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There are several standard topics that in-house counsel have always watched carefully, such as the subtlety of ethics questions, conflicts, who is considered a client and the standard privilege issues. But times have changed, and the most vigilant may still find themselves in untenable positions. The old mantra for in-house counsel ' watch your back ' has been replaced with the question: “Whose back are you watching?” As we forge ahead, as important as it is to discern who the clients are is telling them and reminding ourselves how we maintain the privilege that is so critical to in-house attorney-client communications.
The highly controversial section 307 of the U.S. Sarbanes-Oxley Act, introduced after the collapse of Enron to appease the public's baying for corporate blood, now has in-house counsel more concerned about their own derriere than that of their employers. Many feel that section has effectively “deputized” the in-house lawyers of publicly listed companies, forcing them to turn in their employer/client to the U.S. Securities and Exchange Commission (SEC).
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The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
There's current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.
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