to the Client
Rule 1.6: Confidentiality of Information
When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.
This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy.
Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy? …beyond the scope of these Rules

59. Module 3: Obligations to the Client
Rule 1.6: Confidentiality of Information
Keep conversations with you confidential, except in specific and rare occasions.
What not to do…

60. Module 3: Obligations to the Client
Rule 1.6      
Confidentiality
of Information 

61. And Justice for All
[Clip 10]

63. Better Call Saul
[Clip 11]

64. Module 4: The Impaired Practitioner
Mental illness
Deceit by practitioner
Continued employment/active practice
Personnel decisions by firm
Reporting

65. Module 4: The Impaired Practitioner
Rule 1.1.: Competence
Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers
Rule 8.3: Reporting Professional Misconduct

66. Michael Clayton
[Clip 12]

67. Module 4: The Impaired Practitioner
Mental illness
Continued representation of clients
Knowledge of partners
Obligation to act

68. Module 4: The Impaired Practitioner
Rule 1.16: Declining or Termination Representation
Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers
Rule 8.3: Reporting Professional Misconduct
Rule 8.4: Misconduct

69. Closing Thoughts
[Clip 13]
Add the Philadelphia clip