To start the first day of the Ethics & Professional Development Committee Midwinter Meeting in Manzanillo, Mexico, Lori Ketcham, Special Ethics Counsel of the National Labor Relations Board, Public Co-Chair, lead the discussion of committee business as committee members nibbled on Manzanillo’s local delectable delights. A highlight included brief discussions about the development of an ethics treatise that would be authored, in large part, by committee members.  James R. LaVaute, Blitman & King, then Section Chair-Elect and now Section Chair, shared preliminary information about the Labor & Employment Section’s annual meeting that will take place November 7-10, 2007 in Philadelphia, Pennsylvania, which promises to be action packed with full day CLE seminars and networking opportunities. Stewart Manela, Arent Fox LLP, and Michael Posner, Posner & Rosen LLP, closed the discussion of committee business with information regarding various opportunities for member involvement in activities such as the Annual ABA Labor & Employment Mock Trial Competition that will take place in various cities across the country in fall 2007 and authoring e-alert articles about “hot topics” affecting the committee.

After committee business wrapped up, four lively presentations ensued.

The first presentation, entitled “Unions and Class or Collective Employment Litigation: Ethical Issues and Traps for the Unwary,” was moderated by Mike Posner and featured Paul DeCamp, U.S. Department of Labor; Cara Greene, Outten & Golden, LLP; and Patricia Chavarria Perez, Puente International Consulting, Inc., as panelists. The issues addressed in this presentation centered primarily on the potential dangers of speaking with unrepresented putative class members in both class and collective actions. The panelists also touched on the issues of speaking to unrepresented employees during investigations and the tension that can arise when wage and hour claims are settled by an employer directly with the Department of Labor versus allowing such claims to chart their course through privately instituted litigation.

The second presentation, entitled “Lawyer as Road Warrior: Which Ethics Rules Should I Follow,” featured Scott Drexel, Chief Trial Counsel of the State Bar of California, who was joined by Lori Ketcham and Margaret Luke, National Labor Relations Board, Division of Advice. The panelists addressed the ethical implications of multistate practice, including what conduct constitutes the unauthorized practice of law under state ethics rules, and which state’s ethics rules apply to particular conduct. State ethics rules differ, which requires an attorney to be familiar with the version of M.R. 5.5 (Unauthorized Practice of Law; Multi-jurisdictional Practice of Law) in the host state to which he or she travels, as well as the versions of M.R. 8.5 (Disciplinary Authority; Choice-of-Law) in effect in the licensing jurisdiction(s) as well as the host jurisdiction. 

The third presentation, entitled “Arbitrators Duties When Counsel Are or Are Not Present during Proceedings,” was moderated by Committee Co-Chair Stephanie Padilla and featured Jacquelin F. Drucker, Arbitration Offices of Jacquelin F. Drucker, and Professor Michael Z. Green, Texas Wesleyan University School of Law, as panelists. This presentation focused on the scope of an arbitrator’s duties during an arbitration where one or both of the parties is unrepresented. Some of the issues left open for future debate include whether arbitrators should: (1) encourage unrepresented parties to seek counsel; (2) refuse to hear a case where a party is unrepresented; and (3) educate unrepresented parties regarding evidentiary rules and, if so, how far they should go with such information.

The final presentation of the day, entitled “The Erosion of Employee Rights during Government Investigations: Is the Attorney-Client Privilege Eroding and Does It Need to be Saved?” was moderated by Steven W. Moore, Baker & Hostetler LLP, and featured Matt Lewis, U.S. Department of Justice and David D. Powell, Brownstein Hyatt Farber Schreck, P.C., as panelists.  This presentation focused on the evolution of the privilege standards applicable to criminal investigations of corporations by the Department of Justice leading up to the McNulty Memorandum, which revised the requirements federal prosecutors must fulfill before seeking a waiver of a corporation’s attorney-client privilege during an investigation. Concerns about whether the McNulty Memorandum makes it easier for corporations to front legal fees for their employees and whether the memorandum balances a federal prosecutor’s need to investigate with the corporation’s need to preserve attorney confidences were also discussed.

This article was prepared by Natalie Norfus of Neal Gerber & Eisenberg LLP in Chicago, Illinois.