Traversing tricky ethical boundaries comes with the territory of an in-house counsel gig. Though in-house attorneys can often turn to their GCs to guide them in the right direction, it's also important to have an independently firm grasp of ethics rules.
Here are three common ethics issues in-house counsel face:
- E-discovery. In-house counsel must take affirmative steps to monitor compliance with litigation holds. An effective way to do this is to hire (competent!) outside counsel to advise on e-discovery issues. Also, to safeguard client information from inadvertent disclosure, including privileged communications, keep FRE 502 near and dear to your heart. An easy (and fun!) way to avoid the e-discovery ethical brouhaha is to become BFFs with your IT department.
- Identifying your client. In-house counsel are in the unique position of interfacing with many moving parts of the company. While you may already know to avoid providing legal assistance to that mid-level employee's grand spinoff startup plan, you also need to be careful about giving legal advice to your company's subsidiaries, affiliates, joint ventures, and LLCs -- especially when there are issues about transactions, insolvency or ownership. In many states like California, it's your legal duty to make it clear to others that the company is your client. Avoid dishing advice on personal matters and encourage the retention of separate counsel.
- Outsourcing work. It's becoming increasingly common to outsource legal work to cut down on costs. But remember, when your company outsources legal work -- be it doc review, tax work, legal research, or patent applications -- the manner in which the work is conducted must still meet your ethical obligations. This is even more important if the outsourced work includes privileged material. To play it safe, get client consent and supervise the heck out of the work you farm out.
To keep abreast of your ethical obligations, you may want to -- with a glass of wine in hand -- revisit your state bar's rules, the ABA rules, court opinions, and timely ethics opinions produced by bar associations and committees.
Are there any ethics issues you're particularly concerned about? Let us know on Twitter at @FindLawLP.
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