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John Gaal's Ethics Corner
Q: I am scheduled to appear before the Second Circuit in a case next month. The case turns on an issue of statutory construction. I just found out that one of my partners is arguing a case before the New York State Appellate Division, Fourth Department next week, involving a very similar issue under the same statute, but, on behalf of his client, he is arguing a construction that is directly at odds with my position. Can we take these inconsistent positions?
A: According to both the ABA's Committee on Ethics and Professional Responsibility and the Restatement (Third) of the Law Governing Lawyers, this situation can present a serious conflict, requiring the lawyer to either refuse or withdraw from one of the representations.
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.
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.
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.
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.
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.