Role of the General Counsel InfoPAK

Updated May 2005

Provided by the Association of Corporate Counsel
1025 Connecticut Avenue, Suite 200
Washington, D.C. 20036
Tel 202.293.4103
Fax 202.293.4107
www.acca.com

The purpose of this InfoPAK^SM is to provide some definition of the role, scope and nature of the duties of a general counsel in a post-Enron, Sarbanes-Oxley world. By noting some of the issues that arise in the ordinary course of an in-house counselÕs practice, this InfoPAK will help general counsels provide high-quality representation for their corporate client. This InfoPAK should not be construed as legal advice or legal opinion on specific facts or representative of the views of ACC or any of its lawyers unless so stated. This InfoPAK is not intended as a definitive statement on the subject of general counsels but a resource that provides practical information for the reader. We hope that you find this material useful. Thank you for contacting the Association of Corporate Counsel.

ACC wishes to acknowledge the following for their contribution to the development of this InfoPAK:

Ellen R. Dunkin, General Counsel, Risk and Insurance Management Society, Inc.
James A. Woehlke, Legal Counsel, New York State Society of CPA's
&
West Group, for its generous contribution of research resources.

Table Of Contents

1. Introduction: The Function of a General Counsel
   1. General Overview
   2. Road Map


2. The Corporation as a Client
   1. Duty to Client
      1. Corporate Affiliates
      2. What happens when a general counselÕs best judgment differs from that of corporate management?
      3. Contest for Control of the Corporation by Takeover
      4. Derivative Litigation
      5. Dual Representation of Corporation and one or more Directors, Officers, Employees, or Agents.
   2. Confidentiality
   3. Client Focus


3. Corporate Compliance and Security
   1. Ethical Duties
      1. Non-legal business activities
      2. General CounselÕs Role as Legal Adviser
      3. General Counsel as Advocate
      4. General Counsel as Director
      5. General Counsel as Media Liaison
      6. Conflict of Law
      7. Individual Rights and Liabilities of Corporate Counsel
      8. Post Enron: Expanded Ethics Role of General Counsel under the Sarbanes-Oxley Act
      9. General Counsel Licensing and Multijurisdictional
      10. Examples of General Counsel Violations
   2. Forms Š Compliance Plans and Policies for your Company


4. Record Retention Policies


5. Reporting Structure
   1. To Whom should the General Counsel Report?
   2. Benefits of Reporting to Certain People
   3. Additional Resources


6. Internal Legal Department Structure
   1. Different Models
   2. Legal Recruitment and Staffing
   3. Developing & Maintaining Good Working Relationships


7. Controlling Legal Spending
   1. Cost Control
   2. Compensation of Lawyers
   3. Billing
      1. Task-Based Billing
      2. Alternative Billing Arrangements
   4. Financial Reporting


8. Risk Identification and Assessment
   1. Developing a Risk Assessment Plan
   2. The Risk Management Team
   3. General Counsel as Risk Manager
   4. How to Achieve Excellence in Risk Management?


9. Crisis Management
   1. Internal Investigations
   2. Grand Jury Investigations


10. Litigation


11. Outside Counsel Management
    1. The Selection Process
       1. Should Outside Counsel be Hired for this Particular Matter?
       2. Which Outside Counsel Should be Retained?
       3. The Interview Process
       4. The Engagement Letter
    2. Building a Long-Lasting Partnership with Outside Counsel
    3. Strategies for Effectively Managing Outside Counsel
    4. Strategies for Monitoring and Reducing Outside Counsel Spending
       1. Case Management Systems
       2. Convergence Projects


12. Sample Form and Policy


13. Additional Resources


14. Article: Benjamin W. Heineman, Jr., The Ideal Of ŌThe Lawyer-StatesmanÕ, ACC Docket 22, no. 5 (May 2004) : 58-67, http://www.acca.com/protected/pubs/docket/may04/ideal.pdf