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John Gaal's Ethics Corner
Q: I am in the middle of litigation and I have just learned that one of my firm's business clients is listed as an expert witness by the other side. Does that pose any problems for me?
A: Yes, it does. An attorney owes his or her client an undivided duty of loyalty. That duty is put at risk on two fronts when an attorney finds him- or herself cross-examining an adverse witness who is also a client. First, it pits the attorney against his or her (or the firm's) witness-client, who could reasonably be concerned that a confidence or secret he had imparted to the firm in the course of its representation of him could now be used against him during cross examination. Second, it provides a basis for the attorney's litigation client to question whether he or she will be zealously represented in the cross examination of the expert, or whether the lawyer's pre-existing business relationship with the witness-client will cause the lawyer to “take it easy” in the cross examination.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.