Counsel Conflict Dilemmas in Mergers and Acquisitions

Abstract

This article analyzes an important dilemma that raises liability and ethical concerns: Attorney conflicts of interest in the specialized setting of corporate acquisitions and mergers. The ensuing discussion seeks to present a concrete analysis in conjunction with a recommended framework of attorney conflicts of interest in the publicly-held corporate acquisition context. First, the article will present a general overview of conflicts of interest for the corporate counsel. Second, these conflicts issues will be addressed in the corporate takeover setting, followed by an examination of such conflicts in parent-subsidiary mergers and leveraged buyouts in which incumbent management obtains a substantial equity interest in the entity. Third, the article will focus on counsel's conflicts of interest in the corporate acquisition context when advising committees of the board of directors. Thereafter, the substantive impact of various procedural mechanisms will be explored.

Keywords: Mergers, Acquisitions, Conflicts of Interest, Corporate counsel, Constitutional Law, Professional Ethics, Model Rules of Professional Conduct