Indispensable Counsel The Chief Legal Officer

Legislation and case law following the relatively recent corporate scandals have increased scrutiny on the ethics and integrity of individuals, and the culture they create, at the highest levels within the corporate structure. The corporate General Counsel (GC) is a key member of that group. This enhanced attention increases the already substantial tensions facing the GC, who must navigate the demands and interests of various corporate stakeholders-including the board of directors, officers (particularly the CEO), stockholders, and employees-while also serving the best interests of the client, which is-and should only be-the corporation itself. In light of these heightened expectations on ethics, integrity, and other liability concerns,Indispensable Counsel: The Chief Legal Officer in the New Realityexamines the key role of the independent, yet business-oriented, chief legal officer.Indispensable Counselprovides readers with the foundations of corporate representation followed by practical guidelines on how the multiple roles of GC are, or should be, resolved, with best practices as the goal. Former Supreme Court Justice of Delaware E. Norman Veasey and coauthor Christine T. Di Guglielmo bring their stature and wealth of experience in the field to bare in this must-have resource for anyone interested in the role of corporate counsel.

E. Norman Veasey is a senior partner at Weil, Gotshal & Manges. In addition to other roles in the firm, he advises on corporate governance issues involving the responsibilities of corporate directors. Mr. Veasey is the former Chief Justice of the Delaware Supreme Court, stepping down in 2004, after serving a 12-year term. His tenure as CJ was preceded by 34 years as a corporate practitioner and litigator.

Christine T. Di Guglielmo is an associate at Weil, Gotshal & Manges, practicing in the Delaware office. Her practice concentrates on corporate and litigation matters. She is a graduate of the University of Pennsylvania Law School (summa cum laude), where she served as executive editor of The University of Pennsylvania Law Review. Ms. Di Guglielmo was a judicial law clerk for Chief Justice Veasey during the 2003-04 term.

About the Authors	p. ix
Acknowledgments	p. xiii
Foreword	p. xv
Foreword	p. xix
Preface	p. xxiii
Introduction	p. xxv
Who Is "The" Chief Legal Officer?	p. xxvii
Who Is the Intended Audience?	p. xxviii
The General Counsel's Challenges in the New Reality	p. 1
The Landscape	p. 1
Key Characteristics of the General Counsel Position	p. 6
The "Interesting" Aspect	p. 7
The "Multifaceted" Aspect	p. 7
The "Lonely" Aspect	p. 9
The "Perilous" Aspect	p. 10
Dealing with the New Reality	p. 14
New Laws and Prescriptive Regulatory Attitudes	p. 14
The Dodd-Frank Act of 2010 and Its Impact on Corporate Governance	p. 15
Whistleblower Incentives and Protection	p. 20
Incentives	p. 20
Protection from Retaliation	p. 21
Expansions of the Sarbanes-Oxley Act	p. 22
Implications of the Whistleblower Provisions	p. 22
New Challenges Beyond the Horizon	p. 24
Key Takeaways for the General Counsel's Challenges in the New Reality	p. 25
Evolution of the Role of General Counsel	p. 27
Historical Perspective	p. 28
Modern Reality	p. 30
Key Takeaways on the Evolution of the Role of General Counsel	p. 33
The General Counsel on the Balance Beam	p. 35
The Many Hats Worn by the Modern General Counsel	p. 39
The Lonely Middle: Relationships with Senior Management and the Board	p. 46
Independence and Courage	p. 46
Hiring, Firing, and Reporting Lines	p. 54
Financial Dependence on a Single Client	p. 56
Partnering with the Management Team	p. 59
The CLO's Relationships with Senior Management	p. 59
The General Counsel as Business Partner	p. 61
Bridging the Gap: The General Counsel and the Board	p. 68
The CLO's Relationships with the Board and Board Committees	p. 68
Director Confidentiality and Candor	p. 76
Minutes, Records, and Notes	p. 78
Board and Committee Minutes	p. 78
Director Notes	p. 86
Crossing the Bridge: The General Counsel as Director	p. 87
Other Relationships	p. 90
Relationships with Investors	p. 90
Government Relations	p. 91
Media Relations	p. 93
Key Takeaways for the General Counsel on the Balance Beam	p. 95
The General Counsel Leading the Charge	p. 97
Establishing and Maintaining a Legal and Ethical Culture	p. 97
Ethics and Professional Conduct Rules Governing In-House Counsel	p. 105
State Rules of Professional Conduct	p. 106
SEC Rules for Lawyers Involved in Public Company Filings	p. 109
Demonstrating Openness and Community Involvement	p. 117
Corporate Citizenship	p. 117
Diversity	p. 122
Pro Bono	p. 128
Key Takeaways for the General Counsel in Leading the Ethical Charge	p. 129
Advising the Board on Corporate Law and Other Laws	p. 131
Corporate Law and Corporate Governance Under State Law	p. 131
Introduction	p. 131
Overview of Fiduciary Duty	p. 132
Standards of Conduct and Standards of Liability	p. 137
The Business Judgment Rule	p. 141
Enhanced Scrutiny	p. 145
The CLO's Advice on Other Laws and Issues	p. 147
Other Laws	p. 147
Other Issues	p. 147
Compliance	p. 147
Risk Assessment and Management	p. 148
Crisis Preparation, Management, and Internal Investigation	p. 152
Key Takeaways for the General Counsel in Advising on Corporate Law and Other Issues	p. 157
Managing the Legal Department	p. 159
Need for Adequate Resources	p. 159
Compartmentalization and Decentralization	p. 159
Global Challenges	p. 164
Working Within the Law Department Budget	p. 169
Keeping Work In-House	p. 171
Managing Outside Costs	p. 173
New Fee Structure Models	p. 177
Convergence	p. 177
Alternative Fee Arrangements	p. 179
Outsourcing and Offshoring	p. 182
Increasing Recoveries	p. 184
Litigation Financing	p. 186
Choosing Outside Counsel	p. 187
Key Takeaways for the General Counsel in Managing the Legal Department	p. 189
The General Counsel in the Crosshairs: Exposure to Sanctions, Prosecution, and Liability	p. 191
Conceptualizing the Role: The General Counsel as Advocate, Gatekeeper, or Persuasive Counselor	p. 192
Reporting up and Reporting out	p. 200
Understanding the Risks: Types of Liability Exposure Confronting In-House Counsel	p. 204
SEC Enforcement	p. 204
Prosecution	p. 206
Fiduciary Duty Liability	p. 210
Key Takeaways for Mitigating the Risk of Liability and Sanctions	p. 214
Conclusion	p. 217
Table of Contents of The Corporate Director's Guidebook (6th ed. 2011)	p. 219
Table of Contents of Stephen A. Radin, The Business Judgment Rule (6th ed. 2009)	p. 223
Index	p. 245
Table of Contents provided by Ingram. All Rights Reserved.

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Indispensable Counsel The Chief Legal Officer in the New Reality

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