Ethical Issues Facing Attorneys in Mergers, Acquisitions and Related Transactions


The panelists use hypothetical situations to address a myriad of ethical dilemmas when dealing with merger and acquisition transactions. Topics addressed include success fees versus hourly billing, Rule 1.7 of the ABA Model Rules of Professional Conduct, Part 205 - the Standards of Professional Conduct for Attorneys and the steps a lawyer should take when faced with an ethical dilemma, noisy withdrawal rules, and a look at where state laws intersect with SEC regulations.


I. Introduction
II. Hypothetical Framework
III. Success Fee Arrangement
        A. Basic Framework
        B. Fiduciary Relationships
        C. Hourly Billing vs. Success Fee
                1. Ethically Bulletproof?
                2. Practical Application
IV. Rule 1.7
V. An SEC Approach
        A. Part 205 Rules: A Practical Walk-Through
        B. What’s a Lawyer to Do?
        C. Noisy Withdrawal Rules
        D. Intersection Between State Laws & SEC Rule
VI. Hypothetical Wrap-Up

Content Provided

The Penn State Dickinson School of Law

Founded in 1834 by Judge John Reed, The Dickinson School of Law is the oldest law school in Pennsylvania and the fifth oldest in the nation. Throughout its history, the law school has trained distinguished graduates who have gone on to become leaders of the bar, of the judiciary, of government, and of business. These alumni include the first secretary of the U.S. Department of Homeland Security, five governors, three U.S. senators, and more than 100 federal, state and county judges and countless prominent lawyers and civic leaders. In 2000, the law school merged with Penn State, one of the country’s premier research universities, and stepped into a new era of legal excellence.

Penn State Dickinson School of Law Center for the Study of Mergers and Acquisitions

The center, headed by Samuel C. Thompson Jr., former director of the UCLA Center for the Study of Mergers and Acquisitions, examines corporate, securities, tax, antitrust, and other legal and economic issues that arise in mergers and acquisitions. An important part of the center’s mission is to sponsor continuing legal education programs addressing these issues.

The Association of the Bar of the City of New York

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.


Speakers / Authors:

Photo of Barry S. Alberts

Barry Alberts
Schiff Hardin LLP

Barry S. Alberts is a litigation partner in the Chicago law firm of Schiff Hardin LLP, where he began practicing following his graduation from the University of Chicago Law School in 1971. Concentrating his practice on general business litigation, he regularly represents corporations, corporate officers and directors, as well as lawyers and law firms, in a wide variety of litigation matters in both federal and state courts. He has represented lawyers and law firms in connection with professional liability claims, including actiona alleging maplpractice, breaches of fiduciary duties and ethical violations, as well as in tort actions alleging lawyers' participation in tax fraud, securities fraud, and violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”).

Mr. Alberts has chaired the Ethics and Professionalism Committee of the American Bar Association's Section of Litigation, as well as havign served as a chair fo the Section of Litigation's Trial Evidence Committee. He is a lecturer in law at the University of Chicago Law School, where he teaches a course o n the law and the ethics governing lawyers titled “The Legal Profession,” and he has been a adjunct professor of law at Northwestern University Law School, where he as taught trial advocacy as well as legal ethics.

In addition to his law degree, Mr. Alberts earned a B.A. cum laude from Miami University in 1968. He is admitted to practice in Illinois and before the U.S. District Court fo the Northern District of Illinois and the U.S. Courts of Appeals for the Second, Sixth, and Seventh Circuits.

Photo of Charles C. Platt

Charles Platt
Wilmer Cutler Pickering Hale and Dorr LLP

Charles C. Platt is a partner with the law firm of Wilmer Cutler Pickering Hale and Dorr LLP in the firm’s Litigation and Controversy and Securities Departments, and the co-chair of the Complex Commercial Litigation Practice Group. He joined the firm in 2003. Mr. Platt is a leading commercial litigator, recognized nationally for his defense work in class action matters for insurance companies and other financial service institutions.

Mr. Platt focuses on defending financial services and insurance companies in complex commercial litigation. He has extensive experience in a wide variety of civil litigation matters, ranging from complex securities and consumer fraud class actions to internal investigations and corporate control contests. He has defended numerous companies in class actions regarding financial and retirement products and services, and has tried cases raising contract, tortious interference, fraudulent conveyance and other commercial issues.

Mr. Platt has recently won several well-publicized class action cases on behalf of major financial services companies, either by prevailing on motions to dismiss and for summary judgment, or by defeating class certification. He is currently representing companies in securities and ERISA class actions, and an asset management company in subprime mortgage litigation. His recent appellate experience includes successful appeals to the Ninth Circuit on class action tolling and the Securities Litigation Uniform Standards Act and Fifth Circuit victories dismissing a “market timing” class action and a major sales practice case.

Mr. Platt received a B.A. from the University of Virginia in 1975 and his J.D. in 1979 from Brooklyn Law School.

Photo of Karen J. Shimp

Karen J. Shimp
U.S. Securities and Exchange Commission

Karen J. Shimp is senior counsel for the U.S. Securities and Exchange Commission.

Ms. Shimp received her B.S. from West Virginia Wesleyan College and her J.D. from Harvard University.

Photo of Simon M. Lorne

Simon Lorne
Millennium Partners, L.P.

Simon M. Lorne is vice chairman and chief legal officer of Millennium Management LLC (New York) with oversight responsibility for the compliance, legal and regulatory, and internal audit functions.

From 1999 to 2004, he was a partner at Munger, Tolles & Olson LLP, which he had rejoined in 1999 after having previously been a partner in that firm. From 1996 to 1999, he was a managing director at Salomon Brothers/Salomon Smith Barney and Citigroup, where he had served in various positions with legal, internal audit and compliance responsibility. From 1993 to 1996, Mr. Lorne was general counsel of the U.S. Securities & Exchange Commission.

Mr. Lorne received his J.D. magna cum laude from the University of Michigan Law School in 1970 and an A.B. cum laude from Occidental College in 1967. He is a co-director of Stanford Law School's Directors' College and serves as an adjunct member of the faculty of the NYU Law School and the NYU Stern School of Business. He also serves on the board of the University of Pennsylvania's Institute of Law and Economics and is a visiting fellow at the University of Oxford's Said School of Business.


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Course Code : 776350
Length : 53min
Recorded Date : 9/26/2008
Format Type : Video

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