In-House Risk

Over the last thirty years or so, as the number of in-house counsel rose and their role increased in scope and prominence, increased attention has been given the various challenges these lawyers face under the ABA Model Rules of Professional Conduct, from figuring out who is the client the in-house lawyer represents, to navigating conflicts of interest, maintaining independence, and engaging in a multijurisdictional practice of law. Less attention, to date, has been given to business risk assessment, perhaps in part because that function appears to be part of in-house counsel’s role as a business person rather than as a lawyer. Overlooking the role of in-house counsel in assessing risk, however, is a risky proposition, because risk assessment constitutes for some in-house counsel a significant aspect of their role, a role that in turn informs and shapes how in-house counsel perform other more overtly legal tasks. For example, wearing her hat as General Counsel, a lawyer for the entity-client may opine and explain issues of compliance with the law. Wearing her hat as the Chief Legal Officer, however, the same lawyer may now be called upon as a member of business management to participate in the decision whether to comply with the law. After outlining some of the traditional challenges faced by in-house counsel under the Rules, this short essay explores risk assessment by in-house counsel and its impact on their role and function under the Rules. It argues that the key to in-house lawyers’ successful navigation of multiple roles, and, in particular, to their effective assessment of business risk is keen awareness of the various hats they are called upon to wear. Navigating these various roles may not be easy for lawyers, whose training and habits of mind often teach them to zoom in on legal risks to the exclusion of business risks. Indeed, law schools continue to teach law students “to think like a lawyer” and law firms, the historical breeding grounds for in-house counsel positions, in a world of increased specialization master the narrower contemplation of legal questions. Yet the present and future of in-house counsel practice demand of its practitioners the careful and gradual coming to terms, buildup and mastery of business risk analysis skills, alongside the cultivation of traditional legal risk analysis tools.

Comment Letter: The NYSE and the End of the Structural Separation between Regulatory and Commercial Interests of the Exchange

The NYSE transformed into a for profit entity in 2006. As part of the approval process, the NYSE agreed to structurally separate the regulatory function from the business function. In doing so, the NYSE created NYSE Regulation, a non-profit with an independent board, to handle most regulatory matters. During the comment period, a spirited debate arose over the ability of a for profit company to carry out a regulatory mission. Some suggested that the regulatory function was incompatible with a "for profit" motive and that NYSE Regulation should be spun off. Others accepted the proposed structure but called for additional changes designed to reduce the possible influence of the public holding company over the regulatory function. In the end, the SEC approved the structure but with a number of prophylactic safeguards including the requirement that NYSE Regulation have a board consisting of all independent directors (save the CEO) and that directors from the for profit holding company could not make up a majority of the board. More recently, however, the NYSE has proposed to end the structural separation of the two functions and instead put in place a functional separation. The proposal would result in the termination of the delegation agreement between the Exchange and NYSE Regulation and the creation of both a Regulatory Oversight Committee of the Board of Directors of the Exchange and the creation of a Chief Regulatory Officer. This letter examines the history of the separation of the two functions and critiques the NYSE's proposal.

Discipline And Due Process In The Workplace

In the article - Discipline and Due Process in the Workplace – by Edwin B. Dean, Assistant Professor, the School of Hospitality Management at Florida International University, Assistant Professor Dean prefaces his article with the statement: “Disciplining employees is often necessary for the maintenance of an effective operation. The author discusses situations which require discipline and methods of handling employees, including the need for rules and due process.” In defining what constitutes appropriate discipline and what doesn’t, Dean says, “Fair play is the keystone to discipline in the workplace. Discrimination, caprice, favoritism, and erratic and inconsistent discipline can be costly and harmful to employee relations, and often are a violation of law.” Violation of law is a key phrase in this statement. The author offers a short primer on tact in regard to disciplining an employee. “Discipline must be tailored to the individual,” Dean offers a pearl of wisdom. “A frown for one can cause a tearful outbreak; another employee may need the proverbial two-by-four in order to get his attention.” This is a perceptive comment, indeed, and one in which most would concede but not all would follow. Dean presents a simple outline for steps in the disciplinary process by submitting this suggestion for your approval: “The steps in the disciplinary process begin perhaps with a friendly warning or word of advice. The key here is friendly,” Dean declares. “It could progress to an oral or written reprimand, followed by a disciplinary layoff, terminating in that equivalent of capital punishment, discharge.” Ouch [!]; in order from lenient to strident. Dean suggests these steps are necessary in order to maintain decorum in the workplace. Assistant Professor Dean references the Weingarter Rule. It is a rule that although significant, most employees, at least non-union employees, don’t know is in their quiver. “If an interview is likely to result in discipline, the employee is entitled to have a representative present, whether a union is involved or not,” the rule states. “The employer is not obligated to inform the employee of the rule, but he is obligated to honor the employee's request, if made,” Dean explains. Dean makes an interesting point by revealing that a termination often reflects as much on the institution as it does the employee suffering the termination. The author goes on to list several infractions that could warrant an employee disciplinary action, with possible approaches toward each. Dean also cautions against capricious disciplinary action; if not handled properly a discipline could and can result in a lawsuit against the institution itself.

Essays on Personal Bankruptcy Law and Small Business Financing

Thesis (Ph.D.)--University of Washington, 2016-06

The role of law and ethics in developing business management as a profession

Currently, business management is far from being recognised as a profession. This paper suggests that a professional spirit should be developed which could function as a filter of commercial reasoning. Broadly, management will not be organised within the framework of a well-established profession unless formal knowledge, licensing, professional autonomy and professional codes of conduct are developed sufficiently. In developing business management as a profession, law may play a key role. Where the idea is that business management should be more professsionalised, managers must show that they are willing to adopt ethical values, while arriving at business decisions. The paper argues that ethics cannot survive without legal regulation, which, in turn, will not be supported by law unless lawyers can find alternative solutions to the large mechanisms of the official society, secured by the monopolised coercion of the nation state. From a micro perspective of law and business ethics, communities can be developed with their own conventions, rules and standards that are generated and sanctioned within the boundaries of the communities themselves.

Information professionals in business context: new professionals, old skills

This communication aims to present some reflections regarding the importance of information in organizational context, especially in business context. The ability to produce and to share expertise and knowledge among its employees is now a key factor in the success of any organization. However, it’s also true that workers are increasingly feeling that too much information can hurt their performance. The existence of skilled professionals able to organize, evaluate, select and disseminate information in organizations appears to be a prerequisite for success. The skills necessary for the formation of a professional devoted to the management of information and knowledge in the context of business organizations will be analysed. Then data collected in two focus group discussion with students from a graduate course in Business Information, from Polytechnic Institute of Porto, Portugal, a will be examined.

Information professionals in business context: new professionals, old skills

This communication aims to present some reflections regarding the importance of information in organizational context, especially in business context. The ability to produce and to share expertise and knowledge among its employees is now a key factor in the success of any organization. However, it’s also true that workers are increasingly feeling that too much information can hurt their performance. The existence of skilled professionals able to organize, evaluate, select and disseminate information in organizations appears to be a prerequisite for success. The skills necessary for the formation of a professional devoted to the management of information and knowledge in the context of business organizations will be analysed. Then data collected in two focus group discussion with students from a graduate course in Business Information, from Polytechnic Institute of Porto, Portugal, a will be examined.

Comunicação Externa em Business-to-Business

Esta versão não contém as críticas e sugestões dos elementos do júri

Neither Bad Apple nor Bad Barrel: How the Societal Context Impacts Unethical Behavior in Organizations

Every time another corporate scandal captures media headlines, the 'bad apple vs. bad barrel' discussion starts anew. Yet this debate overlooks the influence of the broader societal context on organizational behavior. In this article, we argue that misbehaviors of organizations (the 'barrels') and their members (the 'apples') cannot be addressed properly without a clear understanding of their broader context (the 'larder'). Whereas previously, a strong societal framework dampened the practical application of the Homo economicus concept (business actors as perfectly rational and egocentric utility-maximizing agents without any moral concern), specialization, individualization and globalization led to a business world disembedded from broader societal norms. This emancipated business world promotes a literal interpretation of Homo economicus among business organizations and their members. Consequently, we argue that the first step toward 'healthier' apples and barrels is to sanitize the larder, that is, adapt the framework in which organizations and their members evolve.Chaque fois qu'un nouveau scandale fait la une des médias, la question de savoir si le problème se situe au niveau des individus (des 'pommes isolées') ou au niveau des organisations (les 'caisses de pommes') refait surface. Ce débat tend néanmoins à sous-estimer l'influence du contexte sociétal plus large sur le comportement dans les organisations. Dans cet article, nous soutenons l'idée que les scandales éthiques dans les organisations ou parmi leurs membres ne peuvent être compris correctement sans une vision plus précise de leur contexte plus large (la 'cave à pommes'). Si dans le passé un contexte sociétal fort permettait d'adoucir les applications pratiques de l'Homo economicus (qui considère l'acteur économique comme un agent parfaitement rationnel et égocentrique cherchant à maximiser son utilité sans réflexion morale), l'individualisation et la globalisation ont conduit à un monde économique désencastré et déconnecté des normes sociales plus larges. Ce monde économique autonome promouvoit une interprétation littérale de l'Homo economicus parmi les entreprises et leurs employés. Il en résulte que le premier pas vers des pommes moins pourries passe par un assainissement de la cave, c'est-à-dire l'adoption d'un cadre socio-normatif qui permet un recadrage du contexte dans lequel les organisations économiques et leurs acteurs agissent.

Inclusive business and poverty: prospects in the Brazilian context

Inclusive business is a term currently used to explain the organizations that aim to solve social problems with efficiency and financial sustainability by means of market mechanisms. It can be said that inclusive businesses are those targeted at generating employment and income for groups with little or no market mobility, in keeping with the standards of so-called "decent jobs" and in a self-sustaining manner, i.e., generating profit for the enterprises, and establishing relationships with typical business organizations as suppliers of products and services or in the distribution of this type of production. This article discusses the different concepts found in the scientific literature on inclusive businesses. It also analyses data from a survey conducted with the audiences of Social Corporate Responsibility seminars held by FIEMG. This analysis reveals that prospects, risks and idealizations similar to those found in inclusive business theories can also be found among individuals that run social corporate responsibility projects, even if this designation is new for them. The connection between companies and poverty, especially in relation to inclusive businesses, seems full of stumbling blocks and traps in the Brazilian context.

Role of the cultural values as a key part in the implementing of healthy practices : exploratory research

El concepto de organización saludable cada vez toma más fuerza en el ámbito empresarial y académico, a razón de su enfoque integral y al impacto generado en distintos grupos de interés. Debido a su reciente consolidación como concepto, existe un limitado cuerpo de investigación en torno al tema. Para contribuir a la generación de conocimiento en este sentido, se desarrolló un estudio exploratorio el cual tenía como objetivo identificar la relación existente entre la implementación de prácticas saludables en las organizaciones y los valores culturales. En el estudio participaron 66 sujetos a quienes se les administró un cuestionario compuesto por nueve variables, cinco provenientes del modelo de Hofstede (1980) y cuatro más que evaluaban la implementación de prácticas organizacionales saludables. Los resultados obtenidos muestran que los valores culturales predicen la implementación de prácticas saludables.

Developing international business managers through international study visits to China

Globalization is a key factor in the success of business organizations today, impacting many aspects of management performance. Understanding the global business environment has therefore become a key objective in the teaching of international business on Executive MBA programs. Drawing on the theory of experiential learning, this study examines the relationship between program structure and learning activities of an international study visit (ISV) to China and the learning experience for Executive MBA students. The findings indicate that learning experience may be most effective where the structure of an ISV incorporates certain activities that promote experiential and deep-level learning. Educational implications are discussed.

Inclusive business and poverty: prospects in the Brazilian context

Inclusive business is a term currently used to explain the organizations that aim to solve social problems with efficiency and financial sustainability by means of market mechanisms. It can be said that inclusive businesses are those targeted at generating employment and income for groups with little or no market mobility, in keeping with the standards of so-called "decent jobs" and in a self-sustaining manner, i.e., generating profit for the enterprises, and establishing relationships with typical business organizations as suppliers of products and services or in the distribution of this type of production. This article discusses the different concepts found in the scientific literature on inclusive businesses. It also analyses data from a survey conducted with the audiences of Social Corporate Responsibility seminars held by FIEMG. This analysis reveals that prospects, risks and idealizations similar to those found in inclusive business theories can also be found among individuals that run social corporate responsibility projects, even if this designation is new for them. The connection between companies and poverty, especially in relation to inclusive businesses, seems full of stumbling blocks and traps in the Brazilian context.