Professional Documents
Culture Documents
Facts:
• Parties
o You:
graduated
from
law
school
in
1990
spent
four
years
at
the
firm
of
Able
&
Baker
(A&B)
While
at
A&B,
you
had
3
major
exposures
to
Shearson
Partner
(SP)
• 1992:
SP’s
purchase
of
Logic
Tech,
Inc
o reviewed
exclusive
licenses
under
which
LogicTech
sold
technology
that
had
become
its
key
revenue
source.
• 1994:
SEC
investigation
into
suspicious
stock
trading
o SP
simply
responded
to
an
SEC
document
request
• 1996(after
you
joined
C&D):
spoke
at
a
panel
presentation
on
corporate
development
at
the
annual
SP
Retreat,
which
provided
an
opportunity
to
“meet
and
great”
SP
partners.
joined
the
firm
of
Charrow
&
Delta
(C&D)
in
September
1994
as
a
fifth
year
associate,
and
on
January
1,
1997
became
a
C&D
partner.
o Parent
Co—Your
Client:
Intended
to
sale
one
of
its
divisions
(an
assest
of
Parent
Co.)to
SP
and
Victor,
Inc
,
and
the
Division
would
be
later
incorporated
as
New
Co.
General
Counsel:
Terry
Rushton
Division’s
so-‐called
“Management
Group”—EVP
and
2
Senior
VPs
o Shearson
Partners—Represented
by
A&B:
Lead
Negotiator:
Robin
West
Partner:
Pat
Sampson
Presumably
owns
60%
of
New
Co.’s
stock
o Victor.Inc:
Owns
40%
of
New
Co.’s
stock
Unpleased
about
the
hiring
audit
and
foreign
bribery
issue
Issue
(1):
• In
assessing
your
conduct,
the
Legal
Practices
Committee
wants
to
determine
o (a)
if
the
work
you
did
adverse
to
SP
was
“substantially
related”
to
work
you
personally
performed
for
SP
while
at
A&B;
Legal
Standard—Rule
1.8
“Substantial
Relationship
Test”
in
T.C..&Theaters:“
the
former
client
need
show
no
more
than
the
matters
embraced
within
the
pending
lawsuit
wherein
his
former
attorney
appears
on
behalf
of
his
adversary
are
substantially
related
to
matters
or
cause
of
action
wherein
the
attorney
previously
represented
him,
the
former
client.”
• “substantially
related”
is
a
term
of
art
that
permits
the
court
to
gauge,
on
a
case-‐by-‐case
basis,
the
real
risk
that
the
former
client’s
confidences
will
be
used
against
the
client.
See
Comment
[3]Matters
are
"substantially
related"
for
purposes
of
this
Rule
if
they
involve
the
same
transaction
or
legal
dispute
or
if
there
otherwise
is
a
substantial
risk
that
confidential
factual
information
as
would
normally
have
been
obtained
in
the
prior
representation
would
materially
advance
the
client's
position
in
the
subsequent
matter.
Legal
Analysis—Application
of
the
Standard
What
is
the
work
I
did
adverse
to
SP—Negotiating
and
Closing
the
deal
on
behalf
of
Parent
Co.
to
SP
and
Victor
What
is
the
work
I
previous
did
for
SP—2
projects
The
facts
in
this
case
clearly
does
not
satisfy
the
first
half
of
the
test—No
same
transaction
or
legal
dispute
It’s
unlikely
that
through
reviewing
exclusive
licenses
of
LogicTech
you
could
gain
any
confidential
factual
information
that
would
materially
advance
Parent
Co.’s
position
However,
it’s
unclear
whether
such
information
could
have
been
obtained
by
preparing
materials
in
response
to
SEC’s
investigation
The
SP
Retreat
should
not
be
used
as
an
occasion
to
attack
the
lawyer
in
this
case
given
its
public
nature
and
the
fact
that
by
the
time
of
the
Retreat
the
lawyer
in
this
case
was
no
longer
an
employee
of
SP’s.
The
lawyer
went
to
the
Retreat
as
purely
a
speaker
without
any
contemporavious
nexus
with
SP.
It’s
mind-‐boggling
that
every
lawyer,
many
of
which
from
other
firms,
who
went
to
that
Retreat
should
be
prohibited
from
undertaking
any
representation
of
clients
whose
interests
are
adverse
to
that
of
SP’s.
In
conclusion,
the
court
is
more
likely
than
not
to
rule
that
the
two
representations
are
not
substantially
related.
• (b)
if
during
your
employment
at
A&B
you
learned
any
actual
confidences
of
SP’s
that
were
material
in
SP’s
purchase
of
Division.
(Focus
on
just
those
two
issues;
do
not
do
a
full
analysis
of
the
lateral
attorney
rules,
former
client
rules,
etc.)
Discuss.
o Two
probable
occasions
where
you
might
have
learnt
some
confidences
The
SEC
investigation
That
Robin
West
being
SP’s
choice
when
the
acquiror
had
an
“I
can
take
it
or
leave
it
attitude”
Especially
under
the
so-‐called
“playbook
theory”--the
former
client
can
assert
that
even
if
there
is
no
legal
or
factual
overlap
between
the
current
adversity
and
the
former
ACR,
the
lawyer
learned
how
the
former
client
tends
to
handle
legal
matters,
how
it
negotiates,
and
how
it
values
legal
claims.
Issue
(2):
• The
Legal
Practices
Committee
wants
to
determine
if
any
of
your
conduct
violated
your
duty
of
loyalty
to
Parent
during
the
transaction.
Discuss.
• Duty
of
Loyalty
to
Parent
During
the
Transaction
o Communication
Fail
to
communicate
with
Rushton
before
visiting
West’s
officebasically
the
lawyer
made
the
decision
ex-‐parte
o Prioritize
the
interests
of
Management
Group
Throughout
the
whole
transaction,
the
client
is
Parent
Co.,
not
the
Management
Group.
In
the
hope
that
the
Management
Group
would
retain
you
for
NewCo’s
legal
work,
you
prioritize
the
interests
of
the
Group
over
that
of
Parent
Co.
Advocate
for
the
better
offer
to
Management
Group
is
not
necessarily
consistent
with
seeking
the
best
situation
for
Parent
Co.
Conversely,
the
two
interests
might
be
in
conflict
when
all
that
Parent
Co.
wanted
is
a
better
price
for
the
Division
as
a
whole
and
that
price
could
be
significantly
cut
lower
when
the
purchaser
has
to
pay
a
lot
for
the
Management
Group.
You
jointly
agreed
on
a
“don’t
lie
but
don’t
tell
too
much”
strategymade
yourself
a
co-‐conspirator
of
the
fraud
against
the
interest
of
Parent
Co..
o Conceal
the
hiring
audit
and
bribery
issue
This
might
later
jeopardize
Parent
Co.
by
dragging
them
into
endless
lawsuit
for
fraud
and
etc.
Non-‐disclosure
under
this
context
DID
violate
the
confidentiality
rule,
meaning
the
lawyer
itself
might
have
to
stand
the
scrutiny
of
the
state
bar
association
in
addition
to
contractual/tortious
fraud
charges.
Non-‐disclosure
in
this
case
involves
• Parking-‐lot
talk
• Faxing
federal
court
opinion
knowing
that
the
material
was
far
from
impartial
2/20/10 5:58 PM
2/20/10 5:58 PM