Federal Erosion of Business Civil Liberties

The extent to which the Federal government has criminalized conduct is extra-ordinary. By 1900 there were 165 federal criminal laws. That number had increased to around 2000 by 1970. In 1998 the number had grown to 3,300 and by 2004 to more than 4000.

This is only part of the problem. The Code of Federal Regulations contains many regulations that can be criminally enforced. Estimates are that there are as many as 300,000 criminally enforceable regulations.

So for those of you out there who considered yourself a civil lawyer and only watched Perry Mason for entertainment, think again. You may be closer to being a criminal lawyer than you think.

But you respond, we always gave advice on matters that could result in criminal prosecution—violating various securities rules for example. How about those other 290,000 and 3500 regulations and statutes that posses the potential for criminal sanctions, do you know what they are? More importantly, would you even recognize them if you saw them? Chances are you are thinking no is the answer to both questions.

Perhaps what is even more of a concern, even if you happened to be aware of the potential for a criminal sanction could you confidently give advice to avoid a violation?
We will address that in the next in this series.

-Larry Salibra
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Establishing a Partnership with Your Outside Law Firms- Do You Really Want Your Employer to Hear You Say That?

Recently, members of ACC and Fred Krebs attended the 15th Annual Marketing Partner Forum held by Hildebrandt. I have actually had some contact with that organization having published two articles in their journal, Strategies. These are the folks whose job it is to get you to spend your client’s money on their clients. The articles I wrote for them suggested ways that they might actually provide you with meaningful data so you could make informed choices based on factors that I believe that your clients expected, or at should be expecting—establishing a partnership with the service provider was not one of them.

The article “Memo to Law Firms: Make It A True Partnership”, ACC Docket (April 2008) has questionable validity in the relationship between inside and outside counsel. In future blogs I will examine a number of parameters around this issue which has dominated much of ACC activities since it’s founding—in fact was a large if not pivotal contributor to its founding.

Consider the following: Your Company is in the process of constructing a number of pivotal new manufacturing facilities. The CEO determines that the new facilities are so critical to the company’s success that someone must be hired on staff to oversee the construction. Two candidates immerge as potential choices, both are competent, admirable people and will fit into the corporate culture, but each brings a clear difference in their skills and management technique The first has direct experience in the construction process having had to make real decisions concerning the scheduling of subcontractors and insuring the quality of materials. He proposes to the CEO that he will manage the project by maintaining direct and comprehensive oversight of the contractors, exercising his independent judgment over each critical element of the construction and cost and he expects that the CEO will hold him solely and directly accountable for the success or failure of the projects.

The second candidate does not have the either practical experience or background in construction, but has a degree in business management from a prestigious business school and “construction management experience”. The candidate explains that the management technique he will use will result from his development of a partnership with the contractors, open channels of communication and formal budgeting.
When the CEO questions this candidate concerning how he views his position of accountability in this relationship he answers….

The role between inside and outside counsel has a long and tortured history. In future blogs I will review historical publications (which I have been using to develop an objective model to evaluate in-house counsel’s effectiveness in controlling legal expenses) and my numerous participations in forums sponsored by ACC and other organizations, to explore the complex agendas in the relationship between inside and outside counsel.

-Larry Salibra