IN-HOUSE COUNSEL LAST CHANCE ETHICS SEMINAR AND WEBINAR Monday, December 16, 2013
IOWA CLE ACTIVITY INFORMATION Program Name: IN-HOUSE COUNSEL LAST CHANCE ETHICS SEMINAR AND WEBINAR Sponsor: BROWN WINICK LAW FIRM Start Date: 12/16/2013 End Date: 12/16/201 City: DES MOINES Class Type: Live Webcast Total CLE Hours Approved: 2.0 (includes ethics hours) Ethics Hours Approved: 2.0 Activity Number: 120698
NEBRASKA CLE (webinar) ACTIVITY INFORMATION Program Name: IN-HOUSE COUNSEL LAST CHANCE ETHICS SEMINAR AND WEBINAR Sponsor: BROWN WINICK LAW FIRM Start Date: 12/16/2013 End Date: 12/16/201 City: DES MOINES Class Type:WEBINAR Total CLE Hours Approved: 2.0 Prof. Resp. Hours Approved: 2.0 Activity Number: 87042
NEBRASKA CLE (seminar) ACTIVITY INFORMATION Program Name: IN-HOUSE COUNSEL LAST CHANCE ETHICS SEMINAR AND WEBINAR Sponsor: BROWN WINICK LAW FIRM Start Date: 12/16/2013 End Date: 12/16/201 City: DES MOINES Class Type:Regular/Traditional Total CLE Hours Approved: 2.0 Prof. Resp. Hours Approved: 2.0 Activity Number: 86910
Addressing Internal Employee Complaints and Issues Ethically: Review the Role of the Iowa Rules of Professional Conduct in Conducting Internal Investigations and Handling Employee Complaints Rebecca A. Brommel BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-242-2452 Facsimile: 515-242-8552 E-mail: firstname.lastname@example.org
The Role of Counsel • Advisor • Advocate • Negotiator • Evaluator
Attorney as Evaluator • Examine legal affairs • Report about legal affairs to client (the company) or others
Scenario: An employee comes to you with a complaint about being bullied by a supervisor. The supervisor has sent emails containing put-downs, yelled at the employee during meetings with others and made the employee “on edge” for fear of losing her job. The employee wants to keep this quiet and confidential as she fears further retaliation from the supervisor.
Ethical Requirement: Competence Rule 32:1.1: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. • Do you have the required knowledge and skill to conduct an investigation? • Can you conduct a thorough analysis of the factual and legal issues?
Ethical Requirement: Diligence Rule 32:1.3: A lawyer shall act with reasonable diligence and competence in representing a client. • Can you pursue this matter despite opposition, obstruction or personal inconvenience? • Is your work load such that you can handle this investigation competently? • Can you act with reasonable promptness?
Ethical Requirement: Communication Rule 32:1.4: A lawyer shall reasonably consult with client about means by which objectives are to be accomplished, keep the client reasonably informed about status, promptly comply with reasonable requests for information, and consult with client about any limits on lawyer’s assistance with client matter. • Do you need to inform anyone at company regarding the investigation? • Are you already vested with company authority for certain actions and decisions? • Who do you represent? Have you made that clear?
Ethical Requirement: Confidentiality Rule 32:1.6: A lawyer shall not reveal information relating to representation unless client gives consent, the disclosure is impliedly authorized in order to carry out the represented or it fits into one of the limited exceptions (prevention of reasonably certain death or substantial bodily harm, prevent/mitigate/rectify crime or fraud that is reasonably certain to result in substantial injury, etc.) • Who do you represent and thus, whose information are you protecting? • How much information can you give during interviews of witnesses?
Ethical Requirement: Conflicts of Interest Rule 32:1.7: A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. • Who do you represent? (parent – subsidiary – affiliated organization) • Who do you represent? (board of directors – company) • Affirmative duty to disclose when you know or reasonably should know that the organization’s interests are adverse to those of the constituents with whom you are dealing. Rule 32:1.13(f) • Can represent directors, officers, shareholders, employees, members, shareholders or other constituents – subject to this conflict of interest rule. Rule 32:1.13(g)
Ethical Requirement: Organization as Client Rule 32:1.13: (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. • Is the manager acting in violation of a legal obligation or in violation of the law that might be imputed to the organization? • What is the “best interest” of the organization?
Ethical Requirement: Organization as Client (con’t) Rule 32:1.13: Unless lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. • How far “up the chain” do you need to go? • What if those above you do nothing? See Rule 32:1.13(c)
Ethical Requirement: Truthfulness and Honesty Rule 32:4.1: In the course of representation of a client, a lawyer shall not (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by the confidentiality rule. • What can/can’t you say to the witnesses you are interviewing? • What can/can’t you say to the complaining employee?
Ethical Requirement: Truthfulness and Honesty (con’t) Rule 32:8.4: It is professional misconduct for an attorney to… (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; … (g) engage in sexual harassment or other discrimination in the practice of law or knowingly permit staff or agents subject to the lawyer’s discretion and control to do so. • When should the investigation be initiated? • Who is under your direction and control?
General Pointers on Conducting an Ethical Investigation • Be diligent. • Be thorough. • Consider whether you are the right person to conduct the investigation. • Matters can be kept as confidential as possible internally, but do not let that impact your investigation. • Document, document, document. • Communicate clearly, completely and accurately. • Take appropriate action – and get your superiors involved.
An Example of How NOT to Handle an Employee Complaint [YouTube video: Despair, Inc. – The Art of Demotivation: “Addressing Employee Complaints”]
Ethical Issues Regarding Technology in the Workplace Haley R. Van Loon BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-248-6625 Facsimile: 515-248-6626 E-mail: email@example.com
Social Networking Sites • Status updates • Relationship status • Online chatting capabilities • Listing favorites • (books, movies, quotes, hobbies) • Political affiliation • Groups or networks • And the list goes on and on . . .
Different states have given different answers, including: • NO! • Maybe . . . • What a great idea! Social networking allows the judge to better know the community and the community to better know the judge.
Be warned: Being friends with the judge might lead to the judge’s recusal. A judge should never be friends with a witness.
Your company has been sued. Can you ask your assistant to go on Facebook and try to friend the plaintiff?
Rule 32:4.2(a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
“A lawyer may not make a communication prohibited by this rule through the acts of another.” Comment 4 to Rule 32:4.2. “It is professional misconduct for a lawyer to: violate or attempt to violate the Iowa Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” Rule 32:8.4
Since you can’t have your assistant dig for dirt on social media, can you request the following in discovery? • Passwords/access to all of the Plaintiff’s social media accounts. • Copies of all social media posts. • A list of all deletions from social media accounts.
Maybe, but . . . • Relevancy concerns • Overbreadth concerns
My company is involved in litigation and we just got the list of potential jurors – can I research those jurors using social media?
This is a common practice, but there can be issues, including: • privacy concerns; • improper contact with jurors; and • striking jurors for impermissible reasons.
My company was involved in litigation and the judge just ruled against us. I just tweeted some choice words about the judge – was that a bad idea?
Rule 32:8.2 Judicial and Legal Officials • A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office. • A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
Employees’ Online Activity • Employees’ online activity may • Harm employer’s reputation • Disparage managers, co-workers, etc. • Disclose confidential information • Result in vicarious liability • Misuse or waste company assets • Violate FTC guidelines • Otherwise violate company policy or the law • Not limited to work hours or company technology
What’s an Employer to do? • How to deal with employees’ online activity? • Preventative steps • (i.e., monitoring) • Reactive steps • (i.e., discipline or termination)
Employees’ Online Activity Kevin, Thanks for letting us know – hope everything is ok in New York. (cool wand) Cheers, PCD
Responding to Employees’ Online Activity General Rule: At-Will Employment, but . . . • Contractual Limitations
Responding to Employees’Online Activity • Contractual Limitations • Anti-Discrimination/Harassment Laws
Responding to Employees’Online Activity • Contractual Limitations • Anti-Discrimination/Harassment Laws • State or Local Laws
Responding to Employees’Online Activity • Contractual Limitations • Anti-Discrimination/Harassment Laws • State or Local Laws • Retaliation Protections
Responding to Employees’Online Activity • Contractual Limitations • Anti-Discrimination/Harassment Laws • State or Local Laws • Retaliation Protections • Labor Laws
Responding to Employees’Online Activity • Contractual Limitations • Anti-Discrimination/Harassment Laws • State or Local Laws • Retaliation Protections • Labor Laws • Privacy Issues
Responding to Employees’Online Activity • Contractual Limitations • Anti-Discrimination/Harassment Laws • State or Local Laws • Retaliation Protections • Labor Laws • Privacy Issues • Constitutional Issues for Public Employers