Wednesday, October 31, 2012
It's a new offering that began this fall called "Challenges of General Counsel" and is being co-taught by the General Counsel for Ernst & Young and the former GC of General Electric. From Corporate Counsel at Law.com:
It's a September evening at Harvard Law School. Twenty-two students are being asked to imagine that they are the general counsel of Hewlett-Packard, circa 2010. They've worked with the boss, CEO Mark Hurd, for years, and they consider him a friend, too. Then one day Hurd steps into their office with a letter from the high-profile attorney Gloria Allred, claiming that he has sexually harassed her client, a company contractor, and revealed secrets about the corporation.
The instructors want to know what the general counsel should say to Hurd.
Pooja Patel, a third-year, jumps into the hot seat: "I'd ask him if it's true."
"Is [Hurd's answer] a privileged statement?" asks Ben Heineman Jr., former general counsel of General Electric Company. "I believe so," she says. Heineman corrects her. "No," he says. It's not privileged as far as Hurd is concerned.
Sitting next to Heineman is his coinstructor, professor and vice-dean David Wilkins, who prods further. "Is this just a question of [Hurd's] personal ethics or morality?" he asks. "Why is this not solely a personal matter?"
Another student chimes in. "Because he was in a position as an employer." Others keep going: He was allegedly using company funds. Hurd is the face of the corporation. He was allegedly dispensing insider information. "So why isn't this privileged?" Wilkins asks.
Now Patel's got it. "Because there's a conflict between his interests and the company's interests." Bingo. The general counsel represents the company, and the privilege belongs to it, not the employees.
The exchange sets the stage for the challenging questions to follow, including how to inform the board about the allegations, what role the GC should play in the internal investigation, and whether it's worth ousting a CEO for lying about several thousand dollars in expenses—as Hurd eventually was.
Welcome to "Challenges of General Counsel," a new offering at Harvard this fall, taught by Wilkins, Heineman, and Ernst & Young general counsel Michael Solender. While Heineman and Solender originated the course at Yale Law School in spring 2011, this semester it's Harvard students who are wrestling with about a dozen case studies that range from global sourcing at IKEA to BP's handling of the Gulf oil spill. The guiding principle for each discussion is (to paraphrase the syllabus) not just "what is legal," but "what is right.""This is really a course about how to be a lawyer when the law is only part of any question you're dealing with," Heineman explains in an interview after class is over.