The Experts below are selected from a list of 2562 Experts worldwide ranked by ideXlab platform
Peter J. Henning - One of the best experts on this subject based on the ideXlab platform.
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The New Corporate Gatekeeper
2016Co-Authors: Peter J. HenningAbstract:Regulators and prosecutors are now asking corporations to report any wrongdoing within the organization as quickly and completely as possible. One group increasingly identified with the obligation to report misconduct is Corporate Counsel. Traditionally, lawyers had no duty to report misconduct by their clients under the attorney-client privilege, but that view has eroded as the government expects attorneys to take on a greater role in identifying violations that can lead to administrative and criminal sanctions against their clients. This Essay looks at how the role of the Corporate attorney is moving away from the “wise Counselor” model of legal representation and toward that of the whistleblower obliged to disclose information about potential violations by the Corporate client or risk being viewed as a participant in the misconduct, subject to civil and criminal sanctions. This presents especially vexing problems for in-house Counsel who represent a single client: they may find themselves at great financial risk if the gatekeeping requirement is expanded.
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Sarbanes-Oxley Act §§ 307 and Corporate Counsel: Who Better to Prevent Corporate Crime?
Buffalo Criminal Law Review, 2004Co-Authors: Peter J. HenningAbstract:While much of the Sarbanes-Oxley Act concerned the minutiae of Corporate governance, Section 307 of the Act was aspirational by directing the Securities & Exchange Commission (SEC) to adopt rules that enlist lawyers in preventing - or at least reporting - Corporate misconduct. In addition to adopting the "up-the-ladder" reporting rules mandated by Congress, the SEC sought to put teeth into the regulation of Corporate lawyers by proposing the "noisy withdrawal" rule that would have required outside Corporate Counsel to disclose publicly the reasons for withdrawal if the corporation persisted in a course of misconduct. The reaction of the organized bar was almost wholly negative, focusing on the supposed harm to the confidential lawyer-client relationship from the disclose of privilege information, and the SEC ultimately withdrew the proposal. The flaw in the SEC's proposed rule was that it coupled "noisy" with "withdrawal." Lawyers are not "gatekeepers" in the same way accountants have a duty to the investing public to ensure that a company conveys accurate information. Compelling disclosure to the public of a lawyer's withdrawal from representation imparts a gatekeeper role that can create more confusion in the market than clarity. The noise is largely superfluous to the goal of preventing Corporate crime, while withdrawal is an important step toward removing lawyers from the process that can lead to criminal conduct. Unfortunately, the Commission missed its chance to fulfill the congressional mandate of Section 307 and take an important step in preventing future Corporate crimes when it failed to require attorneys to withdraw from representation if a client persists in misconduct. The Article argues that the SEC should adopt the withdrawal portion of the noisy withdrawal rule, and that withdrawal should be mandatory for both outside Counsel and in-house lawyers when they become aware of Corporate misconduct and the corporation refuses to take adequate remedial measures. Mandatory complete withdrawal and the required disclosure to successor Counsel can make lawyers more effective in preventing or impeding Corporate crimes because the rule makes it significantly more difficult for the corporation to continue a course of conduct without considering the consequences. Much like the public disclosure sought by the Commission, withdrawal is a signal, only to a more limited audience: the corporation and the new lawyer. The rule relies on that second attorney to be as ethical as the first lawyer, and to refuse to accept the Corporate client if there is "evidence of a material violation" and a refusal to act appropriately.
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sarbanes oxley act 307 and Corporate Counsel who better to prevent Corporate crime
Buffalo Criminal Law Review, 2004Co-Authors: Peter J. HenningAbstract:While much of the Sarbanes-Oxley Act concerned the minutiae of Corporate governance, Section 307 of the Act was aspirational by directing the Securities & Exchange Commission (SEC) to adopt rules that enlist lawyers in preventing - or at least reporting - Corporate misconduct. In addition to adopting the "up-the-ladder" reporting rules mandated by Congress, the SEC sought to put teeth into the regulation of Corporate lawyers by proposing the "noisy withdrawal" rule that would have required outside Corporate Counsel to disclose publicly the reasons for withdrawal if the corporation persisted in a course of misconduct. The reaction of the organized bar was almost wholly negative, focusing on the supposed harm to the confidential lawyer-client relationship from the disclose of privilege information, and the SEC ultimately withdrew the proposal. The flaw in the SEC's proposed rule was that it coupled "noisy" with "withdrawal." Lawyers are not "gatekeepers" in the same way accountants have a duty to the investing public to ensure that a company conveys accurate information. Compelling disclosure to the public of a lawyer's withdrawal from representation imparts a gatekeeper role that can create more confusion in the market than clarity. The noise is largely superfluous to the goal of preventing Corporate crime, while withdrawal is an important step toward removing lawyers from the process that can lead to criminal conduct. Unfortunately, the Commission missed its chance to fulfill the congressional mandate of Section 307 and take an important step in preventing future Corporate crimes when it failed to require attorneys to withdraw from representation if a client persists in misconduct. The Article argues that the SEC should adopt the withdrawal portion of the noisy withdrawal rule, and that withdrawal should be mandatory for both outside Counsel and in-house lawyers when they become aware of Corporate misconduct and the corporation refuses to take adequate remedial measures. Mandatory complete withdrawal and the required disclosure to successor Counsel can make lawyers more effective in preventing or impeding Corporate crimes because the rule makes it significantly more difficult for the corporation to continue a course of conduct without considering the consequences. Much like the public disclosure sought by the Commission, withdrawal is a signal, only to a more limited audience: the corporation and the new lawyer. The rule relies on that second attorney to be as ethical as the first lawyer, and to refuse to accept the Corporate client if there is "evidence of a material violation" and a refusal to act appropriately.
Hugh Gunz - One of the best experts on this subject based on the ideXlab platform.
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Ethical Decision Making and the Employed Lawyer
Journal of Business Ethics, 2007Co-Authors: Sally Gunz, Hugh GunzAbstract:This article addresses one of the more disturbing questions raised by the major financial failures of the recent past; namely, how it could be that professionals, highly trained both in ethics and technical disciplines, should apparently collude with management in Corporate misbehaviour. The article builds on evidence suggesting that professionals in employment contexts find ways of adapting in order to minimise perceived or actual conflict between their professional and organizational obligations and that this, in turn, may affect the way in which they exercise professional judgment. It uses identity theory to propose that professionals may adopt modified identities when employed and that these identities may be expressed, in part, in the way in which they resolve ethical dilemmas. The article reports on the results of a qualitative study in which Corporate Counsel showed evidence of adopting these identities. The findings suggest that this line of research offers insight into a far more complex world of employed professionals than that traditionally hypothesised and that the popular approach of regulators and others to monitoring Corporate governance by appointing professionals as gate-keepers within the organization is perhaps problematic.
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Hired professional to hired gun: An identity theory approach to understanding the ethical behaviour of professionals in non-professional organizations
Human Relations, 2007Co-Authors: Hugh Gunz, Sally GunzAbstract:Most recent major financial scandals have come about with the assistance, tacit or active, of highly trained professionals whose ethical responsibilities were thereby violated. This article addresses the question of why this might happen. It argues that the problem may lie in the adoption of a common prescription, namely that to be effective, in-house lawyers need to be part of the corporation's strategic decision-making process. But, paradoxically, in so doing, the lawyers' identities might become modified such that the approach they take to handling ethical dilemmas becomes more like that of their non-lawyer colleagues, thus losing some of the benefits of their professionalism. The results of a postal survey of Canadian Corporate Counsel provide supporting evidence for this conclusion.
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The role of Corporate Counsel in the new governance model: sound policy or another quick fix?
International Journal of Business Governance and Ethics, 2004Co-Authors: Hugh Gunz, Sally Gunz, Robert V.a. JonesAbstract:The role of Corporate Counsel in the Corporate governance process has been long overlooked. This paper uses recent comments by Breeden as the springboard for a discussion of the issues surrounding significant roles for lawyers in corporations. It considers these both from a practical and a theoretical perspective and identifies why it is problematic merely to assume hiring lawyers will ensure good compliance both in terms of legal and ethical obligations.
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Professional/Organizational Commitment and Job Satisfaction for Employed Lawyers:
Human Relations, 1994Co-Authors: Hugh Gunz, Sarah P. GunzAbstract:This paper presents the results of a two part field study designed to examine issues of organizational-professional conflict (OPC) amongst employed layers (Corporate Counsel). The study adopts the Johnson (1972) collegiate/oligarchic typology, and hypothesises that the unexpectedly low OPC found by Aranya and Ferris (1984) amongst employed accountants is a function of the nature of the profession. It replicates the Aranya and Ferris study using subjects from a collegiate profession where, arguably, external reference groups and traditions are more powerful. Using standard multi-variate analysis, the study suggests that for this sample, OPC is no more of an issue than in the Aranya and Ferris study. There was, however, evidence of career factors impacting strongly upon organizational commitment, suggesting that previous ideas on the nature of the link between professionals and their employers are an oversimplification. The theoretical and practical iplications of these findings are discussed.
Thomas B. Leary - One of the best experts on this subject based on the ideXlab platform.
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SUGGESTIONS FOR AN EFFECTIVE COMPLIANCE PROGRAM FROM THE PERSPECTIVE OF Corporate Counsel
2016Co-Authors: Thomas B. Leary, Thomas E. LearyAbstract:I am supposed to be offering "Suggestions for an Effective Compliance Program from the Standpoint of Corporate Counsel." But, you've just heard a lot of good ones from Bob Raven, which are helpful for both inside and outside Counsel, and I don't want to replow the same ground. What I'd like to do instead is raise some questions that might confront antitrust Counselors. I am thinking of three in particular: the first relates to the substantive content of legal advice; the second involves possible disclosure obligations if antitrust violations are discovered; and the third concerns potential conflicts of interest in representing a corporation and its individual employees.
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A Corporate Counsel'S PERSPECTIVE
2016Co-Authors: Thomas B. LearyAbstract:Corporate Counsel have a distinctive perspective on these cost-containment issues. We wear two hats. Our management views us as lawyers, but our outside lawyers tend to view us as clients. In the course of this discussion I will have my client hat on most of the time because clients are not otherwise represented here. I want to emphasize, though, that these remarks do not just reflect my present experience; they are also based on my past experience as an outside lawyer, as well as conversations with a lot of other people.
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Presenting: an ABA National Institute on Preventive Antitrust
2016Co-Authors: Irving Scher, Thomas B. LearyAbstract:Sponsored by both the Section of Antitrust and the Section of Corporation, Banking and Business Law, this Institute is aimed primarily at "inside" Corporate Counsel or "outside" Counsel who function in an advisory capacity. It emphasizes antitrust Counseling techniques, rather than substantive rules of law. Practical solutions to Counseling problems will be explored by individuals and panels and illustrated by live "role playing." The entire program will be based on an assumed set of facts similar to those used in the recent successful Institutes on The Trial of an Antitrust Case and Representing a Client Before the Grand Jury. Lawyers will demonstrate techniques for presenting an antitrust compliance program to Corporate management and the» audience will receive examples of actual instructions which corporations use. The Institute will then explore the responsibilities of Counsel when actual antitrust problems are discovered in the client company. Finally, it will explore techniques for minimizing damage exposure and costs when public and private litigation develops. At various points in the program, panels of antitrust experts, drawn from both the government and private bars, will comment on the possible solutions to the antitrust compliance, correction, and containment problems which have been presented during the live demonstrations. Panelists and speakers will also present their individual viewpoints and suggestions on such topics as the appropriate coverage and execution of antitrust compliance programs, the proper roles of inside and outside Counsel, the obligation to report possible antitrust violations to the Antitrust Division and to the investing public, and specific techniques by which Corporate Counsel can manage complex and multiple antitrust lawsuits.
Sally Gunz - One of the best experts on this subject based on the ideXlab platform.
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Ethical Decision Making and the Employed Lawyer
Journal of Business Ethics, 2007Co-Authors: Sally Gunz, Hugh GunzAbstract:This article addresses one of the more disturbing questions raised by the major financial failures of the recent past; namely, how it could be that professionals, highly trained both in ethics and technical disciplines, should apparently collude with management in Corporate misbehaviour. The article builds on evidence suggesting that professionals in employment contexts find ways of adapting in order to minimise perceived or actual conflict between their professional and organizational obligations and that this, in turn, may affect the way in which they exercise professional judgment. It uses identity theory to propose that professionals may adopt modified identities when employed and that these identities may be expressed, in part, in the way in which they resolve ethical dilemmas. The article reports on the results of a qualitative study in which Corporate Counsel showed evidence of adopting these identities. The findings suggest that this line of research offers insight into a far more complex world of employed professionals than that traditionally hypothesised and that the popular approach of regulators and others to monitoring Corporate governance by appointing professionals as gate-keepers within the organization is perhaps problematic.
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Hired professional to hired gun: An identity theory approach to understanding the ethical behaviour of professionals in non-professional organizations
Human Relations, 2007Co-Authors: Hugh Gunz, Sally GunzAbstract:Most recent major financial scandals have come about with the assistance, tacit or active, of highly trained professionals whose ethical responsibilities were thereby violated. This article addresses the question of why this might happen. It argues that the problem may lie in the adoption of a common prescription, namely that to be effective, in-house lawyers need to be part of the corporation's strategic decision-making process. But, paradoxically, in so doing, the lawyers' identities might become modified such that the approach they take to handling ethical dilemmas becomes more like that of their non-lawyer colleagues, thus losing some of the benefits of their professionalism. The results of a postal survey of Canadian Corporate Counsel provide supporting evidence for this conclusion.
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The role of Corporate Counsel in the new governance model: sound policy or another quick fix?
International Journal of Business Governance and Ethics, 2004Co-Authors: Hugh Gunz, Sally Gunz, Robert V.a. JonesAbstract:The role of Corporate Counsel in the Corporate governance process has been long overlooked. This paper uses recent comments by Breeden as the springboard for a discussion of the issues surrounding significant roles for lawyers in corporations. It considers these both from a practical and a theoretical perspective and identifies why it is problematic merely to assume hiring lawyers will ensure good compliance both in terms of legal and ethical obligations.
Gary P. Poon - One of the best experts on this subject based on the ideXlab platform.
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The Corporate Counsel's Guide to Mediation
2011Co-Authors: Gary P. PoonAbstract:This book is designed to help Corporate Counsel successfully settle commercial disputes through mediation. It examines the unique role that Corporate Counsel can play in mediation and offers step-by-step guidance. Topics include: an overview of the mediation alternative for Corporate Counsel; drafting mediation clauses; court-directed mediations; selecting the right mediator; preparing a case for mediation; participating in the mediation sessions; follow-up action after the mediation; and cross-cultural mediations.
