Ethical Issues for Attorneys in Government Contracting

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.

Learning Objectives:

1. Review the ethical rules for attorneys advising clients who engage in government contracting
2. Discuss the Contractor Code for Business Ethics and Conduct, and how this may conflict with attorney ethics
3. Apply the rules to various scenarios