Corporate Counsel May Speak To Agency Investigating Client

Corporate Counsel Weekly™ helps corporate lawyers get the big picture on the legal challenges facing corporations today. Practitioners can discover trends on the horizon and stay alert to the full...

Jan. 22 — In-house corporate counsel may submit to an interview with an administrative agency investigating alleged wrongdoing by the company if the client consents and doing so will not require the lawyer to disclose confidential information, the New York State Bar's ethics committee advised Jan. 8.

But the committee warned that the lawyer's participation in such an interview may preclude his or her subsequent advocacy on the company's behalf if the agency probe results in proceedings before a tribunal.

Nothing Confidential

The opinion responds to an inquiry asking whether an in-house lawyer for a corporation may submit voluntarily to an interview with an agency that is investigating allegations of wrongdoing a third-party has made against the company.

According to the committee, the lawyer's appearance will be permissible only if the “facts [he or she] would discuss during the interview are not subject to the attorney-client privilege and do not otherwise constitute confidential information of the client.”

This condition is not an issue here, it said: “We have been told, and we assume for purposes of this opinion that the information the lawyer would relate to the agency concerns the conduct of the client at a meeting at which the adversary was present (and thus would not be protected by the attorney-client privilege), and that the information related by the lawyer will not be embarrassing or detrimental to the client, and that the client has not requested that it be kept confidential.”

The opinion notes that the interview also “may be beneficial” to the company because it “may help to avert a formal complaint” against it.

Lawyer May Be Sidelined

Because the lawyer would not be asked to breach confidentiality, the committee said Rule 1.6 of the New York Rules of Professional Conduct does not bar his or her participation in the interview.

But the lawyer's appearance may preclude his or her ability to act as an advocate before a tribunal if the agency decides “to bring a formal complaint against the client following the interview,” the committee found.

“At that point, if the lawyer is ‘likely' to be a witness on a significant issue of fact, Rule 3.7(a) will come into play, and the lawyer will not be able to act ‘as advocate before' the tribunal unless one of the exceptions in Rule 3.7(a) applies,” the committee said.

“The rule applies whether the lawyer would be called as a witness by the lawyer's client or the client's adversary,” it added, “and whether or not the lawyer's testimony would be favorable to the client.”

The panel said that “whether the lawyer is likely to be a witness on a significant issue of fact is a factual question beyond the jurisdiction of this Committee.”

That determination, it added, “requires evaluating other available testimony.” The opinion cites MacArthur v. Bank of N.Y., 524 F. Supp. 1205 (S.D.N.Y. 1981), as a source of guidance on the issue.

Full text is available at Content.aspx?id=54113.