Wednesday, August 10, 2016

OCG "Shark" Week: "Double Indemnity"



"We're going to need a bigger blog!" (Too much? Well, you hopefully knew what you were signing up for when you signed up for these updates...)

Regardless, we continue our journey this week with: "Indemnity Provisions in Outside Counsel Guidelines: A Tale of Unintended Consequences" published by the ABA (full text to members), written by Anthony E. Davis and Noah D. Fiedler, partners in the Lawyers for the Profession group at Hinshaw & Culbertson LLP.
  • "The article discuses how client outside counsel guidelines ("OCGs") are taking on increasing significance as more corporate and financial institution clients develop broad forms of OCGs and adopt policies requiring them for all outside counsel engagements. In the article, Mr. Davis and Mr. Fiedler provide an overview of the factors underlying the increase OCGs generally and then discuss how OCGs, and particularly the provisions commonly included in OCGs that require law firms to indemnify clients, actually threaten the professional independence of lawyers and the legal profession as a whole."

Another interesting front on the OCG "discussion" touches on matters related to recent news about internal privilege, see: "N.Y. Court Endorses ‘Intrafirm' Attorney-Client Privilege" --
  • "Many firms that staked out that position did so despite the fact that some of their top clients—large businesses and the in-house lawyers who manage corporate legal budgets—have adamantly opposed efforts to establish the intrafirm privilege."
  • "That new tack, Sarwal said, may involve using “outside counsel guidelines” to require firms to give up the right to shield internal communications that would be privileged under this New York ruling and a string of recent cases from courts in other states."
  • "That suggestion didn't sit well with some lawyers who are designated as their firms' general counsel or have acted in that capacity on an informal basis."
  • "'If that's really what they plan to do that will be very disappointing,' said Brian S. Faughnan, a partner in the Memphis office of Lewis Thomason. 'It's a bit wrong-headed to insist that firms, if they're going to get your business, would have to waive the privilege,' Faughnan told Bloomberg BNA."

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