How to Manage Individual Accountability for Corporate Wrongdoing
I often recommend after learning facts that a corporate executive consider retaining an attorney who does not also represent the executive’s corporation. Why? When the executive acts, that conduct serves two roles: one role as a leading corporate agent and the second role as an individual. Both a corporation and individual are responsible for the same conduct. The United States Department of Justice recognizes, as policy and practice, that corporate liability is separate and apart from individual liability. Please see the September 9, 2015 Memorandum from then Deputy Attorney General Yates entitled Individual Accountability for Corporate Wrongdoing.
Retaining a separate attorney is prudent, practical and productive. Your attorney offers the benefit of independent and confidential advice that addresses your circumstances and its consequence to you. This confidentially keeps your interests separate from the interests of the corporation. Your attorney and the attorney representing the corporation can utilize a Joint Defense Agreement (JDA) or a Common Interest Agreement (CIA). These agreements facilitate effective communication without compromising the safe harbor of confidentiality available to the executive. These confidential communications between attorneys better inform the courses of executive representation and corporate representation.