1. ABA CRIMINAL JUSTICE SECTION INTERNAL INVESTIGATIONS: NAVIGATING THE ETHICAL MINEFIELD

2. 2 I.Structure of Investigation Who conducts it? Who they report to? II.Conduct of Investigation III.Reporting Results AGENDA

3. SELECTING COUNSEL SEC Seabord Report: “Where the review was conducted by outside counsel, had management previously engaged such counsel?” 3

4. RELATIONSHIP WITH OUTSIDE COUNSEL Kirschner v. K & L Gates LLP (Pa. Super. Ct. 2012): Plaintiffs’ complaint was legally sufficient as to outside counsel’s breach of professional duty where the implicated CEO was provided regular updates on the investigation, including “a description of the topics that K&L Gates intended to address during employee interviews, thus enabling [the CEO] to coach those witnesses before their interviews.” 4

5. WITNESS INTERVIEWS ABA Model Rule 1.13(f): “In dealing with an organization's directors, officers, employees... or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.” 5

6. WITNESS INTERVIEWS In re Grand Jury Subpoena Under Seal (4th Cir. 2005): Investigating attorney’s statement to interviewee, “As long as no conflict of interest is present, we could represent you too,” did not create attorney-client relationship but the court noted it was a “potential legal and ethical mine field.” 6

7. JOINT REPRESENTATIONS ABA Model 1.13(g): “A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents” but the organization’s consent might be required. 7

8. “UP THE LADDER” REPORTING SEC Attorney Conduct Rules 17 C.F.R. 205.3: “If an attorney, appearing and practicing before the Commission in the representation of an issuer, becomes aware of evidence of a material violation by the issuer... the attorney shall report such evidence to the issuer's chief legal officer... or to both the issuer's chief legal officer and its chief executive officer... forthwith. By communicating such information to the issuer's officers or directors, an attorney does not reveal client confidences or secrets or privileged or otherwise protected information related to the attorney's representation of an issuer.” 8

9. DISCLOSURE OBLIGATIONS ABA Model Rule 1.13(c)(2): May reveal information when “the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization.” ABA Model Rule 1.6: Does not authorize disclosure where lawyers services are not used in furtherance of crime or fraud. IL: Only in furtherance of fraud 9

10. DISCLOSURE OBLIGATIONS SEC Rule 102( e): “The Commission may censure a person or deny, temporarily or permanently, the privilege of appearing or practicing before it in any way to any person who is found by the Commission after notice and opportunity for hearing in the matter” to, among other things, “have willfully violated, or willfully aided and abetted the violation of any provision of federal securities laws or the rules and regulations thereunder.” SEC Rule 205.1 (17 C.F.R.Section 205.1): “Where the standards of a state or other United States jurisdiction where an attorney is admitted or practices conflict with this part, this part shall govern.” ABA Model Rule 1.6: Allows disclosure to “comply with other law.” 10

11. CONFIDENTIALITY Ryan v. Gifford (Del. Ch. 2007): Oral report to full board, including people who were subject of investigation, constituted waiver of entire subject matter. 11