The New Corporate Gatekeeper
62 Wayne L. Rev. 29 (2016)
25 Pages Posted: 12 Nov 2016
Date Written: 2016
Regulators and prosecutors are now asking corporations to report any wrongdoing within the organization as quickly and completely as possible. One group increasingly identified with the obligation to report misconduct is corporate counsel. Traditionally, lawyers had no duty to report misconduct by their clients under the attorney-client privilege, but that view has eroded as the government expects attorneys to take on a greater role in identifying violations that can lead to administrative and criminal sanctions against their clients. This Essay looks at how the role of the corporate attorney is moving away from the “wise counselor” model of legal representation and toward that of the whistleblower obliged to disclose information about potential violations by the corporate client or risk being viewed as a participant in the misconduct, subject to civil and criminal sanctions. This presents especially vexing problems for in-house counsel who represent a single client: they may find themselves at great financial risk if the gatekeeping requirement is expanded.
Keywords: Legal ethics; corporate crime; white collar crime
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