Ethics In The Legal Department With Ryan Little, Founder Little Legal And Former State Bar Prosecutor [E87]

Summary

Podcast Summary: The Legal Department

Episode 87: "Ethics In The Legal Department With Ryan Little, Founder Little Legal And Former State Bar Prosecutor"

Host: Stacy Bratcher
Guest: Ryan Little (Principal of Little Legal, former State Bar Prosecutor)
Date: February 10, 2026

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Episode Overview

This episode of The Legal Department is a deep dive into the unique ethical issues facing in-house lawyers. Host Stacy Bratcher welcomes Ryan Little, ethics attorney and former state bar prosecutor, for a candid and personal discussion about conflicts of interest, confidentiality, reporting obligations, the Upjohn doctrine, and the evolving expectations for legal professionals who want to be business partners (not just legal cops) within their organizations.

Ryan shares his compelling personal journey—from growing up in an Alabama trailer park and witnessing firsthand the devastating effects of a professional disciplinary process, to building a career as both a bar prosecutor and ethics adviser. The episode is packed with practical advice and memorable stories that will resonate with general counsel, junior in-house lawyers, and anyone navigating the often-blurry line between legal ethics and company politics.

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Key Discussion Points & Insights

1. Ryan Little’s Origin Story & Compassionate Approach (01:10–06:24)

• Ryan shares how his mother’s loss of her nursing license shaped his career:

  • Growing up in a trailer park, Ryan watched his single mother, a nurse, lose her license after a mental health struggle led to a disciplinary action.
  • “She didn’t know… I thought they were there for me...I thought they were looking out for me and wanted to do what was best for me” (04:33, Ryan).
  • Experience inspired him to become a state bar prosecutor and to approach legal ethics with an eye toward rehabilitation rather than punishment.

• Transition to defense and opening his own practice:

  • Ryan now represents lawyers and law firms, helping them prevent and handle regulatory issues — “What I can do is keep you out of trouble with the bar or…I can help you get out of it” (05:31, Ryan).

2. Major Ethical Traps for In-House Counsel (06:27–13:44)

• Most significant issues for in-house lawyers:

  • Conflicts of interest (07:20–13:44):
    • Primary challenge: Understanding who the client is—the entity, not the individual executive.
    • “An in house lawyer represents the entity…They don’t represent John Smith, CEO. And this, this gets really, really tricky…” (08:10, Ryan).
    • Discusses Rule 1.7 (concurrent conflicts) and 1.13 (organization as client).
    • Practical tip: If dual representation (company + executive), “make sure you get a conflict waiver on both sides…fully disclose to both sides what the risks are” (10:18, Ryan).
    • Story: C-suite often assumes “my lawyer” relationship—lawyers must correct this misunderstanding diplomatically.

• When to paper waivers and use outside counsel:

  • “If this whole C suite gets named in a lawsuit, you’re probably hiring outside counseling. That’s a better move generally...” (12:17, Ryan).
  • Give Upjohn warnings to executives even when providing access to outside counsel.

3. Managing Shifting Executive Relationships (13:54–16:14)

• Navigating adversarial transitions:
  • When formerly friendly executives become adverse (e.g., terminations), reaffirm duties to the company:
  • “I have a duty to report these things to my client…I’ve loved working with you, but…just keep that in mind going forward. We can still be friends, but we’re not talking about this anymore.” (15:36, Ryan).

4. Confidentiality and Attorney-Client Privilege in the In-House Context (17:08–22:19)

• Sharing and managing information:
  • Distinction between duty of confidentiality and attorney-client privilege:
    • “The duty of confidentiality is…a personal duty that you owe to your clients…Attorney-client privilege, only legal advice is privileged. Business advice is not.” (19:11, Ryan).
  • Practical risk: GCs who wear multiple hats may be forced to testify against their own client in litigation (20:18–20:22, Stacy/Ryan).
  • “Less is more” for the distribution of sensitive information (21:42, Ryan).

5. Upward and Outward Reporting Obligations (22:19–25:34)

• Reporting up the chain (22:19+):
  • Duty to escalate potentially illegal or harmful conduct as high as needed—sometimes even outside the organization.
  • “You go up the ladder as high as you possibly can and then…in certain jurisdictions…you can disclose…you can or you must [report out]” (24:21–24:34, Ryan).
  • Rules vary by state; always check your state’s Rules of Professional Conduct (25:30, Ryan).
  • Lawyers should call the bar or an ethics specialist if uncertain—some states offer confidential, even “safe harbor” guidance (26:13, Ryan).

6. The Upjohn Warning and Internal Investigations (27:29–31:47)

• Explaining the Upjohn doctrine:
  • “Upjohn” heralds the rule that attorney-client privilege can apply to communications with lower-level employees—not just the “control group.”
  • Best practice: Give clear “Upjohn warnings” during internal investigations—state clearly you represent the company, not the individual.
  • “Make sure that there’s only one note taker…don’t record or have a transcript of the interview; that sort of thing is very often discoverable…” (31:28, Ryan).
  • Reduce notes to a memo promptly; don’t shred hastily (regulatory risk).

7. Multi-State Practice Considerations (31:47–33:31)

• Do in-house attorneys need multiple state licenses?:
  • Most states have allowances for in-house counsel; requirements are state-dependent.
  • “Typically I don’t see in house counsel being licensed in every state…but they do…have their sort of roster of lawyers that they go to…” (32:18, Ryan).
  • Risk management: retain local counsel for nuanced or high-risk matters.

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Notable Quotes & Memorable Moments

• On the importance of recognizing and addressing conflicts:

  • “The fuller the disclosure, the more enforceable the waiver.” (10:31, Ryan)

• On human relationships in the legal department:

  • “That’s the difficult thing about ethics, is that ethics is a little bit like the reasonably prudent person standard in torts…we are supposed to all be these sort of soulless, perfect decision makers, but we’re not.” (15:04, Ryan)

• On privilege & confidentiality:

  • “Only legal advice is privileged, business advice is not.” (19:15, Ryan)
  • “When we’re talking about investigations and Upjohn warnings…it’s kinda like the CEO who’s been fired, that’s your friend…you want to help them frame their narrative. That can bring up issues…” (30:38, Ryan)

• Managing information flow:

  • “Less is more.” (21:42, Ryan)

• On reaching out for help:

  • “If you need an ethics lawyer and I am not licensed in your jurisdiction…get in touch. I can probably refer you to the best person in your state.” (27:17, Ryan)

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Timestamps for Key Segments

• Introduction & Personal Journey: 01:10–06:24
• Major In-House Ethical Issues / Conflicts: 06:27–13:44
• Papering Relationships / Waivers: 09:46–13:44
• Handling Executive Transitions: 13:54–16:14
• Confidentiality & Privilege Deep Dive: 17:08–22:19
• Duty to Report Up & Out: 22:19–25:34
• Getting Ethics Advice / Bar Guidance: 25:55–27:29
• Upjohn Warnings & Internal Investigations: 27:29–31:47
• Multi-State Licensing: 31:47–33:31
• Closing Fun Question (Pump-up Song): 34:03–34:21

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Fun Closing

Ryan’s Pump Up Song:
"Can’t Stop Me Now" by Queen
“Freddie Mercury is the best rock singer of all time.” (34:11, Ryan)

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Resources & Takeaways

• Check your state’s Rules of Professional Conduct for specific duties and reporting requirements.
• Always paper dual representations with robust waivers and disclosures.
• When in doubt, give clear Upjohn warnings and keep privilege analysis in mind.
• Reach out to bar ethics hotlines or specialized counsel as needed—resources exist for nervous or uncertain lawyers.
• Build supportive networks to handle evolving ethical challenges in-house.

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For more on in-house legal ethics and resources, see show notes or TLD Goal Getter on Substack.

Transcript

[A]

My name is Ryan Little. I'm the owner of Little Legal. And a fun fact about me is that I've been a competitive ultimate Frisbee player for 20 years.

[B]

Welcome to the Legal Department, a podcast for lawyers who want to learn, connect, and grow their careers. I'm Stacy Bratcher. I'm a general counsel, and I'm excited to share these conversations to help you level up in house. On today's episode of the Legal Department, I'm excited to welcome Ryan Little, who's the principal of Little Legal, and he's a former state bar prosecutor. We're going to be talking about some ethical issues for in house counsel and how to avoid some footfalls. Ryan, how are you? Great to have you.

[A]

Hey. I'm doing well. Thank you. Thank you, Stacy. It's really a pleasure to be here. I am such a fan and. And I love what you're doing here. Cause in house, lawyers are often overlooked when it comes to the ethical issues that they go through, and. Yeah. So I'm just happy to be a part.

[B]

Yeah. Great. Well, thanks so much. And, you know, I wanted to jump off. I don't usually do a whole, like, career journey.

[A]

Sure.

[B]

Have a very. Like, when we did our prep, I was, you know, my mouth was agape when you said, you know, I grew up in a trailer park in Alabama and ended up as a state bar prosecutor in Hawaii. I think that those are not. I mean, not to make an assumption, but it's not a normal progression to go from what I would assume is sort of poverty in Alabama to living in one of the most expensive and exotic states in the union. So tell us a little bit about.

[A]

Sure. Well, I will say you're correct. As far as I know, I am the only person from my trailer park who went on to be a state park prosecutor. So it does indeed seem to be somewhat uncommon. As you cited. I grew up in Alabama. My mom was a nurse. And this is sort of all going to be intimately related to my career arc. My mom was a nurse, took care of me and my little brother, and she lost her nursing license, and she lost it because she basically, she had a mental breakdown. The stress of single parenting had gotten to her. She hadn't dated much when her. Since her and my dad had gotten divorced. And one day when she was dating somebody for the first time, and one day she found out that that guy had been cheating on her, and. And she basically just fell into a deep depression. And at that time, she was working as a home health nurse, and she started that she went to make a home visit one day at some, you know, late in the evening, say 7pm and she actually went the next day, like 6am she knew that that was wrong. She. It was intentionally dishonest conduct. And her employer reported her to the board of nursing, and the board of nursing prosecuted. And she did not know. She's told me millions of times. You know, I thought they remember her telling me this when I was 14 or 15 and this happened. She said, I thought they were there for me. I thought they, you know, the board said, we think you should consent to revocation of your license. And she was like, I thought they were looking out for me and wanted to do what was best for me. So I said, okay. Then she lost her nursing license. And we instantly went from what I would consider firmly lower middle class to low class. I mean, we, you know, we would be without water for days at a time. We wouldn't have lights quite often. And there was at one point, you know, I was going to quit the football team because I needed to go get a job and work. But for the generosity of many of my teammates, families who actually took up a collection to keep my family from losing our. From getting evicted from our spot in the trailer park, I would have had to. And so I saw, you know, years later, when I was offered the opportunity to take a job as a state bar prosecutor, my first thought was, I wouldn't want to do that. I mean, I don't want to be a narc. And then I really started to think, once I got in the interview, you know, the guy that told my mom she should consent to revocation of her license, he went through an interview just like this, and he had the same amount of discretion that I'm going to have. And it kind of dawned on me that I will have a ton of power over people's lives and I can help prevent from happening what happened to me. I can make sure that the lawyers that I prosecute get the sort of thoughtful, considerate push toward rehabilitation rather than punishment that my mom never did. And it was really weird because the job became intensely personal for me, but in a good way. Not, you know, I take things personal and I'm going to hammer you. But more in a, how many people can we actually help? And I did help quite a few. I got a ton of people into rehabilitation programs and helped a lot of people save their careers. So, yeah, you know, it was a very personal story. That's very much my origin story. A few years ago, I was poached into private practice to join a high end ethics group at a really well regarded west coast firm and got to train with them for a while. And then I went out on my own two years ago. And so now I'm, you know, playing the other side of it. So rather than I'm no longer the prosecutor, I'm not, you know, the one who holds life and death in my hand, so to speak. But what I tell my clients is the, you know, what I can do is keep you out of trouble with the bar or I can help, you know, to the best of my ability, or if you're in trouble, I can help you get out of it. I can help you navigate that process. One of the things that really hurt my mom in her case is that she didn't know that there were lawyers that did professional regulation defense. She didn't know that she could hire a lawyer. I don't know that it would have made a difference.

[B]

Probably a pretty steep climb there. But you're right, like having not even knowing that there are resources. And it's so unfortunate that she was misled to think that that revocation was in her best interest.

[A]

So I don't mean to, I don't know that they told her it was in her best interest. I think she just assumed, well, this is the board of officiating.

[B]

This is what happens.

[A]

And I'm a nurs, so this is what I should do. So anyways, yeah, that's my origin story. And now I represent lawyers and law firms of all types and help them stay out of the ditch.

[B]

Yeah. Well, I'm sure that that experience helps you bring a lot of compassion to your work and thoughtfulness. You're looking at the long game. You're not just, you know, trying to get people out of a jam on the short term.

[A]

So yeah, I definitely think it does.

[B]

So I want to talk about, and thank you for sharing that. It's a really personal story and a, like I said, I really. Your compassion comes through. You know, I think we're a little bit more, at least in California, we're a little more aware of ethical traps because of the Tom Girardi case and

[A]

sort of never heard of him.

[B]

All of the twists and turns that that exposed. And in house lawyers, we all, especially in California, we have to do our cles and there's a big ethical component to that. But I don't know that it's always front of mind. Especially, especially as in house lawyers are really coached and urged to become more, quote, business partners and be business accelerators et cetera. And so I wondered if you could just give us kind of a couple bullet points of what are the big legal issues that ethical issues that in house lawyers need to watch out for?

[A]

Sure. I love the way that you phrase that because it's definitely true. You know, one of the things that I hear a lot from lawyers who go in house is I'm a cost center and they always feel like they are the first one on the chopping block if things go wrong. So I think that does lead people to want to prove themselves and to want to figure out how do I show them a value add to this team and not just look like dead weight in terms of going in house. I think the first conflict that comes up, and I think the most common one that comes up is going to be conflicts of interest. The first ethical issue that comes up is really going to be conflicts of interest. You know, Rule 1.7, the California Rules and of the model, the ABA Model rules, which have been adopted by every state in the nation in some form or fashion, prohibits lawyers from engaging in concurrent conflicts of interest. At the Same time, Rule 1.13, 1.13, allows in house lawyers to represent both the entity and its constituents. Where this comes up all the time is the CEO or the CFO or the CEO or the VP who thinks you are my lawyer. And that's just not the case. An in house lawyer represents the entity they represent. You know, Acme Corp. They don't represent John Smith, CEO. And this, this gets really, really tricky because you're working so closely with the executive team or with the C suite that it often feels as if you are their personal lawyer.

[B]

Well, and they'll say that, by the way. I mean, and it's sort of like it's an endearment and it's, you know, they're sort of, you know, sharing their respect for you, their affinity for you, etc. But you do, you know, have to at times correct that.

[A]

Yeah. And so they all. And yeah, especially when you. I'm sure we'll talk about upjohn issues later on, but yeah, that definitely comes up. It's funny, you know, where this comes up most often and I don't know, I assume you probably have some of this, some of these listeners out there is people who represent organizations like hoas. It comes up all the time because hoas are just these like little microcosms of society that engage in the most petty grievance, political fights. But then so are corporations.

[B]

Yeah, right. Or with multiple subsidiaries or Multiple departments.

[A]

I mean, absolutely.

[B]

There's a lot of political issues, especially the bigger the company.

[A]

So well, and then there's corporate family conflicts. You know, can I represent both the parent company and the subsidiary? And sometimes that's state by state in terms of, you know, how they view those conflicts. And so I think if we're going to to engage in that sort of dual representation because you can represent the constituents, you can represent Acme Corp. And John Smith CEO, but you want to make sure that you paper that relationship the right way. You want to make sure you get a conflict waiver on both sides of the relationship. So one from the corporation, one from the constituent. And you also need to make sure that you fully disclose to both sides what the risks are of that dual representation. And when we're talking about enforceability of a conflict waiver, because this does come up, you want to make sure that you've given a really full and free disclosure. I think the my sort of off the shelf advice for in house lawyers or really anybody who's engaging in the process of drafting a conflict waiver if they don't hire me to do it for them, is the fuller to the disclosure, the more enforceable the waiver. And that's come up a lot in cases across the country. I think most notably in California. I think there's the McDermott case a couple years ago where there was a big conflict waiver that was sort of at the heart of the whole thing.

[B]

Can we talk about an example of when an in house lawyer might be asked to represent the company and one of the constituents?

[A]

Sure. I think there's, you know, I don't know that it's going to come up. Certainly it will come up where you're representing both at the same time. I think what may come up more frequently is the company sort of giving you special dispensation to represent a constituent in a given matter. Maybe you know, CEO is being deposed and you want to make sure that, you know, the company says yeah, sure, you can go defend the deposition. You've done this millions of times and you're not necessarily representing the company, but you still sort of are. And when you're representing that, when you're providing legal advice to the CEO, you want to make sure again you've got it, you've created an attorney client relationship, you're rendering legal advice. You need to make sure that relationship is papered properly.

[B]

So in that situation, would you recommend that the in house lawyer like actually does an engagement or a waiver to represent a CEO or you know, other party because I mean just use litigation because maybe that's easier where the company is sued and then the executives are named individually. Like is that something you'd recommend that we paper?

[A]

I would certainly paper the conflict waiver if the in house counsel is going to be representing them. Because at that point you arguably do have multiple clients in this situation. What most corporations are doing realistically is you know one, if this whole C suite gets named in a lawsuit, you're probably hiring outside counseling. That's a better move generally because although

[B]

the outside counsel, I mean, and you know, if I'm, they're working at my direction, my, my client is the company. And so you may need to have a separate lawyer for an executive depending on whether interests are divergent. But you're, are you saying in that case that maybe we should have a waiver for the executive to sign?

[A]

I mean if we're getting to the point where we're retaining outside counsel, perhaps the corporation is paying outside counsel still. And so what you would need to do is you would need to have a third party payor agreement in place which that would be the responsibility of the outside lawyer to obtain on behalf of their client who is in this case the CEO or whomever the constituent is of the corporation that they are representing. I think that makes a lot of sense and I think it also does make sense for in house counsel in that moment to say, hey, you know, you've got outside counsel. I'm not your personal lawyer on this. I am representing the corporate. You know, give the upjohn warning every time you see them in the hallway. Have them sign the document.

[B]

It's a great way to build trust, I think.

[A]

Yes. Just so you know, I've got you an outside lawyer and I am not your lawyer. So anything you say to me won't be privileged or it could be privileged at my discretion. Yeah. So I think that's, that's probably how I would handle it.

[B]

Yeah, well, just I think being aware of who the client is is really important. And you know, you talked a little bit about that. I'm just thinking, you know, there can be times, it's not infrequent, where your executive colleagues, the folks that you work with and who direct the business on a day to day fall out with the company and you go from, I mean this has happened to me many times where you go from being that person's colleague and advisor to being averse from them. So tips on how to handle that. How should the lawyer be aware of what do they need to do in those situations where, let's just say we're going to fire the CEO.

[A]

Yeah, Yeah. I think that's a messy situation. It just is. I think first and foremost, you have to remember to whom you owe your duty. And I think it's really tempting, especially if you've had a long, fruitful relationship with this person, to want to sort of tell them, hey, I got your back, or whatever the case, because there's a human element to it. Right. I mean, that's the difficult thing about ethics, is that ethics is a little bit like the reasonably prudent person standard in torts, where it's like, yeah, great. I mean, we are supposed to all be these sort of soulless, perfect decision makers, but we're not. That's just not the reality of the situation. And these sort of human. You introduce the humanity into the relationship and it does create potential for sort of weird circumstances to arise. So in my mind, if you're firing the CEO, I mean, I think if you could probably, as a best practice, remind the CEO, hey, I represent the company. Jane, I've really enjoyed working with you. You're the smartest woman I've ever met. I've loved this. But you know, we're gonna just now that we're no longer on the same team, just please remember I represent the company. Anything that you say to me if you're gonna tear down the company or if you're going to, you know, admit all these, you know, potentially illegal things that you did, that does create liability for you. I have a duty to report these things to my client. I owe them a fiduciary duty. I've loved working with you, but, you know, just keep that in mind going forward. We can still be friends, but we're not talking about this anymore. I've got to cut you off.

[B]

It's fine. You know, it's almost easier once the person knows that they're, you know, going to be cutting ties with the company. I had a GC call me a couple months ago and the board had let her know that they. So without the CEO's knowledge that they were going to be making a change. So imagine her situation where she's working, you know, offices next to the CEO.

[A]

CEO.

[B]

They're doing day to day business. Maybe there's some strategic deals they're working on. And all the while she knows that the board is making plans to make a change.

[A]

Yeah. And I think in that situation, you just have to, you have to keep it in. I mean, that's the duty of confidentiality. You again, you represent the corporation, you owe them a fiduciary duty. Your duty of confidentiality is with the corporation, and any failure to abide by that duty can land you into hot water with the bar.

[B]

Yeah, that's a great jumping off point. The sharing of information is a real. Let me just say management of information is a really important in house skill, and it's something that's hard to keep in mind. I just actually had a recent issue where someone was asking about something that I couldn't share with them because they're not sort of in the need to know circle. But let's talk about the duty of confidentiality in an in house setting. Like what do in house lawyers need to know about what they can share and when and to.

[A]

Sure, yeah. You know, again, this all sort of emanates from the first question you asked, which is, who is your client? And you know, it's the corporation, it's the entity that is your client. Rule 1.6 is that's the rule governing confidentiality in the rules. Professional conduct. It varies a little from state to state. For instance, my practice, I'm in Hawaii, Alabama, California. Each one of those has a slightly different version of the rule. I think told you off air. We're adding Oregon and other states soon, and they have their own duties. I think in general, you're able to reveal confidential information to the extent necessary to effectuate the representation. That's sort of a rule of thumb. But, you know, you've got listeners all over the country and I encourage them to go take a look at their own jurisdictions version of Rule 1.6.

[B]

One thing I do just from a practical standpoint is I will ask the client, whoever is, you know, engaging, you know, asking me to help with the deal or, you know, some other matter. Who's in the loop, who. Who can't like to have that conversation ahead of time about, you know, is this something super confidential? Can I bring these people in just so that we're having. I don't want to, you know, have a footfall, just accidentally share information with people that aren't in the loop.

[A]

Yes, I think that's exactly right. You know, we're getting into. I think when we're talking about confidentiality, there's an important distinction to make that really only ethics nerds like me care about, which is the delineation between the duty of confidentiality on the one hand and then the attorney client privilege on the other. Those sound the same and they are often used Interchangeably by average practitioners. But they're very different. The duty of confidentiality is. That's a personal duty that you owe to your clients. What we're talking about when we're saying, you know, who needs to be in the loop, we're starting really to get more into attorney client privilege issues. Because, you know, when a lawyer is giving advice, an in house lawyer is giving advice to a corporation. Only. Legal advice is privilege, business advice is not. And I think that's an important distinction, especially for people who are working in smaller organizations and you're wearing a lot of hats. For instance, I'm consulting on a case right now where it's a big real estate developer and their general counsel is also a primary project manager. And that creates a lot of issues. Because what happens if this project goes to litigation? What is privilege? What is not?

[B]

Well, and then that GC might be a percipient witness.

[A]

Exactly, exactly. And you might. Yeah, you might be called as a recipient witness to testify against your own client. And that is a very super thorny situation.

[B]

Sticky. Sticky.

[A]

Yeah. I think when we're talking about, you know, who's in the loop, I think that's the right question to ask. And I think what's difficult for in house counsel or for people, especially if you're fulfilling the general counsel role, is that you're often the person that people come to to ask that question. Who can I tell? You know, my. I represent lots of really big law firms and almost to a T, you know, once you get above a certain size, you hire a general counsel. And that's my point of contact. And so I find myself asking this a lot of times, you know, hey, we're working on this project to handle xyz. Who can we talk with about this from your end? Who do you want to know? And the real issue is that, you know, you can get into waiver situations, privilege waiver situations, if any unnecessary people are in the room when the advice is given, when legal advice is given. And so I do think that that analysis, you know, I think if you're an in house lawyer, you want to start to develop that analysis in tandem with the officers and directors. But then the ultimate call is really going to be yours. Yeah. And I think as small as possible is the generally a good idea.

[B]

Less is more.

[A]

Less is more. Exactly.

[B]

Yeah. Just. You're making me feel like my job's super heavy right now.

[A]

Your job, your job is heavy, but in the best way.

[B]

In the best way. Well, another information sharing issue is kind of the Duty to report up the ladder. And that's something I think that many people are not super aware of. But it is an expectation. And that's, you know, when the, when the proverbial shit hits the fan, there is the, you know, where were the lawyers? The lawyers were supposed to be, you know, on this. Talk about that duty. What is upladder reporting?

[A]

Sure. You know, it comes up a lot for people who are in house, but maybe not in the general counsel role. You know, they're not chief legal counsel or they're not the CLO or they're not, you know, the general counsel. They find out something's going on that shouldn't be. And the question is, who do they go to? And, you know, if you're in a really big organization, if we're talking like, you know, Fortune 500 and there's 150,000 employees, you probably have a pretty established chain of command, what the rules typically want you to do. And, you know, I can't speak for every jurisdiction, so I'm not licensed in every jurisdiction.

[B]

Disclaimer. Disclaimer.

[A]

I'm not your lawyer Up, John Wayne. But what the rules typically request of you or expect of you is that you take your report of, you know, some sort of information that could be potentially, you know, damaging the company or illegal or harmful to the public, depending on the jurisdiction that you're in. You report that as high up the chain as you can, including and up to. Up to, and including the CEO. And so, you know, that might look like, hey, I'm the assistant general counsel. I'm reporting it to the, you know, senior assistant, who then reports it. You know, and if they don't do anything, I just keep going up and up and up.

[B]

And so what sorts of things do we need to watch out for to be reported up the chain?

[A]

I think certainly illegal activity. I think there's also information that could be, you know, if you find out that the corporation or the entity is about to take action, that would be illegal or would have some sort of, you know, harmful impact on the public, I think is a really common one. If you're, you know, and if you find out that your company is about to pump a bunch of toxic chemicals into the watershed, that's probably the type of thing you'd want to report up. And I think where this gets, I think there's actually there's up and out reporting. So it's not just up.

[B]

Okay, let's talk. Let's break that down. Let's break down what's up and out.

[A]

So up and out would be you go up the ladder as high as you possibly can and then if nobody does anything, there are certain jurisdictions where you can disclose that the confidence you

[B]

can or you must.

[A]

There's somewhere it's permissive and there's some where it's mandatory. And so you need to know, you know, what your jurisdictions, specific rules are.

[B]

So if, let's just, you know, use your toxic chemical because that's a good generic example. If somebody suspected that, where should they go to validate after they've taken it up the chain, where should they go to determine whether they have an actual mandatory duty to report out?

[A]

Tell me more what you mean by that. I'm not sure I'm following.

[B]

Well, you said, you know, if we learn that the company might be doing something that's harmful to the public or illegal, that we need, we have a duty to sort of report up our chain. And if nothing's done, that we might have an obligation to report out to authorities or to regulators. And so my question is, if I'm, you know, we're not giving a 50 state survey here, but where could the lawyer look to find out whether they actually have a. Oh, a mandatory.

[A]

Dude. Yes, certainly. Yeah. So it's going to be in your state's Rules of Professional Conduct. That's where you'd want to take a look. It's going to be a chapter one rule, I think for, I want to say, for the up and out distinction. It's either going to be in chapter, it's going to be either Rule 1.6 or it might be in Rule 1.13, which is the, again, that's the rule governing a lawyer's ability to represent an organization and its constituents.

[B]

Is it ever appropriate to or, you know, going back to your experience in the Hawaii State Bar, did lawyers ever call for consultations just to say that?

[A]

Yes. Yeah.

[B]

Did they like that or did you. I mean, I would think I'd be a little nervous to, you know, calling for a friend here.

[A]

Yeah, so that's actually another one where it's really jurisdiction specific. So when I was a bar prosecutor in Hawaii, that was a huge part of my job. People would call in with issues and we would give them, we sort of had a mealy mouth term for it, confidential, informal guidance on their issue. But it was, you know, it was confidential. California is a little bit less direct in its informal guidance than we were in Hawaii. Alabama is very helpful and they also actually have a safe harbor provision so that if you call the bar with an ethics issue and request a written opinion. And you follow that opinion, you actually can't be prosecuted. So it's really jurisdiction specific. I would also say if you're nervous about reporting to the bar, you might perhaps engage the services of a competent ethics lawyer.

[B]

Yeah.

[A]

And maybe if you know one, that would be place to go. And I will say, because I know you've got a, I'm sure a broad listenership, if you need an ethics lawyer and I am not licensed in your jurisdiction, I've already told you where I'm at, Feel free to get in touch. And I, because I'm a member of some organizations, I can probably refer you to the best person in your state.

[B]

Great. That's an awesome resource. And we'll put that in the show notes. Also, how to reach you. I'm thinking relatedly of internal investigation, something that, you know, gives rise to what could be, you know, illegal conduct. We've mentioned Upjohn a couple times, but I think it'd be helpful to review that for folks like what is Upjohn? When does it come into play and what do we need to know about it?

[A]

That's a great question. I think let's start first and foremost with what is Upjohn? Actually, if you're a listener and you don't know what Upjohn is, you definitely need to hire an ethics lawyer. But basically Upjohn is the. That's the Supreme Court case that said that, you know, it expanded what was then called a control group test over privilege, attorney client privilege when representing a corporation or an entity. Prior to Upjohn, the Supreme Court had said, or the doctrine governing organizational attorney client privilege was you had privilege as to members of the control group. Upjohn made it clear that you can have attorney client privilege over sort of lower level constituents of the entity. But as a best practice, this is actually not codified, or I say codified. This isn't something that the Supreme Court said in Upjohn was sort of a best practice has emerged since then is what's called an Upjohn warning. And so what the idea is is that we are, as the lawyers are giving notice to the lower level employee that I am a lawyer, but I am the corporation's lawyer, I am not your lawyer. And you know, the idea is that we want to give them a free and full disclosure, kind of like the conflict waiver we discussed earlier. That would make it essentially impossible for them to say, well, I didn't know it was an investigation. I thought that you were representing me. I didn't know that you were representing the corporation. So what I tell people is when we're doing internal investigations or there's an upjohn issue, generally give the warning first thing in the interaction. There's a lot of issues tend to arise if you're giving it after substantive questionings began has begun, or after the employees already disclosed sensitive facts or only after the employee expresses concern. That's really a big one is they go, oh wait, oh my gosh, are you, wait, are you not my lawyer? Did I do something wrong? Am I being investigated? And so we want to make sure that we give the John warning early and in terms of what we want to say in can be, you know, the bullet points I tell people are I represent the company attorney client privilege. And this, this conversation may be privileged, but only for the as regards the company. So the company is going to be the holder of that privilege. The company may disclose any of the information that you tell me and that you may actually want to retain personal counsel because I am not representing you, I am again representing the company. Where things get really thorny for in house counsel when we're talking about investigations and upjohn warnings is when employees ask about their own personal exposure or the question, you know, did I do something wrong? Comes up. Or when you know, again you get into the it's kind of like the CEO who's been fired. That's your friend. You want to sort of reassure them about the consequences of what's going on or you want to help them frame their narrative. That can bring up issues with both as regards privilege and as regards professional duties and you know, avoiding things like engaging in dishonest conduct or something like that. So I will also say my bonus point, John is my rule of thumb is make sure that there's only one note taker when it comes to internal investigations. If you have two, you have the opportunity for people to have differing accounts of what happened. I'd also say don't record or have a transcript of the interview. That sort of thing is very often discoverable. And then I would say reduce your whatever notes you take to a memo promptly. And then the question comes up, well, should I shred my notes or throw them away? And I think that really is a risk tolerance dependent issue for the client to decide and the lawyer to decide at some point. Because especially if you're working in a highly regulated industry where Sarbanes Oxley is going to apply, you might have a situation where that would be a crime.

[B]

Yeah, well, Those are great tips. I wrote all of those down. One last kind of substantive area before we get to the fun in the conversation is, you know, a lot of companies, you know, have multi state operations. And one thing, I've only worked in one state, so it hasn't affected me. But do in house counsel who work, you know, have businesses in multiple states and advise multiple states need to be licensed in all of those states or what, you know, I could see that could get sticky if there were issues.

[A]

Yeah. So the typical rule is that most states have some sort of in house counsel allowance for non registration or not taking the bar. There is some sort of grace there, but it's really a state by state consideration. Certain states are a little bit more rigorous on it. California has been recently, has recently reconsidered its in house council registration requirements. Typically I don't see in house counsel being licensed in every state that their business has operations in, but they do typically have their sort of roster of lawyers that they go to in that state. A lot of my clients, again, law firms generally will have, you know, oh, and you know, in California we have this person and New Mexico we have this person and Georgia we have that person. And they sort of realize, hey, once we're getting into. Because this is also prudent risk management from a business risk standpoint, if we're talking about general stuff, you know, sure, I can, I can look up a, you know, a service rule for a, you know, lawsuit as well as anybody. But if we're getting into the point where we have a nuanced question that we're trying to answer, then at that point we're going to retain, you know, somebody local.

[B]

Yeah, right. It's sort of an evolving. You need to kind of keep your eye on it as the matter evolves. All right, well, cool. This was really informative. I'm just really thrilled to know you and you have a great network and resources for ethical issues. So I really appreciate it. Of course, the last question is a fun one and I've used music my whole life to get pumped up. Every day I listen to something different to get started. So what is your Pump up song? Oh, goodness, I'm stumped.

[A]

You know, I love Can't Stop Me now by Queen.

[B]

Okay.

[A]

I love that song.

[B]

It builds. That's a good one.

[A]

Yeah, Yeah, I think that would probably be it. I love the energy of it. I think that Freddie Mercury is the best rock singer of all time.

[B]

Yeah. So Stipulated. Agreed.

[A]

Yeah.

[B]

Well, hey, thanks for being here. Really enjoyed it.

[A]

Of course yeah. Thank you, Stacey.

[B]

Hey, before you go, if you want more content from the legal department, check out TLD Goal Getter On Substack. It's a mix of free and subscription based content to help you level up your career. That's TLD Goal Getter On Substack. Hope you check it out.