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When Is an Insured Entitled to Independent Counsel?
A claim is made against the insured. The insurer has a duty to defend. The insurer agrees to defend subject to a reservation of rights, and refers the matter to panel counsel. The insured asserts that the reservation of rights creates a right to independent counsel, paid for by the insurer. Is the insurer obligated to provide independent counsel? Not necessarily.
This article discusses the judicial and legislative bases for the right to independent counsel and identifies situations/circumstances where courts have or have not found that such a right exists. Somewhat surprisingly, the courts have been relatively restrictive as to what situations create a right to independent counsel. Please note that this is not an exhaustive review of the law in all states, but is designed more as a survey of those states that generally have a more developed body of insurance law.
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.
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.
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.
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.