Celebrating Law Day and the Magna Carta!!

There’s scores of people out there busy preparing for tomorrow’s Cinco de Mayo celebrations, totally unaware that Law Day was just celebrated in the US on May 1st, for the fifty-seventh consecutive year. While it doesn’t involve sipping margaritas or wearing a festive sombrero, Law Day has its own unique importance.

President Eisenhower established this national holiday to honor the notion that the United States was founded on the rule of law as a “safe, free and just society” (Strong, 2015). This celebration of the roots of our nation is traced back to the Margna Carta of 1215, which celebrates its eight hundredth anniversary in 2015. The ABA has a webpage dedicated to the importance of the Magna Carta, which boats that the influence of its “story of modern constitutional government and its associated rule-of-law values” is still continuing and relevant today (ABA, 2015).

The blog written by Frank Strong reminds us that the Magna Carta’s key principles utilized in the founding of our nation’s democracy include:

• No taxation without representation
• Right to a fair trial
• No one is above the law – not even a king

So it’s very fitting that on Law Day, this past May 1st, those of us in the legal profession celebrated not only the rule of law in our government’s founding, but also the Magna Carta’s eight hundred year long history.

(Image courtesy of: http://businessoflawblog.com/2015/04/infographic-magna-carta/)

Sources:

http://businessoflawblog.com/2015/04/infographic-magna-carta/

http://iconofliberty.com/

https://www.whitehouse.gov/the-press-office/presidential-proclamation-law-day-usa

Complying with the FCPA and Preventing Violations

“Foreign bribery is not an acceptable way of doing business, and we won’t tolerate it.” (Maye Brown LLP). This statement by Lanny Breur in 2010, the Assistant Attorney General for the United States, strikes at the heart of the FCPA, or the Foreign Corrupt Practices Act. Competing internationally for business, it is commonplace for companies to issue bribes in order to beat out their competitors, and in some areas of the world, it’s often expected. However, this practice is illegal for US companies, and it is the responsibility of a corporate legal department to educate executive management as well as employees on the dangers and consequences of such illegal activities.

This slide share put together by Michael Volkov of Mayer Brown LLP discusses the many important point of the FCPA legislation, and what corporate counsel must consider in ensuring its company complies with the Act.

(Courtesy of: http://www.slideshare.net/mvolkov/association-of-corporate-counsel-fcpa)

It’s important to take away from this that enforcement of the FCPA by the Department of Justice (DOJ) and FBI are on the rise, and companies must be vigilant in their compliance in order to avoid substantial fines and even jail time. It is the job of corporate counsel to ensure that:

• employees understand the breadth of the FCPA rules in order to comply
• accounting and finance departments are keeping accurate books and records, adequate internal controls
• wholly-owned international subsidiaries also comply with the FCPA
• report any violations through voluntary disclosures

Major violations and resulting fines have crippled large companies. Corporate counsel must help steer the company clear of such pitfalls.

Sources:

http://www.slideshare.net

http://www.justice.gov/criminal/fraud/fcpa/

The Ethical Slippery Slope for Corporate Counsel

(Image courtesy of: http://lindsayolson.com/wp-content/uploads/2012/02/Got-ethics2.jpg)

Staying honest isn’t always easy in business, and even the most careful general counsel can find itself caught up in an ethical debate. One of the major functions of an in-house corporate counsel is to provide the moral compass for its company, and to ensure the company’s business dealings remain on the right side of the law. It is often a chief objective when reviewing and negotiating contract language to avoid litigation opportunities. However, there are plenty of gray areas when ethical concerns may come into play. Here’s an introduction to just a few of the hot issues of corporate counsel ethics:

First – it’s imperative to understand who the actual client of in-house counsel really is. Is it the company as a whole? Its officers or directors? Employees? Subsidiaries? In-house counsel only has one client – the company. Circumstances may develop where corporate counsel needs to make it clear to an employee or officer that it represents the best interests of the company, not individuals employed by the company. Becoming embroiled an ethical conflict concerning a conflict of interest between the company and an individual officer or employee could lead to a violation of state bar rules (Stagg, 2013).

Second – there is an obligation to protect the confidential information of the company. This duty of confidentiality extends to all information related to the representation of the company. For instance, in a state like California, general counsel may report a legal violation to executive management, but if the company continues to violate the law, general counsel may still not disclose its knowledge outside the company (Santon, 2010).

Third – E-discovery and litigation holds, which occur when litigation is either foreseeable or actually commences, can be extremely controversial within a company. Issuing and monitoring litigation holds are part of corporate counsel’s duty to provide competent representation under ABA rules (Stagg, 2013). General counsel must not only issue the hold, but ensure the company is identifying and preserving all discoverable information. This may lead to the preservation of incriminating evidence against the company, but doing otherwise would violate the law (Santon, 2010).

This brief clip discusses litigation hold and the duties of corporate counsel in more depth:

(Courtesy: https://youtu.be/fXYzdrWMMr0)

Sources:

Allison, S., Massoumi, M., & Santon, K. (2010). Ethical Issues for In-House Counsel. Dorsey & Whitney LLP.

Stagg, Nancy. (2013). The Top 5 Ethical Issues Facing In House Counsel. Foley & Lardner LLP.