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Attorney-client privilege: tough calls ahead

Filed in archive SOX by leon on December 12, 2005

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For lawyers post-SOX, it's a whole new ball game. More headaches and tough decisions. And plenty of work.

The requirements brought in under Sarbanes-Oxley have re-written the rules, particularly in regard to attorney-client privilege. Potential flashpoints include mandatory reports, where attorneys are required to report any breaches of fiduciary duties to their superiors and, if there is no response, to the directors, and permissive reports, where the attorney can report when in possession of confidential information that could either damage the company, or commit a fraud or perpetrate actions that hurt investors' interests. The pressure to waive attorney-client privilege is real, and regulators are putting the heat on companies and attorneys to do it. You can have a full analysis here.

General Counsels have been warned that they have to make sure their backs are covered. As Jeff Metzger, associate general counsel at Unisys told a conference, lawyers must now be kept separate from business functions. "Every lawyer needs to understand that they have obligations that really may transcend what their management may be telling them...Keeping your own GC independent of the business functions, I have always thought, is very important. And I think these requirements under this aspect of Sarbanes confirm the need for doing that." Or as one Securities and Exchange Commission litigator told the conference: "If you want to avoid exposure you've got to stand up and you've got to rat on your friends." That must have gone down like a brick parachute!

Sarbanes-Oxley is also playing a role in the increased litigation. A recent report commissioned by Fulbright & Jaworski found that contract and employment disputes are now the most frequent kinds of litigation faced by corporate legal departments, and that the whistleblower protection under Sarbanes-Oxley has also led to the increase in litigation.

At the same time, a new survey shows that most expect the amount of regulation is going to increase.

One thing's for sure: if there are any jobs that are going out of existence, it won't be lawyers.


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Permalink: Attorney-client privilege: tough calls ahead
Tags: Attorneyclient  privilege  SarbanesOxley  Unisys  Securities 

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