Claims Risks

As in-house counsel continue to juggle their roles between corporate gatekeepers and confidants, they face a host of emerging risks. The passage of new statutes, creation and rejuvenation of regulatory bodies, and the revitalization of existing laws all pose new potential liabilities around compliance and due diligence. Examples include:

• The Dodd-Frank Wall Street Reform and Consumer Protection Act and its '922 whistleblower bounty provision or '1502 requiring disclosure of the source of conflict minerals, the use of which companies are being asked to track. Examples of such minerals are tin, tantalum, gold and tungsten;
• The FTC's privacy protection framework and its Red Flags Rule;
• Mandates from the Patient Protection and Affordable Care Act;
• Amendments to the False Claims Act;
• Modifications to the U.S. Sentencing Guidelines clarifying standards for determining effective compliance programs;
• The multi-agency initiative to increase criminal prosecutions of individuals for violations of the food and drug laws;
• The FDIC's current agenda as to failed banks;
• The Environmental Protection Agency's crackdown on everything from greenhouse gas emissions to oil spills;
• The IRS' launch of 6,000 compensation probes;
• The application of Rule 34 of the Federal Rules of Civil Procedure as it relates to cloud computing and electronically stored information; and
• The application of the Sarbanes-Oxley Act's '1519 prohibiting the destruction or concealment of documents to influence a department or agency of the U.S.

The Old Story Revisited

Notwithstanding the onslaught of new laws and agendas, in-house attorneys continue to be haunted by the traditional ghosts leading to legal malpractice claims, including issuing formal and informal legal opinions, conflicts of interest, anti-trust, compliance, insider trading, confidentiality, attorney-client privilege, unauthorized practice of law, multijurisdictional practice, intellectual property, Web 2.0 (a/k/a social media), shareholder class actions, whistleblower and employment law, internal investigations, government probes, fraud, ' 307 of the Sarbanes-Oxley Act and international issues.