Basic Training: The Essential Elements of Any Ethics Training Program

In May, I gave a series of "Ethics Boot Camp" presentations for InsideCounsel's annual SuperConference. One of the central messages to my in-house peers was the value of conducting regular ethics training for their legal teams.

Regular ethics training introduces in-house lawyers to the latest in the world of corporate ethics and ensures they stay updated. The basic training could also serve as a basis for more in-depth discussion on ethics. This could lead to the establishment of a legal department affinity group for forming best practice solutions in response to company-specific issues.

This month's column will discuss the basic elements of any ethics training program. This should serve to provide in-house counsel with a yardstick to determine how comfortable they are with their own ethics IQ.

Expectations of In-House Counsel. A natural starting point is to address the expectations that departments, business partners and government regulators have of in-house lawyers. One useful method is the use of hypothetical case studies that lead to discussion of the nature of risk (legal vs. financial), the role of the organization's ultimate decision makers and the duty of in-house lawyers in day-to-day risk management and the government's evolving expectations of in-house counsel. For example, the current financial crisis will most certainly yield additional insights into the role regulators expect in-house lawyers to play in an organization.

The Nature of the Client. The curriculum should move on to a discussion of the organization as a client, and how to manage the conflicts that arise when a corporate constituent may have interests that are not completely aligned with the greater corporate goal. From a training perspective, the issue is also best illustrated through case studies that focus on the importance of the organizational client's needs while dealing with moves a host of players make within the corporation.

Internal Investigations. Nowadays, regulators are quick in moving against counsel seen as obstructing the investigation process. This portion of the training should focus on handling the initial interview, as well as when to use the so-called "corporate Miranda" warning notices. In successive memoranda on charging corporate defendants, the Department of Justice has offered its view on how counsel should conduct themselves over the course of any internal investigation, as well as how it expects in-house lawyers to manage attorney-client privilege.

Confidentiality. Of course, confidentiality is a concept that continues to evolve in the business and legal worlds, and it is therefore worthy of inclusion in any ethics training program. For example, the American Bar Association amended its Model Rules of Professional Conduct in 2003 to provide, under very narrow circumstances, for an attorney's optional disclosure of otherwise confidential information to third parties. The Securities and Exchange Commission also has an independent "reporting out" rule as part of its code of conduct for attorneys practicing before it. Every member of your team should understand these rules and the policies that animate them. I encourage special training for those companies the SEC rules cover. A mere pedestrian understanding of these rules is dangerous and is likely to prompt unwise action--or unethical inaction.

The Attorney-Client Privilege. A final syllabus topic is managing the attorney-client privilege in a corporate setting. A comprehensive review of the dynamic jurisprudence around the privilege is a critical training mandate. I encourage potential trainers to develop a "privileged or not privileged" test involving specific scenarios that occur in day-to-day activities. This will call attention to any lack of understanding.

Brian Martin

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