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Using Staff Counsel to Defend Insureds
The Texas Supreme Court recently declared that insurance companies do not commit the unauthorized practice of law when they use lawyers they employ to provide a defense to their insureds. Unauthorized Practice of Law Comm. v. Am. Home Assurance Co., __ S.W.3d __, Case No. 04-0138, 2008 Tex. LEXIS 233 (Tex. Mar. 28, 2008).
The court's opinion demonstrates a pragmatic approach to a common situation and is interesting not so much for its direct result ' as the court notes, most states to have considered the issue have allowed insurers to use staff attorneys ' as it is for the implications of its rulings and the pragmatic grounds on which those rulings are based. Among other things, the opinion reinforces the ethical obligation of all defense counsel to their client, the insured. The opinion also suggests limits on the use of staff attorneys that could lead to a three-tier approach to defense counsel turning on the extent of congruence between the insured's and the insurer's interests. The court, however, provided little concrete guidance as to the situations in which the use of a staff attorney is not appropriate, placed on both insurers and their staff attorneys a burden of determining when such use is appropriate, and missed an opportunity to address the use of reservation-of-rights letters, which it admitted can often be “routine.” The court also warned of potential knowledge-imputation pitfalls that could accompany the use of insurer employees to defend insureds.
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.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.