Representing Closely Held Entities: Conflicts of Interest and Fiduciary Duty to a Company and its Principals

Documenting Corporate Authority; Avoiding Pitfalls When a Dispute Arises; Implied Attorney-Client Relationships; ABA Model Rules

A live 90-minute CLE webinar with interactive Q&A


Thursday, September 28, 2017 (in 6 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This CLE webinar will examine practical, legal, and ethical issues confronting counsel when representing a closely held entity, including potential conflicts of interest and fiduciary duties owed to the company and its shareholders, members, officers or directors. The panel will also discuss best practices for handling disputes between principals and guidance provided in the ABA Model Rules of Professional Conduct (the ABA Rules).

Description

When counsel represents a closely held entity (a corporation, LLC or partnership in which there are a small number of owners and a substantial overlap between ownership and management), it can be difficult to discern whether conflicts of interest exist or where a fiduciary duty is owed.

Corporate counsel’s first duty is to the company, but principals who retain counsel may view that attorney as their own. Counsel must clearly understand who is authorized to take action (instruct counsel) for the company and confirm that necessary board actions and other corporate formalities are followed.

Even after counsel has delineated the scope of representation, intracompany disputes may change the dynamic. Practitioners must continually identify their actual client(s) under an attorney-client relationship, disclose any conflicts of interest to those parties, and obtain a conflict waiver if appropriate. Adopted in some form in most states, the ABA Rules are instructive in that regard.

Listen as our authoritative panel discusses the potential pitfalls of representing a closely held entity, including corporate governance and conflicts concerns when representing a company and its principals. The panel will also examine the ABA Rules and how they might apply in certain fact scenarios.

Outline

  1. Identifying the client—corporation/company vs. members, shareholders, officers, directors
  2. Engagement letters—importance of disclosure and acknowledgement of representation
  3. Documenting “duly authorized” officers
  4. Observing corporate formalities
  5. ABA Model Rules of Professional Conduct
  6. Special circumstances creating a duty to non-client constituents
  7. Best practices when disputes arise between constituents

Benefits

The panel will review these and other key issues:

  • When can counsel represent a corporate entity as well as its constituent shareholders, members, officers or directors?
  • How should counsel respond to actions or instructions from an officer of the entity when counsel does not think the action is in the best interest of the company?
  • When is an attorney-client relationship established under the ABA Rules?
  • What steps should counsel take when a dispute arises between shareholders, officers or directors of a company?

Faculty

Steven B. Fuerst, Partner and Co-chair, Business Divorce Practice
Lowenstein Sandler, Roseland, N.J.

Mr. Fuerst is Co-Chair of the Firm's Business Divorce Practice. He brings substantial experience as a general counsel and business advisor representing closely held business organizations and their owners to his work in a wide array of industries. He is particularly well-versed in mergers and acquisitions and in business divorces. His efforts have included the disposition of assets in many U.S. states as well as numerous countries, including India, China, and Egypt. 

Paula M. Bagger
Law Office of Paula M. Bagger, Boston

Ms. Bagger has significant experience helping clients resolve a broad range of commercial and business disputes. She has tried, arbitrated, and settled business cases of many different types, including claims for breach of contract, fraud, unfair and deceptive business practices, professional malpractice, and shareholder and partner disputes. She is a co-chair of the Business and Commercial Litigation Section of the Boston Bar Association and has written and spoken on issues arising in the representation of small companies and their constitutents, including, Ethical Issues Facing Corporate Counsel in Closely Held Business Disputes.

Heidi A. Nadel, Founder and Principal
Cross Nadel, Boston

With nearly two decades of sophisticated and diverse trial and appellate experience, Ms. Nadel concentrates her practice on civil litigation across a broad spectrum of areas, with a focus on complex commercial and other business disputes, closely-held business and governance litigation, intellectual property, and civil rights litigation, and appeals in all areas of the law. She has represented individual and business clients in federal and state courts, before regulatory commissions and before state administrative tribunals, and in Tribal Court in a wide range of matters. She is often called upon to lead high stakes litigation and bet-the-company cases involving complex factual and legal issues.


Live Webinar

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This webinar is eligible for at least 1.5 general CLE credits.

CLE credits are not available for PR.

*In KS, OH, PA, for more than 1 attendee on the connection you must contact Strafford CLE via email or call 1-800-926-7926 ext. 35 prior to the program for special instructions.


Recordings

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*Only available for attorneys admitted for more than two years. For OH CLE credits, only programs recorded within the current calendar year are eligible - contact the CLE department for verification.

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Ethics Credits

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Customer Reviews

I liked the practicality and thoroughness of the presentation and the handouts.

Barry Jasilli

CVS Caremark

The webinar provided good practical advice.

Peter Bado

Thrivent Financial

The presenter was very articulate and had an excellent command of the topic and provided very thorough handouts.

Theresa Woodruff

Mercury Marine

The speakers were very knowledgeable and I liked that everyone spoke their minds.

Sherry Billings

ConocoPhillips Alaska

I was pleased with the timeliness of the subject matter and the collaborative approach among the presenters.

Caren M. Rempelakis

Iron Mountain

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Corporate Law Advisory Board

Stuart M. Altman

Director, Corporate Legal Investigations

Intel

Mark H. Hain

General Counsel

Assurance America

Michael Hermsen

Partner

Mayer Brown

Matthew A. Karlyn

Partner

Foley & Lardner

Michael J. Missal

Inspector General

Department of Veterans Affairs

G. Thomas Stromberg

Partner

Jenner & Block

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