Corporate lawyers and corporate governance / Joan Loughrey.

Format:

Book

Author/Creator:

Loughrey, Joan, 1968- author.

Series:

International corporate law and financial market regulation

Language:

English

Subjects (All):

Corporate governance--Law and legislation--Great Britain.

Corporate governance.

Corporate lawyers--Great Britain.

Corporate lawyers.

Corporation law--Great Britain.

Corporation law.

Corporate governance--Law and legislation.

Great Britain.

Physical Description:

1 online resource (xxxiii, 350 pages) : digital, PDF file(s).

Other Title:

Corporate Lawyers & Corporate Governance

Place of Publication:

Cambridge : Cambridge University Press, 2011.

System Details:

text file

PDF

Summary:

This assessment of the corporate governance role of corporate lawyers in the UK analyses the extent to which lawyers can and should act as gatekeepers, counsellors and reputational intermediaries. Focusing on external and in-house lawyers' roles in both dispersed share-ownership and owner-managed companies, Joan Loughrey highlights the conflicts of interest that are endemic in corporate representation and examines how lawyers should respond when corporate agents provide instructions contrary to the company client's interests. She also considers the legitimacy of 'creative compliance', the ethical arguments for and against lawyers prioritising the public interest over their clients' interests, and their exposure to liability if they fail to perform a corporate governance role. Finally, she considers whether the reforms to the legal profession will promote the lawyer's corporate governance role and advances suggestions for reform.

Contents:

1 Introduction 1

The role of corporate lawyers and their firms: the issues 1

The scope of the book 7

Corporate lawyers 7

The large corporate firms 8

Smaller firms 10

In-house lawyers 10

The corporate client 12

Corporate governance 14

The organisation of the book 17

2 The international perspective 19

Introduction 19

The comparative landscape: the United States, Australia and Canada 21

The United States 21

The US Legal profession and corporate scandals 21

A profession under scrutiny 26

The ABA Model Rules 28

The Sarbanes-Oxley Act 2002 29

Australia 30

Canada 35

Extraterritorial regulation of the corporate lawyer 38

Europe and the in-house lawyer 38

The cross-border provision of services and double deontology 41

The global role of UK (and US) corporate lawyers 45

3 The roles of the corporate lawyer 48

Introduction 48

The legal services business 49

The professional role and public service 56

A public-service role? 56

The standard conception of the lawyer's role 62

Zealous advocacy 63

Neutrality 65

Renegotiating the professional role 70

The social functions of the corporate lawyer 70

Counsellor 72

The duty to counsel on ethical issues 73

Counselling respect for the law 75

Gatekeeper 76

Whistle-blower 78

Conclusion 80

4 Identifying the corporate client 82

Introduction 82

Establishing the retainer 83

Express and implied retainers 83

Implying a retainer: relevant factors 86

Identifying the client in owner-managed companies 88

Start-ups 88

Majority shareholders and alter ego companies 89

Minority shareholders 92

Identifying the client in groups 93

The consequences of acting for more than one corporate constituent 96

Conflicts of interest 96

Informed consent 98

The reasonableness of representation - representing joint owners 100

Standing to complain 102

Avoiding conflicts of interest 105

Limited retainers 105

Joint representation and information barriers 106

Confidentiality and privilege 107

Dispersed share-ownership companies 108

Identifying the client 109

Three Rivers (No. 5) and actual authority 109

Section 40 of the Companies Act 2006 and apparent authority 111

Agent acting without authority 112

The effect of the director's assertions of the client's approval 115

Agents possessing authority but acting in breach of duty to the company 117

The lawyer's response to misconduct: who is the client for up-the-line reporting? 118

Conclusion 122

5 The role of the corporate lawyer in intra-corporate litigation 124

Introduction 124

The corporate governance function of the unfair prejudice remedy and the derivative claim 126

The role of the lawyer in unfair prejudice litigation in owner-managed companies 129

Section 994 litigation and the interests of the company 129

Representing the company 133

Representing the majority 134

Present clients and conflicts of interest 135

The company as a past client 137

The minority shareholder as a past client 140

Where the minority shareholder was never a client 140

Problems and possible solutions 141

A fiduciary relationship surviving the end of the retainer 143

The supervisory jurisdiction of the courts 146

The role of the lawyer in the derivative claim 149

Representing the company 150

Representing the company and the alleged wrongdoers 154

Representing the alleged wrongdoers 155

Conclusion 156

6 The corporate lawyer as director 158

Introduction 158

Arguments for lawyers sitting on the board of client companies 159

It promotes the client's interests 159

It promotes the interests of lawyers and their firms 161

Arguments against lawyers sitting on the board of client companies 163

The board's composition and performance and the lawyer-director 163

Conflicts of interest 166

Loss of professional independence 170

Legal professional privilege 173

Conclusion 176

7 The regulation of the corporate lawyer 179

Introduction 179

Civil liability controls: lawyers as reputational intermediaries and gatekeepers 181

Obligations to the client and resulting liabilities 181

An obligation to advise 182

An obligation to report up the line 186

An obligation to withhold assistance 190

Dishonest assistance of breach of fiduciary duty 193

The economic torts 196

Third parties' causes of action 196

Duty of care in tort 198

The economic torts 201

Lawful means conspiracy 207

Inducing breach of contract 208

Legislative controls 209

Disciplinary controls: the SRA Code 211

Refusing assistance 212

The duty to disclose and up-the-line reporting 213

Whistle-blowing 214

The common law 214

Disciplinary controls: the SRA Code 216

Legislative controls 217

Conclusion 220

8 The case against reform 223

Introduction 223

Change is unnecessary 223

The present system of corporate governance is sufficiently strong 223

Reforms should focus on other groups 230

Reform would not work 232

Reputational capital 232

Structural constraints 234

Cognitive bias 236

Reform would undermine legal professional privilege 238

Reform would be too costly 244

Whistle-blowing 244

Disclosure counsel and certification 246

Conclusion 248

9 Reforming the role of the corporate lawyer 249

Addressing fraud 249

Strengthening the gatekeeper role of in-house and external lawyers: up-the-line reporting 249

To whom should lawyers report? 252

Triggering the obligation 253

To whom should the obligation apply? 255

Withdrawal 255

Strengthening the gatekeeper role of in-house lawyers 256

Addressing creative compliance 258

The SRA Code of Conduct and the spirit of the law 258

The proposal is too uncertain 258

The proposal offends against the rule of law 260

The proposal requires lawyers to impose their moral views on the client 261

The proposal could deter legitimate innovation and place lawyers at a competitive disadvantage 262

Lawyers will ignore it 263

Withdrawing legal advice privilege 263

Third-party rights of action 268

Strengthening the counselling role 274

Conclusion 275

10 The reform of the legal profession and the role of the corporate lawyers 276

Introduction 276

Alternative business structures 277

How ABSs might strengthen the lawyer's corporate governance role 279

Privilege 279

Professional values 280

Closing the information and accountability gap 283

Practising to share price 284

How ABSs could undermine the lawyer's corporate governance role 287

Practising to share price 287

Conflicts of interest: MDPs 287

Conflicts of interest: outside-owned firms 289

Innovation 291

Entity regulation 292

Outcomes- and principles-based regulation 294

Risk-based regulation 296

Conclusion 300

11 Conclusion 303.

Notes:

Title from publisher's bibliographic system (viewed on 05 Oct 2015).

Other Format:

Print version:

ISBN:

9780511806360

Access Restriction:

Restricted for use by site license.