Counsel for organizations, whether in-house or retained as needed, must comport with the rules of professional responsibility. This presentation, presented by Jennifer Borek and Lawrence Bluestone (materials created by Kenneth J. Allen) will posit factual scenarios that test the application of these rules for counsel advising clients that engage in government contracting, starting with the duty of confidentiality embodied in ABA Model Rule 1.6(b)(1) (and the many state variants), and its permission to disclose, without client consent, certain conduct. Attorneys will review the creation of the attorney-client privilege in the organizational setting, and what persons comprise those with whom communications are subject to the privilege (the “control group,” “subject matter,” and “Upjohn” tests).
The program will then cover the challenges that FAR 52-203-13 (the Contractor Code for Business Ethics and Conduct) can pose for attorneys, such as contractual requirements to disclose certain information. In particular issue is the following clause that contractors do not have to waive the attorney-client privilege, protections of the work product doctrine, or Fifth Amendment rights ((a)(2). The course will discuss these complicated ethical scenarios in the context of the KBR decisions (796 F.3d 137 (D.C. Cir. 2014)), and remind counsel of the distinctions between the attorney-client privilege and work product doctrine, and the need for giving “corporate Miranda warning” MR 1.13(f) to company personnel whose interests might be in conflict with the organization.
Jennifer Borek is a Partner in the Firm's Jersey City, NJ office. She is the Chair of the Procurement Law, Government Contracts & Bid Protest Litigation Practice Group and a member of the Complex Commercial Litigation, Appellate Law and Class Action Defense Practice Groups as well as the Construction & Engineering Law Industry Group. She argues complex litigation cases in state and federal courts, including the Appellate Division and Third Circuit, before administrative agencies and in arbitrations.
Ms. Borek has managed legal teams from their inception through trial. Her practice focuses on commercial litigation; public procurement litigation; Open Public Records Act litigation; land use, redevelopment and condemnation disputes; commercial lease disputes, environmental matters and construction law claims as well as wrongful termination, discrimination and Fair Labor Standards Act collective actions. She has extensive experience counseling corporate entities regarding public bidding and procurement regulations as well as employment matters.
Lawrence Bluestone is Counsel in the Firm's Jersey City, NJ office and a member of the Appellate, Complex Commercial Litigation, Intellectual Property, Employment Law & Litigation, and Procurement Law, Government Contracts & Bid Protest Litigation Practice Groups.
Mr. Bluestone focuses his practice on complex commercial litigation and appellate law matters on behalf of public and private sector clients, primarily focusing on management of multi-million dollar companies and business disputes.
Very useful discussion and hypos
The two hypotheticals at the end were helpful.