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An Exception That Could Swallow the Rule of Qualified Immunity
Attorneys have historically enjoyed a measure of immunity that shields them from suits by non-clients for alleged injury arising from legal advice provided to their clients. Yet the existence of immunity has not dissuaded non-clients from filing suit, and many have sought compensation from attorneys for harm allegedly flowing from the application of their legal advice, especially where the attorney's former client cannot be found or has become judgment proof. In response to such suits, courts have narrowed the scope of attorney immunity in what might be considered foreseeable ways, for example by recognizing exceptions where the attorney and non-client are found to be in a quasi'attorney-client relationship, or where the attorney was acting in his or her own self-interest and beyond the bounds of any attorney-client relationship.
Courts' application of these exceptions has been limited and fact specific. Exceptions are most often found where an attorney has failed to properly draft a will or trust for a known and intended beneficiary, where the attorney was found to have competing duties between a corporation, its board, and its shareholders, and where the attorney was acting for his own self-interest rather than, or in addition to, the interests of his client. Courts have, however, strictly applied attorney immunity in adversarial situations and rarely if ever find an attorney liable to an adverse party in a litigation situation. Consequently, attorneys acting within the proper scope of the attorney-client relationship can generally provide legal advice to their clients without fear of incurring potential liability to those they are not representing, especially during litigation or other demonstrably adversarial settings.
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.
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.