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Representing the Corporate Executive
As a result of the Seaboard Release (SEC, 2001) and the Thompson Memorandum (see p. 1), potential conflicts in representing both a corporation and its officers and executive employees have become more frequent. The corporation, in order to avoid prosecution and limit its exposure to civil damages, must promptly conduct an internal investigation and turn over the results of that investigation to the appropriate governmental agency as soon as possible. This may not be the best way to defend executives exposed to criminal liability.
Anticipating the Need for Separate Counsel
Just as it is too late to buy fire insurance after the house has burned, it is often too late for executives to secure certain contractual rights once an investigation has begun. But the corporation may be more willing to enter into employment agreements and/or Corporate By-Laws or company policies that will provide for those rights and privileges in advance.
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