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Outside Counsel Conflicts of Interest Procedures
This directive provides standard procedures for the FDIC Legal Division ("Legal Division") with respect to outside counsel conflict of interest matters.
These procedures are designed primarily for the guidance of Legal Division personnel, although every outside counsel is expected to follow these procedures pursuant to its Legal Services Agreement ("LSA") with the Legal Division. These procedures do not provide outside counsel with any right to due process or right to a waiver.
These procedures apply to all requests for waivers of outside counsel conflicts of interest submitted to the Outside Counsel Conflicts Committee ("Conflicts Committee"), in accordance with the "2003 Statement of Policies Concerning Outside Counsel Conflicts of Interest" issued in April 2003 ("Statement of Policies"), as amended or superseded.
II. Authority of the Conflicts Committee and Regional Counsel to
Conflicts of Interest
The Legal Division has established a Conflicts Committee composed of five members (four attorneys from the Legal Division and a representative from the Office of Internal Control Management) which under delegated authority from the General Counsel has the authority to resolve outside counsel conflicts of interest and issues arising under the "Minimum Standards of Integrity and Fitness for an FDIC Contractor Regulations," 12 C.F.R. Part 366 ("Contractor Regulations"), as they relate to law firms and sole practitioner lawyers providing services to the FDIC. Generally, requests for waivers of conflicts of interest may be granted or denied on behalf of the FDIC only by the Conflicts Committee, the General Counsel or the Chairman of the FDIC.
III. Reporting Conflicts of Interest
A. During the Application Process
Outside counsel desiring to perform work for the FDIC must meet minimum standards of competence, experience, integrity and fitness for contractors, as specified in the Contractor Regulations. As part of the application process for an LSA, outside counsel must provide information concerning actual or potential conflicts of interest and matters that may present the appearance of a conflict. Each initial or renewal application should be referred to the appropriate Conflicts Coordinator for review of the outside counsel's conflicts disclosures. Disclosures of conflicts made during the application or renewal process should be referred to the Conflicts Committee for resolution prior to final approval or rejection of the application, unless the office or section does not intend to execute an LSA with the firm for reasons other than those concerning conflicts of interest. In such cases, a waiver request need not be submitted, unless outside counsel was inherited and continues to perform work for the FDIC on inherited matters.
Under the Contractor Regulations, whenever outside counsel discovers it is not in compliance with the regulations, it must disclose the matter to the FDIC in writing within ten (10) business days; however, pursuant to the Statement of Policies, the Legal Division expects matters of a sensitive or high profile nature to be disclosed immediately upon discovery.
B. After Retention
After outside counsel has executed an LSA, it has the continuing responsibility to monitor and report in writing any actual or potential conflict of interest or appearance of a conflict, whether or not it is representing the FDIC on active matters at the time of discovery. Under the Contractor Regulations, whenever outside counsel discovers it is not in compliance with the regulations (e.g., a conflict of interest that arises when outside counsel contemplates representation of a client adverse to the FDIC or is discovered during the course of representation of another client), the matter must be disclosed in writing to the FDIC within ten (10) business days of discovery; however, pursuant to the Statement of Policies, the Legal Division expects matters of a sensitive or high profile nature to be disclosed immediately upon discovery.
Conflicts of interest must be submitted to the Conflicts Committee for resolution even if the Legal Division office or section recommends denying the waiver request.
C. Failure to Disclose Conflicts or Comply with Policies
Failure to make full and timely disclosure of actual or potential conflicts of interest, or matters that may present the appearance of a conflict, as well as failure to comply with FDIC conflicts of interest policies and procedures are extremely serious matters. Such failures may subject outside counsel to corrective action including but not limited to: (1) a letter of reprimand; (2) refusal to waive a conflict; (3) suspension of new referrals; (4) rejection or reduction of fee bills; (5) withdrawal of all pending matters; (6) termination of legal services; (7) imposition of a bar to application; (8) denial of an LSA; (9) referral to the appropriate state licensing authorities; and, in appropriate cases, (10) civil or
It is solely within the discretion of the Legal Division to determine whether or not a conflict of interest exists. Even the appearance of a conflict may result in the denial of a waiver or other appropriate actions. In the event that matters are transferred pursuant to the corrective actions listed above, outside counsel is expected to follow FDIC policies and procedures and to cooperate fully in the orderly transfer of such matters.
Legal Division personnel should notify their Conflicts Coordinator immediately upon discovery of any undisclosed outside counsel conflict of interest.
IV. Procedures For Requesting Waivers of Conflicts of Interest
To obtain a waiver of an actual or potential conflict of interest, or appearance of such, outside counsel must submit a written request to the designated Conflicts Coordinator
at the Legal Division office or section with which the outside counsel negotiated its LSA or, if that office has closed, the office assuming the responsibilities of the closed office. Outside counsel lacking an LSA should direct a written request to the Conflicts Coordinator in the FDIC office or section having geographic jurisdiction over the firm's principal office. Outside counsel should not send waiver requests directly to the Legal Services Unit (“LSU”) or the Conflicts Committee: waiver requests will only be
considered when accompanied by the written recommendation of the appropriate Conflicts Coordinator with the concurrence of the office's Regional Counsel or section's Assistant General Counsel.
Outside counsel's waiver request (or the Conflicts Coordinator's
absent such request) should detail, where pertinent: (1) the nature of the conflict of interest; (2) the parties and financial institutions involved; (3) the office responsible for
the financial institution out of which the conflict of interest arises; (4) the nature of the work that has been, and/or currently is being, performed for the FDIC; (5) the financial institutions (or subsidiaries or servicers) for which work has been, or currently is being, performed on behalf of the FDIC; (6) the FDIC oversight attorney(s) involved in the conflict; and (7) any other relevant considerations suggested by the Statement of Policies.
Waiver requests received by Legal Division personnel who are not Conflicts Coordinators should be immediately forwarded to the appropriate Conflicts Coordinator.
To assist the LSU in tracking conflicts matters, the Conflicts Coordinators will forward to the LSU, via facsimile immediately upon receipt, all outside counsel conflicts disclosures or requests for waiver, including those that may not present an actual conflict of interest or those subsequently waived by Regional Counsel pursuant to delegated authority. The Conflicts Coordinator will thereafter: review outside counsel's disclosure and/or request; consult with the FDIC oversight attorney(s) involved; and coordinate the formulation of a recommendation to the Conflicts Committee. The Conflicts Coordinator is responsible for the completion of all documentation for the Conflicts Committee which should include a copy of outside counsel's disclosure or waiver request, the recommendation of the FDIC oversight attorney, a conflicts tracking system form, and the Conflicts Coordinator's recommendation for resolution of the conflict with concurrence by the office's Regional Counsel or section's Assistant General Counsel.
Appropriately documented conflicts matters are to be submitted to the Conflicts Committee for consideration as soon as completed but no later than THIRTY (30) DAYS after receipt of outside counsel's disclosure or request for waiver. If additional information is needed from outside counsel or others, the Conflicts Coordinator should ensure that a timely response is received so that the 30-day submission deadline is met. If no timely response is received, the Conflicts Coordinator should refer the matter to the Conflicts Committee without the additional information. Past due matters will be discussed with the Conflicts Coordinator and Legal Division management as appropriate.
The Conflicts Committee may exercise broad discretion when a conflict of interest is discovered without disclosure by outside counsel. If determined by the Conflicts Committee to be appropriate, however, the Conflicts Coordinator may notify outside counsel in writing of the discovery and allow counsel a specified period of time to address the issue in writing; if no response is received within the specified period, the Conflicts Coordinator will refer the matter to the Conflicts Committee without outside counsel input.
Meetings of the Conflicts Committee are not public proceedings. Appearances before the Conflicts Committee by outside counsel are not allowed. Contacts with individual members of the Conflicts Committee by outside counsel are strongly discouraged. Questions from outside counsel concerning pending waiver requests should be directed to the Conflicts Coordinator or the LSU in the Legal Operations Section.
V. Determinations By the Conflicts Committee
A. Regular Processing of Waiver Requests
The Conflicts Committee either meets or conducts voting via notational means to resolve pending waiver requests and other matters involving outside counsel. The Conflicts Committee will only consider requests for waiver that are appropriately documented and are received by the LSU.
B. Expedited Processing of Waiver Requests
The Conflicts Committee will consider a waiver request on an expedited basis for good cause shown. Good cause can be shown, for example, when a trial date, court or bid deadline is imminent, or when a client, potential client, or an employee of outside counsel will be materially prejudiced by a delay in resolution of the conflict of interest. The Conflicts Coordinator will make the initial determination as to whether to recommend expedited processing of a request for waiver, and will forward the request to the LSU. A brief written justification for expedited treatment must be incorporated into the documentation. If expedited processing is granted, facsimile copies of the waiver request will be accepted, provided original documents are later provided to the LSU. The Conflicts Committee will resolve expedited requests at the earliest possible time, customarily by notation vote with a minimum of three concurrences required. The LSU will notify outside counsel and the Conflicts Coordinator of the decision via facsimile followed by a confirmation letter to the outside counsel.
C. Reconsideration of Conflicts Committee Decisions
The Conflicts Committee will entertain requests for reconsideration of its decisions, when submitted by the appropriate Conflicts Coordinator, upon a showing of good cause. Good cause is generally shown by demonstrating the availability of new and significant information or changed circumstances.
VI. Terminations and Suspensions
A. Conflicts Committee Action
If the Conflicts Committee determines that termination of outside counsel's legal services is appropriate, matters must promptly be transferred to other counsel or to an in-house attorney, unless an exception is justified. For terminations and suspensions, the Conflicts Coordinator of each affected office or section shall distribute a memorandum or e-mail to its Legal Division staff describing the action of the Conflicts Committee. In termination cases, the Conflicts Coordinator should instruct staff to close, transfer, or request exceptions for all active or inactive legal matters assigned to the outside counsel within 45 days of the decision and outline the internal procedures to be followed in each instance. Terminations and suspensions of outside counsel are also noted on the FDIC's computer tracking systems for outside counsel.
Requests for exceptions to terminations to permit outside counsel to continue representation of the FDIC on particular matters will be considered on a case-by-case basis upon the request of the oversight attorney. These requests must be in essentially the same form as a waiver request submission and must demonstrate that good cause exists to justify an exception. Factors considered typically include: (1) availability of other experienced counsel in the geographic area; (2) pending deadlines and the likelihood of replacement counsel's becoming sufficiently knowledgeable to pursue the matter effectively; (3) cost of developing applicable expertise in replacement counsel; and (4) degree of prejudice to the FDIC.
B. Lawsuits Against Outside Counsel
Initiation of suit by the FDIC against outside counsel creates a conflict of interest requiring that no new referrals be made and that pending cases be reassigned to other counsel or to an in-house attorney. The Professional Liability Unit distributes a monthly list of lawsuits against outside counsel. Notifications to staff and requests for exceptions follow the procedure described in the preceding subsection.
VII. Conflicts Tracking
All conflict of interest waiver requests processed by the FDIC or RTC since January 1995 have been recorded on the Conflicts Tracking System, CTRACK. For each waiver request, CTRACK contains all relevant data, such as law firm information, conflict description, recommendation for resolution, and decision. CTRACK information is available in a read-only version in each field office and headquarters, and written reports of pending and historical matters may be generated by any user. The LSU is responsible for data entry and maintenance of the CTRACK system and also generates reports of pending conflicts matters. Updates of the conflicts data are performed on a regular basis.
Conflicts-related information may also be found on the FDIC's computer tracking systems for outside counsel. Comments for individual firms are added to the systems after the Conflicts Committee reaches a decision. These comments contain meeting dates and brief descriptions of the restrictions imposed.
Legal Division staff whose duties involve referral of matters to outside counsel must review the conflicts status of outside counsel on CTRACK and other systems PRIOR TO referring any matter to outside counsel.
VIII. Distribution of Conflicts Committee Decisions
The LSU is responsible for notifying each outside counsel in writing of the Conflicts Committee's decisions. Notification letters describe any conditions or corrective actions imposed by the Conflicts Committee and are delivered to the firm by Certified Mail, Return Receipt Requested. The letter states that "The decision of the Committee is effective upon receipt of this letter." Receipt is evidenced by the return of the Certified Mail Receipt.
Conflict waiver requests and determinations are confidential and are not to be communicated to anyone outside the FDIC, except the outside counsel affected by the determination or as necessary in litigation or other matters after approval by the Conflicts Committee.
IX. Other Responsibilities of Conflicts Coordinators
Each Conflicts Coordinator is responsible for maintaining adequate documentation concerning all requests for waivers of conflicts of interest within the office's or section's jurisdiction. Documentation should include, at a minimum, the following: (1) correspondence received from outside counsel disclosing the conflict and/or requesting a waiver; (2) internal correspondence between the oversight attorney or others involved in the conflict; (3) recommendation to the Conflicts Committee for resolution of the conflict; and (4) copy of the LSU’s letter notifying outside counsel of the Conflicts Committee's decision.
Outside counsel are responsible for compliance with the Statement of Policies. However, the Conflicts Coordinators should generally monitor compliance by outside counsel within their jurisdiction with the Statement of Policies. If the Conflicts Coordinator is notified that the representation or other type of conflict resulting in a conditional waiver is concluded or otherwise resolved, the Conflicts Coordinator is to provide written notice to the LSU, which will ensure that the indicated changes in status are reflected on the FDIC's computer tracking systems for outside counsel.
Conflicts Coordinators should send ALL reported or discovered conflicts and conflicts-related disclosures to the LSU, even those that indicate a conflict may not exist under the circumstances presented.
X. Effective Date
These procedures are effective immediately. Any questions should be directed to the LSU of the Legal Operations Section, 550 17th Street N.W., H-3007, Washington, D.C., 20429, (202) 736-0079.