Ethical Issues Facing Attorneys in Mergers and Acquisitions

Synopsis

Representation of clients involved in merger and acquisition transactions can raise numerous ethical issues for the attorneys involved, none more paramount than loyalty to the client and the attendant commitment to confidentiality. The panelists in this course highlight how these issues have played out in a number of recent cases involving conflicts of interest and attorney-client privilege, discussing the applicable Model Rules of Professional Conduct and federal regulations.



Outline

I. Introduction
   A. Speaker Introductions
   B. Overview
II. Conflicts of Interest
   A. Applicable Rules
      
1. Rules 1.7 and 1.9
       2. Rule 1.7 Example
       3. Rule 1.9: Former Clients
   
B. Rohm & Haas v. Dow Chemical
        1. Dow’s Arguments
        2. Court’s Opinion
        3. Detecting the Conflict
        4. Loyalty and Confidences
        5. Screening and Walls
        6. Confidentiality Agreements 
    
C. Air Products v. Airgas
        1. Facts and Decision
        2. Choice-of-Law Issue
        3. Advance Waiver
III. Privilege
    
A. United States v. Ruehle
        1. Case Background
        2. Ninth Circuit Decision
        3. Frightening Case 
    B. Jordan v. Sprint Nextel
        1. Facts of the Case
        2. Issue and Holdings    
How to Obtain a Certificate



Content Provided
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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 Nathaniel L. Doliner

Nathaniel L. Doliner
Carlton Fields, P.A.

Nathaniel L. Doliner is the Tampa office managing shareholder of Carlton Fields, P.A. Mr. Doliner practices in the areas of mergers and acquisitions, corporate governance, and other aspects of corporate law. He has handled mergers and acquisitions in almost every industry. He is the vice-chair of the Business Law Section of the American Bar Association and Editor-in-Chief of The Business Lawyer. Mr. Doliner is a former chair of the Committee on Negotiated Acquisitions of the Business Law Section of the ABA. He is a member of the Advisory Board of Mergers & Acquisitions Law Report, published weekly by the Bureau of National Affairs (BNA).

Mr. Doliner has lectured frequently at national and international institutes on mergers and acquisitions, corporate governance, and joint ventures, including institutes sponsored by the American Bar Association, Association of Corporate Counsel, Thompson West, The University of Texas School of Law, and the University of Miami School of Law. He is listed in Best Lawyers in America (Corporate Law, Corporate Governance and Compliance Law, Mergers and Acquisitions Law, and Securities Law), and in Chambers USA Guide to America's Leading Lawyers for Business (Mergers and Acquisitions).

Mr. Doliner is a member of the American Law Institute. He graduated in 1970 from The George Washington University and received his law degree in 1973 from Vanderbilt Law School. Mr. Doliner received a Masters of Law degree in taxation from the University of Florida Law School in 1977, and served as a visiting assistant professor of law at the University of Florida Law School from 1977 to 1978.

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.

Photo of Thomas J. Karr

Thomas J. Karr
U.S. Securities and Exchange Commission

Thomas J. Karr is assistant general counsel for litigation and misconduct at the U.S. Securities and Exchange Commission, where he has done a great deal of work related to the 17 C.F.R. Part 205 attorney conduct rules and is also involved in bringing proceedings, where appropriate, against attorneys who commit misconduct while appearing and practicing before the commission.

Mr. Karr earned his A.B. from Harvard University and his J.D. from the University of Virginia. He is admitted to practice in Washington, D.C.

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Details

Course Code : 776437
Release Date : 8/8/2011 12:00:00 AM
Length : 59min
Recorded Date : 10/8/2010
Format Type : Video

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