On demand 1h 2m 44s Intermediate

Ethics Traps for the Unwary - Government Contracts Edition

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Ethics Traps for the Unwary - Government Contracts Edition

Federal requirements, unique processes and, in general, dealings with the United States government as a sovereign actor in connection with U.S. federal procurement matters can put government contracts attorneys in difficult positions when advising clients.The post-pandemic rise of remote and hybrid work has only exacerbated issues in some of these areas. This course explores common ethical issues faced by government contracts lawyers and suggest strategies for mitigating risk of noncompliance. Through exploration of commonly occurring factual scenarios, we will assess the potential ethical issue(s), analyze relevant Model Rules guidance, and discuss best practices for how to handle these situations when they arise. As is evident, for some of these matters there is no “one size fits all" approach, but careful attention on the front end to potential ethical challenges is essential.

Transcript

Hello everyone. My name is Eric Leonard and I'm here today to teach a presentation for Quimbee. Ethics traps for the unwary. Government Contracts Edition is our title, and I welcome you and look forward to spending the next hour walking through some issues that, as a government contracts attorney, we run into on a fairly regular basis. And I'm hoping through, through this discussion to at least start to, you know, flag particular situations that could raise ethical challenges. And as we go through, we'll walk through primarily the model rules that are relevant to each of these areas. But, you know, as a heads up, remember, in the world of ethics, of course, it's not just the model rules that are going to govern. You're going to always want to check your local rules to make sure there aren't any specific local state rules or any specific rules that deal with any of these issues that we talk about. But I'm going to be talking about it from the perspective of a government contracts lawyer. I'm a partner at Wiley Rein in Washington, D.C. I've been there for about 26 years now. And throughout those years, you know, we've run into, you know, a fairly fair amount of issues that I'll call our ethical issues that are government contracts, specific ones. And I thought it might be helpful for practitioners and folks that work in this somewhat somewhat insular, but very broad, if you will, in some ways, world of government contracts law to have a presentation where we can talk through those issues and, and how to navigate them and mitigate any kind of risk when it comes to ethical issues. So with that, I'm going to get started now. And if you have any questions, please feel free to raise them. I'm happy to answer them. I'll either answer them as they come in or at the end of the presentation, just depending on on the flow and the nature of the question. So with that, let's get started. So as a roadmap, as I mentioned, what we're really trying to do here is at a high level, talk about ethical issues that arise as government contracts practitioner, but also, as we were putting this together, I wanted to touch on some more recent developments and areas of ethical challenges that are arising in the context of what I'll call sort of the new normal of the post-pandemic practice of law. And I raised some of these issues, sort of with a government contracts twist, because these are not specific to practicing government contract law, things like remote work and, you know, protection of confidentiality and, and issues that that are raised by those sort of new, again, new ways that we operate as lawyers. But, you know, the good news is that there are some, you know, we'll walk through them, but there are some recent guidance that that come out with the ABA to deal with some of these issues. They, as you can imagine, become very fact specific. But I hope that, you know, and so this will be in the later part of the presentation that we can walk through these and talk about how these issues arise and can be even a little more complicated in the government contracts world, particularly related to information protection, when you have things like protective orders and other types of information limiting requirements in place, and then we'll talk through some recommendations, some mitigation strategies with respect to each one of the situations that arise. But then more broadly, you know, we'll talk about where we, you know, what can you do to ensure that you're not, on the other, the wrong end of a bar complaint or ethics complaint just by by working and operating in the world of government contracts. You know, ethics and government contracts. Am I going to spend a little time on this? Because I think it's important to anyone that works in this space knows that, you know, as a general matter, when you you are whether you're a, you know, in house counsel or an agency lawyer or an outside counsel lawyer, you always have to think about issues in government contracts, at least I do with the baseline that the federal government has set up a system to ensure a level playing field, a level playing field, whether that's a competition for a contract or whether that's your dealings with your counterparts on the on the agency or federal side or and so, you know, there are there is a web of, of ethics and compliance obligations that government contractors are subject to when they choose to do business with the federal government. And you know these and I've listed a couple here, the Procurement Integrity Act, which is an important one in terms of protection of bidding proposal and source selection information. There are sort of these heightened rules on the treatment of sensitive information, you know, other bidders proposals, your proposal, the evaluation record that is done by an agency when deciding on a contract award, very different, obviously, than on the commercial side, where, you know, if there were a competition you may or may not have or, you know, these kinds of restrictions, or if you did, they were going to be applied by contract, not by by federal statute, as you see here, you know, Office of Government Ethics rules. I mean, there's a there's a whole host of government ethics rules that that can impact both lawyers and non-lawyers, quite frankly, in terms of how they operate and what they can and can't do when they leave government service, when there are a government lawyer, when they act as a government lawyer, you know, we have all kinds of rules that also apply to contractors about the hiring of certain former government officials and whether they have to. Be sort of abstain from certain types of participation in certain types of procurement or or decision making. And then you have very broad conflict of interest rules. As I mentioned before, the idea behind federal government contracting is to be operating with a, you know, on a level playing field. And so we have things called organizational conflicts of interest, which are rules that set forth situations where one competitor may have an unfair competitive advantage based on prior work, based on other types of factors. And they may that may eliminate them from from being able to participate in a particular procurement. Just like personal conflicts of interest could could also impact the ability of a company to compete. This could be, you know, whether it's familial or some other, some other connection personally gives, you know, an unfair competitive advantage to one individual. These rules are set are in place to ensure that that there are not these situations arising. And when they or at least when these situations do arise, they are appropriately dealt with. This legal ethics, you know, obviously just more broadly and even within government contracts is is a living area of the law and particularly when it comes to new technologies. And as I said, you know, when you when you factor in things like remote work and, you know, things like protective orders that we're going to talk about in a few minutes, you know, those become a little more complicated when you try to apply them to a stack of documents that you have in your home office or your home living room, or wherever you operate, if you work remotely or hybrid versus, you know, electronic documents that you may have on a secure server at your law firm. I mean, there's there's different sort of twists, if you will, that maybe didn't think about as much when, you know, back in 2018, 2019, before we went to this hybrid or a lot of us have to go to this hybrid working environment. Um, and, you know, there even the unauthorized practice of law is another area that has really kind of at least gotten folks attention in terms of whether if you, you know, like I live in the I work in DC, but I live in Virginia and, you know, does that mean that, you know, I have to be barred in both Virginia and DC in order to avoid unauthorized practice of law? I happen to be barred in Virginia and D.C. and Maryland. But, you know, these issues become a little tricky when, you know, folks started moving out to Arizona or Nevada or, you know, Florida for during the hybrid and pandemic timeframes. What are the what are the bounds? What are the limits in terms of your ability to practice law in a state where you're not admitted? And so I think we saw a real spike in that over, over the last couple of years. I mentioned data security, and I think this is one you're going to see in a lot of discussion examples. We discussed this. This is a real critical area. And I'm not even talking about sort of the broader cybersecurity issues that, you know, are now a big focus of the federal government and some of their proposed rules, but that that factors in in terms of ensuring that wherever you're working, you're you're not putting your data at risk and having that extra layer of security or additional security when you're when you're dealing with materials that are going to be subject to protective orders, just sort of, you know, raises the risk profile even higher. Beyond that, there's also the record keeping challenges in terms of making sure that your documents, whatever you have and, you know, if you're someone that likes to print out paper still, which, you know, I know a lot, a lot of folks I work with that they do. They like that. They like to have the piece of paper in their hand. Where are you keeping it when it comes to, you know, protecting it under the strictures of a protective order or any other data, data restriction, you know, are you dealing with some type of information that may be classified or, you know, or, or lower level for official use only type information? How are you protecting that if you're not keeping it in your office? I mean, there's some good questions. So with that, I'm going to dive right into our first sort of area of discussion. And this comes I mentioned bid protests earlier. And that's a large part of practice I would say of know a lot of government contracts practitioners bid protest is the system set up whereby, you know, after a contract award, an individual can either protest the award, challenge it either at the Government Accountability Office or at the agency level or at the Court of Federal Claims. So there's three different forums. Um, and, you know, it's not uncommon if you have a bid protest to not only have counsel involved in the actual protest, but also to have counsel involved representing the company that would have, you know, the company that actually won the award. We call the intervenor. But, you know, some of the challenges on the bid protest side and anyone that's practiced in this world has probably been through this scenario is you have a client come to you and, you know, they say, well, we didn't win the award. And you ask them why and they don't really know why. And and so there's this process set up whereby the government gives a debriefing and, you know, provides information as to why a company didn't win the award. And you'll see those range in, in, you know, in terms of, you know, the method, the level of information provided, sometimes you don't get a lot of information. And and so the question becomes what? You know from an ethical standpoint, what's your obligation. What how much information is too little information to file a protest. And by their nature, protest allegations are going to be somewhat speculative because you're making it out, you know, an allegation as to why the agency didn't award the contract properly. Maybe they're claiming they violated a particular statute or regulation. Simply, you know, engage in unfair treatment of your client or disparate treatment of some of some kind, but you don't have the full record in front of you. You don't have the evaluation record. You don't have all the information that the agency may have relied on and or how they evaluated it when you're filing the protest. So the question becomes, what are your obligations as an advocate to ensure that what you're putting forth is meritorious? Well, looking at the model rules, rule 3.1 has a section on meritorious claims and contentions. And, you know, there is an obligation to ensure that you're not bringing forth any kind of matter that's frivolous and, and, or at least has a good faith argument for an extension, modification or reversal of existing law. So if you have a protest crown that you know is completely foreclosed by existing law, and you know from research, you can, you know, unless you're advocating some kind of good faith argument for the change or reversal of the existing law, you need to look at this very carefully to make sure you're not putting out a claim. That's going to be a probably just subject to a motion to dismiss right off the bat, and b even worse, perhaps subject you to some kind of claim that you were bringing a frivolous claim right off the bat. At the same time, rule 3.2 is another one to keep in mind in terms of trying to expedite litigation consistent with the interests of the client. So you kind of have to balance these two things, of course. And, you know, I will say in this bid protest world, it's challenging because you get clients that, you know, particularly at the beginning of this process, feel as if they've been wronged and want to find that reason why they're going to they need to file a protest. Sometimes you have to dig a little deeper to see is there is there a factual basis for what they want to argue? So here, as I mentioned, some of the key points to consider, you know, are these truly frivolous? Are they just unpersuasive, right. Based on your available facts? And keep in mind, all your facts can change because the way a protest works is you'll file your protest and then 30, 30 some odd days later, you will get the record. You will get the evaluation record. I mean, you may not get every document depending on your allegations, depending on your claims, but you will get additional information that may shed light on your existing allegations and or provide you a basis to bring additional allegations. So you kind of have to walk that line to figure out, you know, do we have enough to get our arguments in the door? You know, as I said before, make sure it's not foreclosed by controlling authority. But, you know, also make sure too, that you're getting all the facts from your client, because that sometimes is always it can be a little bit of a challenge, even if they're not great facts. You want to know them on the front end, right? In terms of, you know, whether you're you're getting the full picture before you file your protest. As I said before, there is the possibility that the agency counsel may, you know, seek to dismiss the protest and Gao may dismiss the protest, particularly if your allegations are speculative and don't really have any basis in in the current facts to to support them. But you've got to again, look look to where your, your, your facts might be lurking in the protest record. If you think there may be a potential there and you feel like you can make a good faith basis for to make the argument that that's great. Now, you know, I point out this IAP Worldwide Services case. There are some interesting, you know, fact situations where this was a case that was in the Court of federal claims. And what was interesting, this really didn't the the ethical issue in this case really didn't come about as, as in connection with the filing of the protest, but it actually came about as part of the oral argument that was occurring in front of the federal judge at the Court of Federal Claims, and there was a claim that the argument that was being presented, at least in sort of a document form up on the screen, I believe wasn't was misleading. It didn't have all the facts. It didn't have some of the bad facts. That should have been arguably part of the presentation. And the opposing counsel pointed that out. And in the opinion you'll see in a footnote, the judge basically chastises the counsel for saying, you know, you put up a misleading presentation. So, you know, even once you've got your facts and your and you're arguing them, be careful on how you present them, because judges don't like to be, you know, or don't want to like to feel like they're being misled. Okay. Another I mentioned earlier debriefings and I want to touch on on that too, because the briefings are a very, you know, very. Typical occurrence in government contracting, a very government contract specific kind of process whereby after notice of not receiving a contract order or even notice of receiving a contract award, it doesn't matter. It could be either you won this or didn't win it. Companies can request a debriefing in writing and these debriefings. Sometimes they're in person, sometimes they're by phone. Sometimes they're are there written debriefings where the agency just gives you a document that tells you the reasons why they didn't select you. But the whole goal here is for companies to get more information as to why they weren't selected. I mean, as you know, in this world, it can cost millions of dollars to put together a proposal. You know, and I think the system is set up so, so that at least there's going to be some information provided. The role of legal counsel in those debriefings. I mean, I think it varies in terms of, you know, there are some clients that want legal counsel very heavily involved, and there are some that don't want the legal counsel very heavily involved, particularly because without the legal counsel being heavily involved, there's a concern at times that, you know, the debriefing may not be as fulsome if they know your lawyers attending the debriefing are on the call. But I've also seen situations where there is a desire to have a lawyer participate. And the question becomes, well, when you do these debriefings, you know, they're not typically with. They're with an agency official, but they're typically, you know, maybe the contracting officer or maybe some of the folks on the evaluation committee, but they're not typically with a lawyer. So the question is, do you have should you have concerns that you're not your contact or you're having contact with a non-lawyer official that is represented by counsel? And the model rules here. I think these are ones that probably most all of us know at this point, in terms of not communicating about the subject of representation with a person the lawyer knows to be represented by a lawyer in the matter, unless there's consent or otherwise authorized. And, you know, in this world of government contracts, we we as lawyers communicate all the time with contracting officers, with auditors, investigators, you know, sometimes we can communicate with with lawyers, government lawyers. But but other times, many times they're not. It's you know, it's folks that are not acting in their legal capacity, but instead working in a different capacity, protecting the government's interests. And keep in mind, you know, these but these officials, these contract officers, for instance, they all work for agencies and activities that are represented by counsel. So what do you do? What do you do on that? Well, you know, this is an issue where and as I said, you know, it's trickier when it's in person or telephonic versus written debriefing, obviously. Because in a written debriefing you're not going to have those discussions. But at the same time, you know, can you show up if you're the agency, you know, if you're the outside counsel? I mean, I think here it's not always easy to discern if the contracting officer and technical representative is represented by agency counsel. Typically, yes, that's typically going to be the case. And I think it's probably good to assume that. But you may want to ask the questions right. It may ask the questions and let them know that you know you if you work for this company and you're going to bring your outside counsel, let them know and make sure if you're the outside counsel, make sure it's clear if you are on the call and and at least say, well, are you comfortable? Would you like to have your agency counsel also on this call, as opposed to just sort of listening in without anyone knowing? Those are the kinds of things where I think the facts are can be trickier to, to defend. So I think here being up front about what your role is, what your capacity is, what are you going to be on this call or in this meeting. And, you know, is really important so that if the if the contracting official does is represented by counsel and wants to bring their counsel, they have that opportunity to do so. But, you know, I cited there's not a whole lot of case law on on the debriefing side in terms of the ethics issues. But it is this Wilderness Mountain catering decision back in 1998 from Gao. Did did note that there is no statute or regulation that grants a right to have an attorney present for a debriefing, but also doesn't authorize exclusion of an attorney from a debriefing. So, you know, it really does depend on on what your, you know, sort of the facts specific to your particular situation. The other. I mentioned protective orders and I want to talk a little bit about them. These are this is another sort of creature of government contracts. I mean, you see them in other contexts, contexts. Obviously, you can see them in all kinds of federal litigation or even state litigation, potentially. But protective orders are pretty much par for the course for most bid protests. And what it does is it allows the government contracts lawyers to be able to look at information that is sensitive its bidding proposal, information of other clients, other companies that bid on the procurement and the evaluation information and the restrictions are that, you know, you cannot disclose, as an outside counsel cannot disclose that to your client. Now, in-house counsel can get admitted under protective orders. If you can show that you're not involved in competitive decision making, meaning you weren't the one, the lawyer that was helping them make decisions on competitive decisions on the bid and proposal that was submitted. But, you know, typically that could be hard to do. So a lot of times it ends up being the outside counsel that gets admitted. And of course, the client always wants to know, right? What what's going on? What are my arguments? How, you know, what's my likelihood of winning? Um, but the protective order does impose some pretty strict restrictions on what you can disclose. And I cite Model rule 3.4, see here. You know, this is sort of a basic sort of a broader rule in terms of not knowingly disobeying any kind of obligation, the rules of the tribunal, you know, both the Federal Court of Federal Claims and the Gao have pretty detailed rules on, you know, on protective orders and what the limits are. And, you know, it's not just necessarily disclosure of information to your client. These protective orders a lot of times will have limits on things like copies of of information that's, that's covered under the protective order and, and other, you know, sort of restrictions in terms of how the information is being protected. So I think it's really important to look at those carefully. And, you know, we've seen you know, I'll talk about it in a minute. But there certainly are cases out there in situations where prominent government contract lawyers have been sanctioned for failing to comply with protective order obligations. You know, in terms of these kinds of situations. You want to make sure I mentioned this early on that, you know, for for folks that are seeking to get admission under protective order, they have to be be individuals that were not involved in competitive decision making for the client. And, you know, so if you're and you're going to have that person's going to have to make a representation to, to the tribunal that they are not involved in competitive decision making. And if they can't do that, then it's not something that you're going to want to even try to get them admitted under it. But in this situation, like let's take an example, you know, you filed a protest and the CEO wants to know what can I, you know, tell me about the protest. Tell me what my odds are of winning this. I mean, that's the client. You know, the question we get asked all the time, and you know the type of information you can disclose. It's pretty limited. I mean, you will work with agency counsel, typically to come up with what's called a redacted version of your filings, which has information that can be disclosed. But, you know, typically it's got a lot that isn't available. And a lot of times it's it really is the information that, you know, the client wants to see. They really want to see the evaluation. They want to know, you know, all the details. They want to know how they compare to their competitors. Well, that's all the very information. Protective orders are designed not to allow outside counsel to to disclose. So you have to be very diligent about making sure you're following that to a T. And not only that, you're following it, that all the folks that you are working with under the protective order are also following it, whether it's, you know, associates or consultants or, you know, paralegals, all of that. If you're you're signed on their protective order, you have an obligation to ensure that they're all following it. Um, I mentioned this this case here, colonial storage. This is a situation where, you know, denied admission to outside counsel for the awardee, where the that that outside counsel was actually involved in competitive decision making. So it's not it isn't always in-house counsel that can be involved in competitive decision making. You can have an outside counsel doing that. Did some work on a particular procurement. Maybe they called you up and asked you for your opinion about a particular aspect of their proposal. Well, you know, you can you can do that, but that may later on preclude you from being represented, representing that party, because you can't get under the protective order. You know, I mentioned before, the violations of these protective orders are severe consequences for for government contract lawyers and or their clients. So I mentioned here, this is a pretty recent decision where a lawyer at a firm here in D.C. was, you know, sanctioned both by Virginia and by D.C. for failing to sort of quickly and expeditiously raise issues with redactions. Basically, there was a situation where information wasn't redacted that should have been redacted, and that lawyer tried to use it, you know, at least based on these, based on the complaint, try to use it to their advantage instead of bringing it to the attention of, of Gao and, and the other counsel and saying, hey, you know, you probably should have taken out this competitor information or whatever, you know, this protected information that was in there. And so, you know, that subjected this lawyer to to sanctions. I'm not, you know, really I think it was a public reprimand for Virginia, but either way, certainly not something they would want on their record. I also flagged this BWC logistics services company just just to point out that even though it's is extreme and drastic, there are there can be situations where the Gao dismisses your protest as a result of protective order violations. Here, this lawyer accidentally sent protected documents which one of the senior officials at the client not only read, but then forwarded on, I think to another ten people or something. And, you know, the dismissal in this case, Gao recognized this is a drastic, very drastic penalty for for the violation. But ultimately, you know, the procurement was so tainted and the violation was was pretty egregious because it wasn't just, you know, it was not only the lawyer, it was the lawyer, and then it was the client, you know, C-suite. I think it was the CFO or CEO or someone high level at the client. And then it went to a whole bunch of other people. There just wasn't an ability to, you know, to sort of remedy the situation. And therefore they dismissed the protest. So, yeah, rare, rare situation, but certainly something to keep in mind. Okay, I want to shift gears a little bit and talk about some ethics issues that arise, whether, you know, you can have legal ethics conflicts, business conflicts, and we get them all the time in government contracting. Sometimes the line gets a little blurred, I think, between some of the legal and business conflicts. But either way, where I see this come up a lot and is, you know, the situations where a client, you know, you have mergers or acquisitions, spin offs, consolidations, whatever you want to call or joint ventures transaction. They're very common in the world of government contracting. And so sometimes the conflict issues aren't as obvious as as they might be because the client has changed their name or, you know, merged or they've been spun off. And all these can obviously impact your obligations as counsel, whether in-house or outside counsel. You know, prior work is a very common situation where it can give rise to some ethical situations. You know, the even where the works ended years ago, right? I mean, it doesn't it doesn't necessarily get you out of the woods for for potential conflict, you know, put out one situation here to think about where, you know, let's say you have company A engage you to defend against a protest challenge being made by B, but you know, you've you've done prior work for B, can you now represent a, you know in defending the protest if B protests using another counsel? I mean, what is the impact of the prior work you may have done for company B? Well, you know, I think the first question you really got to ask is, is this the same or substantially same or substantially related matter, right. Under rule 1.9? A if this was a real award, you know, of a contract that had been that you had been involved in or advised on previously. Well, you know, I think your red flags should be going up right there, that this is probably, you know, a same or at least substantially related matter to. And you have information that's material adverse to the interests of the former client. Well if that if that's the situation, then you certainly are going to need to get informed consent in writing from both parties to to pursue it. And my guess is company B in that scenario is probably not going to want to give you that consent because you have, you know, have had access to information that they would deem to be potentially that you could potentially use adverse to their interests. Also. 1.9 B you know, this is, again, not knowingly representing a person in the same, substantially same or substantially related matter in which the lawyer was firmly associated, where their material interests are adverse, and about who the lawyers acquired. Information protected by 1.6 and 1.9 C that's material to the matter. So again, a little broader. I mean, if maybe it wasn't the exact same matter. But but you as the lawyer advised them on how to comply with the cost accounting standards and, and all of a sudden that that's, you know, a big issue with, with protest. I mean, well, you may not have thought when you gave that advice that it related to, you know, any kind of bid, protest or challenge or even a particular contract. But, you know, you have to look at it carefully. Is that potentially information that is material to the matter? And therefore, do I need to get informed consent from both parties if I want to pursue it? As I said, there's a lot of stuff to to consider here. Whether, you know, the connection between the old work and the new work, is it a follow on contract, some kind of procurement, you know, was was there? Any information about a that you think potentially could be used adversely in this protest. You know, you have to really carefully think back to what you had previously done and how that could be used here. I mentioned there, you know, there are potentials for using things like advanced waivers, but they do have practical limitations. You may you may be able to have a client sign something that says, you're not going to raise this conflict issue in future litigation. You know, I think it's easier to get those signed and sometimes have them play out in the real world. Or you may have a situation where the client, you know, doesn't want to get involved in this and doesn't want to have to deal with these potential conflict allegations, and therefore they go seek separate counsel. I do mention here this this enterprise services case is an interesting one from a few years back. That was a situation where the counsel for one of the I think it was the intervenor or the it was a protest matter, but one of the counsel raised an issue that the lawyers had previously done work for, for the current, you know, for the company that was protesting and, and therefore, you know, under 1.9 had information that would have been otherwise protected and material adverse to the client. And, you know, the facts weren't great. Having read the decision. But but it was interesting because the Gao said, well, you know, there's been no ethics complaint filed or no bar action in this case. So, you know, if they can represent that, you know, in their protective order that they're not involved in competitive decision making. And I'll take that at face value. And therefore the Gao. Let let the lawyers continue to represent them. But, you know, I don't know if there was eventually a bar action filed or ethics complaint raised, but it was an interesting, interesting case to sort of see how, at least in that circumstance, how Gao dealt with it. But that's not to say it would always be that way. You know, subcontracting is another area where as a government contracts lawyer fine comes up a fair amount. These types of ethical challenges and the situation, the typical situation is you have a, you know, a large prime contractor that maybe you've done business with and you get a call from a subcontractor that says, hey, you know, we're entering into a subcontract with company X, right? And, you know, in this case, I guess it would be company Y who is a firm client. Company X comes to you. They're the smaller company and says, hey, we want your help and helping negotiate some of these terms and conditions. You know, and we don't necessarily need you don't think there's going to be litigation. We don't think it's necessarily material. You know, there's an adverse kind of relationship. We just need advice about what we're taking on in terms of the terms and conditions of the subcontract that company Y is trying to flow down to you, to us, you know, in this circumstance, you know, you're obviously if your firm is also representing company Y, then then you got a problem of direct material adverse negotiating against your, you know, your partner down the hall. But let's assume no one's representing company Y and that there is an access to Company Y's information related to the subcontract. Because if there was, it would be a different analysis. Like the last example. But there is still potential for conflicts. And I think the question of whether you participate in the negotiation can be tricky. You know. So I think Model rule 1.7 makes sure you look at whether there's some kind of concurrent conflict of interest, one that, you know, a situation where the representation of one client will be directly averse to the other, or a significant risk that that your representation will be materially limited. Here in this example, I think you really need to be clear about identifying the parameters up front of what you can and can't do. You know, obviously under you under model rule 1.7 C, you can't represent a client if there if it's going to involve the assertion of a claim by one client against the other. In this case, in the same litigation or other proceeding before a tribunal. So if this, you know, is a litigious situation and you expect that even from the front end, that there's going to be the potential for a fight over a particular, you know, a sort of an allegation of, of failure to comply versus a situation where you're just assessing the terms and conditions. 1.7 C may come into play, and either way, under 1.7 B, you've got to do this analysis to be sure that you feel like you can provide competent and diligent representation to each client, and that there's informed consent confirmed in writing. So you know, here disclosure is the key. You know, whether it's company Y or company X, making sure that you're, you know, getting everyone on board that they're comfortable with and have have confirmed in writing that they consent to the representation. I will say it really varies in terms of how comfortable clients are. I've had situations where, you know, you go to company Y and they're happy that you're helping company X, you know, understand the subcontractor terms and conditions, because they want to make sure that their subcontractor knows what they're doing. And you know, they trust you because you've worked with them before, that you know what you're doing and going to give them good advice. But I've also had situations where company Y will say, well, no, I don't you know, I don't want you to be in a situation where you're giving them advice that could be, you know, put me at a disadvantage or certainly at some point they could use to challenge whether or not a particular term and condition applies to us. So, you know, it's very it's tricky. And you need to on the front end, lay out the the limits of your representation. So maybe you tell company X yes, we can help you, but we can only advise you on the actual terms and conditions, what they mean. And but we can't represent you in any kind of negotiation with company Y as to whether it's appropriate that they apply to you or how they apply to you, whether you complied with them, those kinds of things, and making sure also that if there's a dispute that arises later, how's that going to play out? Are, you know, would you be excluded from that dispute? Or can the parties agree that if there were a dispute later, you would only represent one of the parties? That could be very tricky, particularly if you're exposed to confidential information of both, you know, from both of them in terms of prior representation and the current one. But you certainly, you know, you can try to use an ethical screen. That's another way to deal with this potentially. But there's limits to the effectiveness of of those kinds of ethical screens. But I would say if you are certainly if you're going to. If all the clients agree and you're going to get involved in helping company X, making sure that anyone that worked with company Y is not involved in that is, to me, a no brainer in terms of limiting your liability. Okay. You know, a big another big part of work is government contracts, lawyers, anyone that's done this and involved in it is government audits and investigations. And it's not unusual for federal contractors to find themselves the subject of them. And, you know, these investigations run the gamut, right? They can they can target the company specific employees, consultants, subcontractors, relationships, who knows. And a lot of times on the front end, you don't really know if you're the outside counsel and even the in-house counsel, frankly, where an investigation maybe arose from and where it's going to go. And so, you know, when you're the outside counsel that kind of steps into this investigation, I think there's there's a whole host of potential ethical issues that you need to think about. Um, the first is really defining who's your client, right? And making sure that you're, you're making it clear in the connection of your representation that you represent the organization. And you, you do, you know, work through their duly authorized constituents, but you are representing the company. And I think that's something to continue to tell yourself as you're going through this process. Um, and you know, where, you know, and you can look through 11. 13B and, and G, you know, there are ways to represent also represent other parties like directors, officers and members. But, you know, that kind of dual representation, particularly in these kinds of investigations where you don't really know where it's going to go or who the target might be really tricky, and you can have those situations kind of blow up in your face if you're not careful on the front end about either limiting your representation and maybe saying, well, you know, I'll represent the company. Let's get, you know, a separate group to represent any employees or directors or officers. I mean, that not saying it's not always necessarily required, but at the same time you may want to think about it. So, you know, this is a situation come up with all the time you're working in investigation. Maybe you're just in the front end of looking at documents and figuring out what's going on, and the executive comes to you and says, you know, what do I do to resolve this investigation? Well, you know, this is tricky. And a lot of times, let's even say, for instance, this is the individual at the company that you have a relationship with and that hired you. And, you know, I mean, the first question really becomes, okay, well, is this person, you know, think to yourself, let's make sure they understand, you know, who's that? I'm representing the organization, not them personally. Are they involved in this matter? Are they do they look to be somebody that, you know, may be implicated in the actions that are part of the investigation? Well, I think you want to figure that out pretty quickly. And and if they are, then what does that mean with respect to, you know, their participation, your communications with them? Do you need to make sure under the Upjohn case, which is one that you know, anyone that does these investigations knows very well that you provide any kind of Upjohn warning to make sure that that person understands you are not representing them. You are not giving them legal advice personally. You're representing the company and you know they want to get their own personal legal advice. That's fine. They can do that. But you can't provide that because you're representing the company here. And those interests may diverge very, very quickly. And we've seen it happen in these kinds of investigations. If you think this is a person that you know is asking you information because they want to obstruct the investigation or disrupt it in some way, you probably do have a duty to inform, or you may have a duty certainly under 1.13 B, depending on the situation, to inform others and make sure they understand what's what's going on. But, you know, making sure up front you're reading the question to see is this person asking about what the company should do or what they should do as an individual to protect themselves and making sure that there's a line there. You know, anything that asks about what they want, what they should be doing in their individual capacity, you better. You shouldn't answer that, because otherwise you're going to start going down a path of potentially creating this dual representation in, you know, in a tricky situation. As I said, are they, you know, ask these questions to yourself up front. Is this person potentially involved or are they completely outside the scope of any of the subject matter of the investigation? It can be uncomfortable, right? I mean, obviously, if this is the person that hired you and brought you in and all of a sudden they become part of the potential investigation, it's uncomfortable to deal with, but better off dealing with that level of uncomfortable conversation, then an ethics complaint down the road, or a situation where you lose the entire representation because of a conflict issue that you know, the others in the company weren't aware of, that you created by having this conversation with that wasn't where it wasn't clear who you were representing. I have had this situation come up where, you know, we provide an Upjohn warning where you tell folks that you are not representing them personally, and there's a, you know, sort of a 5 to 6 line spiel from that case. And you know, ask them if they're comfortable proceeding on that basis. And I've had folks say they're not. And, you know, and at that point, you know, terminating the interview is perfectly appropriate and probably the best thing to do so that it's clear, you know, if they if they're not comfortable proceeding on the basis that you're representing the company and not them, terminate the interview, start over and figure out your next steps. Otherwise you go forward. On that basis, you run the risk of potentially creating some kind of dual representation. Okay. So I want to talk a little bit. We talked about confidentiality in the context of protective orders. But I want to talk a little bit about sort of a broader confidentiality obligation. And in this in this example, there are all kinds of socioeconomic preferences in government contracting that you can get, whether you're a small business or an owned small business, small disadvantaged business, veteran owned business. So in this example, you have a contractor that no longer qualifies for the preference that they've been using for years and years to get contracts. And but they're continuing to complete their representations and certifications to the government that says they still qualify. The question is what are your obligations as counsel? I mean, you know that they're they no longer qualify. Can you report them that they no longer, you know, meet the requirements and have certified? You know what, if they ask you to review a proposal that you know, contains a material false certificate, then what do you do with that? Well mean. Model 1.6 A and B talk about the the information and protection of information that, you know, you as a client have an obligation to keep information confidential. Now, there are 1.6 B lays out a number of situations where you know, you can reveal information and you have to look carefully. Are you fitting into any of these you know, these seven. What is it seven different situations where you disclosure is permitted. And I think you just have to carefully look at it in this in this example. Do you have an affirmative obligation to necessarily sort of rat on your client and tell them the government that they're not, you know, no longer qualify for that socioeconomic status? Probably not. You know, you probably don't have an affirmative obligation to disclose. But at the same time, to the extent, you know, your client is submitting a proposal that contains a false statement that you may, you know, have at least certainly a best practice to be informing them of the potential ramifications of that and that they may have their own separate disclosure requirement under what we call the mandatory disclosure rules for government contracting, whereby under for certain criminal violations, if there's credible evidence of certain criminal violations or false claims violations, those can give rise to an affirmative obligation for the contractor to make a disclosure. But, you know, can you disclose the sort of stepping back? Can you can you disclose it? You know, probably not, unless you can fit it into one of the exceptions under 1.6. But I will say that once the client comes to you and says, I want you to, you know, let's say review this proposal and, and shepherd it through and, and sign off on it or whatever, you know, whatever language they want to use. That's where it becomes a little more. You put your start to put yourself in jeopardy. If if you're not, you know, if you are deemed to be signing off on, you know, this, this type of information that has what is a materially false certification. I think at that point, you probably need to inform your clients of your obligations under 1.6 B2 and B3. And if they, you know, if they decide to go forward with it or, and or file a protest or, or file that proposal or submit that proposal with the false certification, you may need to withdraw. That may be a circumstance where your withdrawal is the only option, because at that point, you're otherwise putting yourself in jeopardy as being part of this fraud on the tribunal by through through the submission of a materially false certification. Remember, though, I throw in this case here, this is a 2016 case. You can't file a filing a qui tam action. Not really an option for counsel. I mean, under the False Claims Act, there's a qui tam provision that allows private parties to file their own action alleging fraud and, you know, a wide range of different circumstances alleging fraud. And they get to share in the in the recovery of if there's a settlement or decision or award made. That's not something that, you know, as a, as a counsel. I mean, you would be violating your ethical rules. I don't know how you could manage that by even disclosing that information itself would probably a violation of the ethical rules. And in this case, this Fifth Circuit case made it clear that not not not a good strategy for for outside counsel or any counsel, frankly. Um, all right, let me shift gears for the last ten minutes and talk a little bit about some of these ethical issues related to remote and hybrid work. You know, a lot of these issues are, you know, not, you know, they were always there. I mean, there are folks that always would work and telecommute and, you know, work in different states for, you know, short periods of time. But I think the pandemic really put put a microscope on a lot of these practices. And, and how how often can you work remotely under state bar rules? What additional measures do you need to take if you're working in your home versus an office? Those kinds of things are are out there. And, you know, firms have have responded, at least outside firms. My experience has been they've responded pretty well to, you know, how to manage the risk in this area, but it still falls on you as the lawyer to make sure you're complying with your ethical obligations. Um, mentioning that, you know, first question asked if you're at a firm or a company, what's your firm's business continuity plan and making sure to carry out for remote work? I mean, do you have a VPN? Does your office have a virtual private network that you can use and access, you know, for, for purposes of protecting the data? Make sure again that you're coordinating with whoever your IT folks are. Things stored securely, but but still be accessible. You know I think that's this is going back to the paper example, right. I mean you should you have a stack of, of papers in the living room of your house that are subject to a protective order? No, you shouldn't. So figure out what you're going to do to secure and secure those records, make sure your access points are secure and comply with policies. I mean, we we get cyber training all the time about travel. And whether it's your home or a cafe or a hotel, I mean, you don't let yourself be vulnerable. And I think those situations are popping up more and more now with people not working straight out of the office and straight from the offices, Wi-Fi and systems that are presumably protected or a little, you know, easier to or harder to access by bad individuals. You know, I mentioned, you know, the securing of documents already on the protective order. The other questions are raised are how, when can you can and can't outsource your legal work? I mean, how what are the parameters there? Right? I mean, and, you know, maybe you need to outsource something to someone that's in the office because you're working from home and, you know, whether it's a paralegal or someone that you know you're otherwise supervised. The bottom line here is your ethical obligations to all remain the same, whether you're remote work or in person. None of that changes it. It just enhances the fact that the remote work enhances the attention that needs to be paid to some of these areas. Aba model rule 5.5 A does lay out some parameters on on engaging in unauthorized practice of law. You know, it doesn't prohibit outsourcing, but within there are certain parameters in terms of what you can outsource and what you have to do again, to ensure it's properly supervised and that you're not, you know, engaging in unauthorized practice of law. So I think you're looking at this rule and making sure you fit within those parameters. If you're outsourcing for particular work, fine. You may want to let your client know. I think that's probably a good practice, too, depending on how you're doing the work. And so it's not a shock to them one way or the other. And, you know, keep in mind some of this kind of outsourcing work, sometimes you have work, particularly in the government contracting world where you can't outsource to someone that's outside of the United States. It may be protected under, you know, the International Trafficking in Arms Regulation or some other export control. So, you know, if it's someone even in, even in, you know, Canada or it doesn't have to be, you know, countries that we think are are far, you know, are way, way on the other side of the world. Make sure that people aren't accessing that information in a way that gives you additional liability outside the ethics world. Okay. Aba Formal Opinion 495. This is 2020 lawyers working remotely. The good news here is what basically the ABA is saying. You're not you're not going to be an unauthorized practice of law just by being present in the state where you're not licensed, as long as you're meeting these two elements, right. That first, the local jurisdiction rules are going to probably govern in terms of whether the conduct is unlicensed or unauthorized. And make sure you don't hold yourself out as being licensed to practice in local jurisdiction. You're living in Florida, but you're barred in Virginia. Don't make it, you know, hold yourself out as being a Florida lawyer or advertise as being a Florida lawyer. That's sort of the parameter in terms of, you know, moving toward unauthorized practice. There's also formal opinion 498 should take a look at for virtual practice. Very helpful in terms of kind of reminding lawyers under 1.6 that you have to undertake reasonable efforts to prevent unauthorized disclosure of confidential information. You know, a lot of factors that they kind of lay out in terms of what's reasonable, what are reasonable efforts, right? The sensitivity of the information, the likelihood of disclosure, the cost of employing additional safeguards. Know the other sort of reminder here is be mindful of virtual calls through zoom. This you know who's around you, who can hear you. Where are you doing the call. You know, have you allowed any third party access that breaches the attorney client privilege? You know, for those that are not as comfortable using these products, and I'm probably one of those included, you want to just make sure you're not setting yourself up for some kind of a breach of attorney client privilege. 507 here I won't spend much time on this as office sharing arrangements with other lawyers. You know that whether it's sort of, you know, coming in and using a shared space. Yes. Permissible. But again, you have to make sure you take appropriate measures to comply with any your ethical duties on confidentiality, conflict supervision, making sure that, you know, you're not allowing that information to be accessed by, you know, whether it's other lawyers or other, you know, other folks that come in your office. Consultants. I mean, there's all kinds, you know, outside counsel, there's all kinds of situations where if you're in sort of a more common area, you need to be careful that you're not, you know, giving access to that that allows your information to be exposed. I mentioned the outsourcing of work to persons in other locations, and here we just lay out some of the questions you might want to ask yourself. And I've kind of gone through some of these already, but I will note sometimes I mentioned the fact of the export control example and not exporting information or outsourcing information overseas, but it can also that those considerations can also come up in if you're working on, you know, sort of sensitive type contract information. You know, if you're dealing with sensitive contract information, for instance, you know, if you have a I mentioned here, like a research and development contract with DoD, that requires greater security measures for information that may be different than if you have a commercial item contract where it's, you know, readily all the information about the product, and the contract is sort of readily known in the public. It just may require, if you have this protected information, again, to have sort of additional layers of security, making sure, you know, particularly if, you know, if it's if it's going to be classified information, I mean, we can just look at the news and see what happens if you, you know, allow classified information to sit in your garage or wherever it might be, not not a good thing. And so you may have to institute further security protocols. I mean, that information should never be outside of a skiff anyway. But when you get where I find it's a little trickier. You get some information that is not marked classified, but is marked sensitive for one reason or another. You know, for for official eyes only, that kind of information. What are you doing to protect that? But again, it's all on you to make sure you have appropriate strictures in place. Can you work remotely? Yeah. Again, I walk through the, you know, the ABA guidance. And we've all, you know, lawyers have been doing it now for, for years and even before the pandemic. And yeah, you can do it remotely, but make sure there's not some restrictions that may not that may affect it. Is there a particular restriction in a contract as to where work needs to be performed? I mentioned the classified example, export control. There are a lot of you know, there are factors that you need to consider that are specific to the work, not necessarily the ethical obligation that may affect this. And then you know what? Can you what are the other steps you can maybe take to comply? At the bottom line is, you know, if if you are not, if you are uncomfortable with or maybe just unsure of whether the information that you're moving from a office location or a client site location to your home office, talk to your client, talk to your client and obtain permission from them to work remotely or outsource. You know, the worst thing in the world you can do is have the client be surprised by the fact that, you know, someone broke into your house and took a whole bunch of documents, but they had no idea that you were keeping those documents in your house. Right? Those are the kinds of situations that upfront disclosure, upfront discussions, if you're unsure, are just the best way to go. And they may say no. They may say no. I only want this work done on the client side, and you shouldn't be moving this data. You know, I don't want we can't risk the potential for breach. Find that out on the front end. And if a breach does occur, you may have particular disclosure requirements. And you know, you need to look at your state bar rules. I mean, there's a whole a whole bunch of state bars I know have come up with rules on how to handle a data disclosure, whether it's a cyber attack or or information disclosure that was gained by improper means. Look at those state bar rules to see what those obligations are so that you're, again, mitigating the damages as best you can. All right. Well, with that I'm going to start to wrap up here. And, you know, I hope this has been helpful. You know, working through some of these types of situations and government contract issues and where the ethical issues arise. I mean, I think if anything, you probably see there's no one size fits all to really any of these situations, particularly remote and hybrid work, ethical challenges. But, you know, these issues can arise in some of the trickiest, smallest little situations when you're dealing with government contracts, interaction, particularly with with government council and agency agency officials. And, you know, and I've noted in the bid protest world how that comes up all the time. But but it doesn't you know, it's not necessarily something that's thought of, I think as, as often as maybe it should have in terms of conflicts. I mean, it is a challenging way. Conflicts are challenging to manage picking, maybe picking a horse in a particular area. I mean, I say that kind of at a high level. It might be a way to try to limit the number of bid protests or conflicts that you get, but you know, anyone practicing in this world can tell you that that's very difficult to do. And the bottom line, the last thought that I'll just give is that, you know, I know it's uncomfortable sometimes, but disclosing these conflicts or disclosing questions about how you're going to store the information and take information whether you're insured, if disclosure is required, do it on the front end as best you can, whether it's uncomfortable or not. You know so much better than being the subject of any of these bar complaints that stick around for gosh knows how long in terms of, you know, violations. So with that, I'll leave you. And I hope that this has been a helpful hour to spend. And, you know, to the extent there's any questions or anything comes up, feel free to reach out to me. Thank you again to Quimbee for hosting me. Take care.

Presenter(s)

ELJ
Eric Leonard, JD
Partner
Wiley Rein LLP

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                                                                                                                      November 17, 2025 at 11:59PM HST

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                                                                                                                                    November 24, 2024 at 11:59PM HST

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                                                                                                                                        November 17, 2025 at 11:59PM HST

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                                                                                                                                          Not Eligible
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                                                                                                                                          November 17, 2025 at 11:59PM HST

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                                                                                                                                          Available
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