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New Ethical Requirements: Attorney-Client Privilege and In-House Counsel

By Dianne R. Sagner
April 01, 2004

There are several standard topics that in-house counsel have always watched carefully, such as the subtlety of ethics questions, conflicts, who is considered a client and the standard privilege issues. But times have changed, and the most vigilant may still find themselves in untenable positions. The old mantra for in-house counsel ' watch your back ' has been replaced with the question: “Whose back are you watching?” As we forge ahead, as important as it is to discern who the clients are is telling them and reminding ourselves how we maintain the privilege that is so critical to in-house attorney-client communications.

The highly controversial section 307 of the U.S. Sarbanes-Oxley Act, introduced after the collapse of Enron to appease the public's baying for corporate blood, now has in-house counsel more concerned about their own derriere than that of their employers. Many feel that section has effectively “deputized” the in-house lawyers of publicly listed companies, forcing them to turn in their employer/client to the U.S. Securities and Exchange Commission (SEC).

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