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Corporate lawyers and corporate governance /
"This assessment of the corporate governance role of corporate lawyers in the UK analyses the extent to which lawyers can and should act as gate-keepers, counsellors and reputational intermediaries. Focusing on external and in-house lawyers' roles in both dispersed share-ownership and owne...
| Clasificación: | Libro Electrónico |
|---|---|
| Autor principal: | |
| Formato: | Electrónico eBook |
| Idioma: | Inglés |
| Publicado: |
Cambridge ; New York :
Cambridge University Press,
2011.
|
| Colección: | International corporate law and financial market regulation.
|
| Temas: | |
| Acceso en línea: | Texto completo |
Tabla de Contenidos:
- Machine generated contents note: 1. Introduction
- The role of corporate lawyers and their firms: the issues
- The scope of the book
- Corporate lawyers
- The large corporate firms
- Smaller firms
- In-house lawyers
- The corporate client
- Corporate governance
- The organisation of the book
- 2. The international perspective
- Introduction
- The comparative landscape: the United States, Australia and Canada
- The United States
- The US Legal profession and corporate scandals
- A profession under scrutiny
- The ABA Model Rules
- The Sarbanes-Oxley Act 2002
- Australia
- Canada
- Extraterritorial regulation of the corporate lawyer
- Europe and the in-house lawyer
- The cross-border provision of services and double deontology
- The global role of UK (and US) corporate lawyers
- 3. The roles of the corporate lawyer
- Introduction
- The legal services business
- The professional role and public service
- A public-service role?
- The standard conception of the lawyer's role
- Zealous advocacy
- Neutrality
- Renegotiating the professional role
- The social functions of the corporate lawyer
- Counsellor
- The duty to counsel on ethical issues
- Counselling respect for the law
- Gatekeeper
- Whistle-blower
- Conclusion
- 4. Identifying the corporate client
- Introduction
- Establishing the retainer
- Express and implied retainers
- Implying a retainer: relevant factors
- Identifying the client in owner-managed companies
- Start-ups
- Majority shareholders and alter ego companies
- Minority shareholders
- Identifying the client in groups
- The consequences of acting for more than one corporate constituent
- Conflicts of interest
- Informed consent
- The reasonableness of representation
- representing joint owners
- Standing to complain
- Avoiding conflicts of interest
- Limited retainers
- Joint representation and information barriers
- Confidentiality and privilege
- Dispersed share-ownership companies
- Identifying the client
- Three Rivers (No. 5) and actual authority
- Section 40 of the Companies Act 2006 and apparent authority
- Agent acting without authority
- The effect of the director's assertions of the client's approval
- Agents possessing authority but acting in breach of duty to the company
- The lawyer's response to misconduct: who is the client for up-the-line reporting?
- Conclusion
- 5. The role of the corporate lawyer in intra-corporate litigation
- Introduction
- The corporate governance function of the unfair prejudice remedy and the derivative claim
- The role of the lawyer in unfair prejudice litigation in owner-managed companies
- Section 994 litigation and the interests of the company
- Representing the company
- Representing the majority
- Present clients and conflicts of interest
- The company as a past client
- The minority shareholder as a past client
- Where the minority shareholder was never a client
- Problems and possible solutions
- A fiduciary relationship surviving the end of the retainer
- The supervisory jurisdiction of the courts
- The role of the lawyer in the derivative claim
- Representing the company
- Representing the company and the alleged wrongdoers
- Representing the alleged wrongdoers
- Conclusion
- 6. The corporate lawyer as director
- Introduction
- Arguments for lawyers sitting on the board of client companies
- It promotes the client's interests
- It promotes the interests of lawyers and their firms
- Arguments against lawyers sitting on the board of client companies
- The board's composition and performance and the lawyer-director
- Conflicts of interest
- Loss of professional independence
- Legal professional privilege
- Conclusion
- 7. The regulation of the corporate lawyer
- Introduction
- Civil liability controls: lawyers as reputational intermediaries and gatekeepers
- Obligations to the client and resulting liabilities
- An obligation to advise
- An obligation to report up the line
- An obligation to withhold assistance
- Dishonest assistance of breach of fiduciary duty
- The economic torts
- Third parties' causes of action
- Duty of care in tort
- The economic torts
- Lawful means conspiracy
- Inducing breach of contract
- Legislative controls
- Disciplinary controls: the SRA Code
- Refusing assistance
- The duty to disclose and up-the-line reporting
- Whistle-blowing
- The common law
- Disciplinary controls: the SRA Code
- Legislative controls
- Conclusion
- 8. The case against reform
- Introduction
- Change is unnecessary
- The present system of corporate governance is sufficiently strong
- Reforms should focus on other groups
- Reform would not work
- Reputational capital
- Structural constraints
- Cognitive bias
- Reform would undermine legal professional privilege
- Reform would be too costly
- Whistle-blowing
- Disclosure counsel and certification
- Conclusion
- 9. Reforming the role of the corporate lawyer
- Addressing fraud
- Strengthening the gatekeeper role of in-house and external lawyers: up-the-line reporting
- To whom should lawyers report?
- Triggering the obligation
- To whom should the obligation apply?
- Withdrawal
- Strengthening the gatekeeper role of in-house lawyers
- Addressing creative compliance
- The SRA Code of Conduct and the spirit of the law
- The proposal is too uncertain
- The proposal offends against the rule of law
- The proposal requires lawyers to impose their moral views on the client
- The proposal could deter legitimate innovation and place lawyers at a competitive disadvantage
- Lawyers will ignore it
- Withdrawing legal advice privilege
- Third-party rights of action
- Strengthening the counselling role
- Conclusion
- 10. The reform of the legal profession and the role of the corporate lawyers
- Introduction
- Alternative business structures
- How ABSs might strengthen the lawyer's corporate governance role
- Privilege
- Professional values
- Closing the information and accountability gap
- Practising to share price
- How ABSs could undermine the lawyer's corporate governance role
- Practising to share price
- Conflicts of interest: MDPs
- Conflicts of interest: outside-owned firms
- Innovation
- Entity regulation
- Outcomes- and principles-based regulation
- Risk-based regulation
- Conclusion
- 11. Conclusion.