Law And Order Case Analysis

In one of Law & Order’s “ripped from the headlines” episodes titled “House Counsel,” a juror in a mob trial is found dead. Law enforcement investigates and learns that the mobster tampered with the juror in order to avoid a conviction and then killed him to keep him quiet. The lawyer defending the mobster is a good friend of Assistant District Attorney Jack McCoy. Later in the investigation, McCoy discovers that his friend may have played a role in the jury tampering. When he suspects his friend is involved, McCoy sees an opportunity to get the mobster and prosecutes the attorney for the murder to leverage information about the mobster. In the end, the lawyer is convicted and the attorney-client privilege between the lawyer and the mobster is dissolved.

In the case that allegedly inspired the episode, prosecutors moved to remove a mobster’s attorneys from a case because there was evidence that the attorneys knew the crimes would be committed. Therefore, the attorneys could be called as witnesses. Prosecutors contended that the attorneys were in fact “house counsel” for the mob. The attorneys were removed.

Law & Order, meet the modern in-house banking counsel. Since 2008, the banking industry has been under particularly close scrutiny by regulators and law enforcement. The added scrutiny is resulting in increasing enforcement actions against the banks. As part of recent enforcement actions in other industries, law enforcement and regulators have taken actions against the in-house counsel personally.

An effective way to mitigate the risk to in-house counsel is to retain outside counsel to deal with subpoenas and investigations, and work with in-house counsel on responses to formal and even some informal governme...

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...the attorney to reveal privileged information “to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services,” this may result in the creation of an uncomfortable work environment. So, some prosecutors and regulators may ask, is the in-house counsel really independent?

Given the difficulty in navigating these unique challenges, in-house counsel have been increasingly targeted as part of governmental investigations and regulatory actions. This is especially true in cases where the government believes the in-house counsel was not acting as an attorney and can provide useful information against the client. In Part II, we will look at some of these examples.