Bradley attorney Todd Presnell was quoted in Law360 on a Pennsylvania professional conduct rule that requires corporate counsel to provide an Upjohn warning to individual corporate employees when their interests in a legal matter are conflicting. In a recent case, the Pennsylvania Supreme Court ruled that Cynthia Baldwin, Pennsylvania State University’s ex-general counsel, ran afoul of rules governing conflicts of interest as she worked on behalf of Penn State throughout the Jerry Sandusky investigation while also providing legal counsel to three top administrators who went on to face criminal charges. Experts are now debating if the state’s professional conduct rule should be tweaked for clarity.
Presnell explained that making the rules too prescriptive would rob corporate counsel of a significant amount of flexibility in handling potentially sensitive internal investigations.
“My concern with amending the rules to require Upjohn warnings in particular instances is that there is no one-size-fits-all remedy,” he said. “I think the rule needs to be broad enough to allow lawyers to exercise good judgment in each situation, otherwise I think there’d be Upjohn warnings given when there’s really no need for it.”
He added that giving needless Upjohn warnings could frighten corporate employees out of sharing vital information.
“You want those employees and representatives to be candid with you, and when Upjohn warnings are given without the need for it, it can chill those conversations,” he said. “So you have to be able to balance that and make the right decision in each situation.”
The complete article, “PSU Ethics Case Brings Conduct Rules' Clarity Into Question,” first appeared in Law360 on February 21, 2020.