# Legal-Ethics Plan: The Altered Board Minutes ## 1. Immediate bottom line 1. **The firm may not continue the three-way joint representation of Ardent, Samuel, and Nora.** The original joint consent is stale. The conflicts are now direct or materially impairing and cannot be cured by the original engagement letter. 2. **The firm must correct the government’s mistaken understanding of the altered minutes before the subpoena deadline and must preserve all relevant evidence.** The voluntary presentation described the altered document as a contemporaneous corporate record. Metadata shows it was edited after the subpoena. The firm has a mandatory remedial duty to correct that false characterization. 3. **The firm should withdraw from Samuel immediately and from Nora as to any representation adverse to Ardent or Samuel.** If a “clean” lawyer exists, the firm may continue for Ardent **only in a limited emergency role**—correction, preservation, and truthful subpoena response—subject to informed written consent and an ethical screen. If Ardent requires the firm to use Samuel’s or Nora’s separate confidential information, or to pursue claims against them, the firm must decline that scope or withdraw from Ardent as well. 4. **Samuel’s private statement is at least confidential and likely privileged, but it is subject to crime-fraud and remedial-remedy exceptions.** The firm may and, in part, must disclose limited facts to the board and to the government to correct the false presentation and preserve evidence. Ardent cannot waive Samuel’s separate individual privilege. 5. **Nora should not be handled by this firm for immunity purposes.** She needs independent counsel. The firm should refer her and should not negotiate or argue immunity while the conflicts exist. 6. **Samuel’s challenge to the removal does not allow him to block the firm’s mandatory duties.** The firm should treat the independent directors/board as the presumptive authorized decisionmakers, confirm their authority, and seek a prompt court determination if needed. It should not delay correction or preservation. --- ## 2. Whether the firm may continue representing Ardent, Samuel, and Nora ### A. The three-way joint representation cannot continue The engagement letter made the representation joint and allowed information sharing, but joint representation is permissible only while the lawyer reasonably believes competent and diligent representation of each client remains possible and each affected client gives informed written consent. That condition is no longer met. The firm now knows, or has strong objective evidence, that: - Samuel edited the unsigned draft after the subpoena and wants it produced while avoiding exposure. - Ardent’s independent directors want the government corrected, evidence preserved, and possible claims against Samuel evaluated. - Nora says there was no March approval, says Samuel told her to say there was, wants to cooperate, and wants the firm to argue Samuel alone is responsible. - Ardent’s board wants to know whether Nora participated. Those objectives are not merely different; they are adverse. ### B. Conflict matrix | Parties in tension | Why the conflict is serious | Consentable? | |---|---|---| | **Ardent v. Samuel** | Samuel wants concealment; Ardent wants correction and may bring claims. Samuel is also challenging removal. | No, while Samuel is a current client. After withdrawal, likely still nonconsentable in this matter without Samuel’s informed written consent or a valid screen. | | **Ardent v. Nora** | Ardent wants to assess Nora’s participation; Nora wants to be exculpated and blames Samuel. | No for the scope involving her culpability or immunity. Effective representation of Nora would be materially impaired. | | **Samuel v. Nora** | Samuel allegedly directed Nora to say there was approval; Nora wants to shift blame to Samuel. | No. Direct adversity and blame-shifting make joint representation impossible. | | **All three together** | Each client has a different theory of what should be told to the government and who is responsible. | No. The original consent cannot continue after the conflict arises. | ### C. Which clients may still be represented The firm **may not** represent all three. The firm **should**: - **Withdraw from Samuel** as an individual client immediately. - **Withdraw from Nora** as to any representation that is or may become adverse to Ardent or Samuel, including her immunity request. - **Continue for Ardent only if**: 1. Ardent gives informed written consent to a limited continuation; 2. the firm can isolate and screen lawyers who received Samuel’s or Nora’s separate confidential information; 3. the firm will not use Samuel’s or Nora’s separate confidential information against them; and 4. the scope is limited to correction, preservation, and truthful subpoena response—not claims against Samuel or Nora or an opinion on Nora’s culpability. If no clean lawyer is available, or if Ardent insists that the firm pursue claims against Samuel or Nora using the individuals’ confidential information, the firm should **withdraw from Ardent as well**, after taking the mandatory correction and preservation steps. --- ## 3. Which lawyers may continue representing which clients The firm should create an immediate conflict screen. ### A. Lawyers who must be screened from adverse client representation | Lawyer | Reason | May do | May not do | |---|---|---|---| | Lead partner who heard Samuel’s statement | Received Samuel’s separate confidential information | Assist factually in the remedial correction under supervision; protect Samuel’s file | Represent Ardent in matters adverse to Samuel; represent Samuel in matters adverse to Ardent or Nora; use Samuel’s statement to help or harm any client | | Junior lawyer who included the altered document in the government presentation | Personally involved in the false presentation; may know metadata/facts | Assist in correction, preservation, and document collection under supervision | Represent any client in this matter in a way adverse to the individuals whose information is known; argue for any client using that information | | Lawyer who heard Nora’s statement | Received Nora’s separate confidential information | Assist factually in remedial correction; protect Nora’s file | Represent Ardent in matters adverse to Nora; represent Nora in matters adverse to Ardent or Samuel; use Nora’s statement to help or harm any client | ### B. Lawyers who may continue for Ardent A lawyer who: - did not receive Samuel’s separate statement; - did not receive Nora’s separate statement; - was not personally involved in the prior government presentation; and - is screened from those individuals’ files may represent Ardent in the limited emergency role, **if** Ardent gives informed written consent and the firm imposes an ethical screen. That lawyer may: - implement preservation; - prepare the truthful subpoena response; - make the remedial correction to the government; and - advise Ardent on nonprivileged organizational matters. That lawyer may **not**: - advise Ardent on whether Nora participated using Nora’s separate confidential information; - pursue claims against Samuel using Samuel’s separate confidential information; - argue that Samuel alone is responsible unless supported by nonprivileged, admissible evidence and without using improper confidential information; or - represent Ardent in any matter directly adverse to Samuel or Nora unless the conflict is fully resolved by consent or a valid screen. ### C. Samuel and Nora No firm lawyer may represent Samuel or Nora in this matter at this time unless the conflict is resolved through independent counsel, informed consent, and screening. In the 48-hour window, the firm should simply withdraw, preserve, and refer. --- ## 4. Obligations concerning the altered minutes already shown to investigators ### A. The earlier presentation must be corrected The junior lawyer included the altered document in a voluntary presentation and described it as a contemporaneous corporate record. The firm now knows, and metadata confirms, that the document was edited after the subpoena. That creates a mandatory remedial obligation. The firm must take reasonable remedial measures. When necessary, those measures override ordinary confidentiality. The firm must not: - continue to describe the document as contemporaneous; - produce or verify it as an unaltered corporate record; - suppress metadata; - follow Samuel’s instruction to avoid a “needless scandal” by concealing the alteration; or - use the document to prove contemporaneous approval unless it is truthful, supported, and properly qualified. Even if Samuel is correct that there was an oral approval in March, that does not cure the false characterization of the document. The document is an altered unsigned draft, not a contemporaneous record. ### B. The correction is not optional The firm must correct the false impression before the subpoena response is due, or as soon as possible. If the government later presents the document in a judicial or administrative proceeding, the firm must also correct the tribunal or agency to the extent required. ### C. The correction is a professional duty, not merely a client choice The firm may not treat this as a matter of “who pays.” Ardent’s payment does not permit interference with independent professional judgment, and Samuel’s or Nora’s client status does not permit the firm to assist concealment or false statements. --- ## 5. What may or must be disclosed, to whom, and in what sequence ### A. To Ardent’s higher authority: the independent directors/board **Must**: report Samuel’s officer violation to higher authority within the organization. Under the governing law, when a lawyer knows that an officer is violating a legal obligation to the organization or committing conduct likely to cause substantial injury, the lawyer must ordinarily report the matter to higher authority. The report should be limited and factual. For example: > “Samuel has stated that he edited the unsigned draft after the subpoena arrived. Metadata confirms post-subpoena editing. The firm is correcting the government presentation, preserving evidence, and responding to the subpoena. We are not disclosing further confidential information at this time except as required or permitted.” The firm should formally memorialize this report even if the board has already acted. ### B. To the government investigators **Must**: make a reasonable remedial correction. The firm should notify the investigators promptly by phone and written letter. The correction should be limited to what is necessary. A defensible correction might state: > “The firm previously presented an unsigned draft of board minutes as a contemporaneous corporate record. The firm has since learned, and metadata confirms, that the draft was edited after the subpoena was served. The document is therefore not a contemporaneous record. The firm is correcting the earlier characterization. The firm will produce the draft, related drafts, metadata, and responsive nonprivileged communications. The firm is preserving all relevant materials. All privileges are reserved.” If metadata identifies the user, the firm should produce the metadata. The firm need not volunteer Samuel’s full private statement unless necessary. The firm may disclose additional confidential information under the crime-fraud/remedial exception only to the extent reasonably necessary to rectify the false statement and prevent substantial injury. ### C. To Samuel The firm should give Samuel a withdrawal notice. It may state, in general terms, that the firm is making a required correction and that it cannot continue to represent him because of conflict and his direction to assist conduct the firm cannot lawfully support. The firm should not give Samuel a detailed pre-notice that would allow him to interfere with preservation or the correction. The firm should coordinate with the board and make the correction promptly. ### D. To Nora The firm should notify Nora that it is withdrawing or declining to represent her in any matter adverse to Ardent or Samuel. It should advise her to retain independent counsel before seeking immunity or making any statement to the government. The firm should not tell Nora about Samuel’s separate statement, and it should not tell Samuel about Nora’s separate statement. ### E. To Ardent The firm should notify Ardent that the joint representation is over and that it can continue only in a limited role, if at all. It should request informed written consent to the limited role and a clear scope. The firm should also tell the board that it cannot answer, using Nora’s separate confidential information, whether Nora participated. The board should retain independent counsel for that internal investigation. ### F. In the subpoena response The firm must make a truthful response. It should: - produce responsive nonprivileged materials; - include the altered draft, drafts, and metadata; - state that the draft was edited after the subpoena; - correct the earlier characterization; - withhold only properly privileged materials with a privilege log; and - avoid any verification or certification that the altered draft is a contemporaneous record. ### G. Suggested sequence for the next 48 hours 1. **Preserve immediately.** 2. **Confirm board authority and report to higher authority.** 3. **Notify the government of the correction.** 4. **Issue client withdrawal/conflict notices.** 5. **Prepare and serve the truthful subpoena response, or request a short extension only if necessary after correction.** 6. **Complete transition or confirm limited Ardent representation.** --- ## 6. Whether Samuel’s statement is confidential, privileged, subject to an exception, or overridden by remedial duties ### A. It is confidential Samuel’s statement to the lead partner is confidential information. At minimum, it is subject to the duty of confidentiality. ### B. It is likely privileged, but the privilege holder depends on capacity If Samuel spoke in his official capacity about corporate records, the organization may hold the privilege. If he spoke privately about his own conduct, the privilege may belong to Samuel individually. Because the statement was made privately and concerned his personal role in altering the document, the firm should treat it conservatively as **Samuel’s separate individual confidential information**, unless it clearly falls within the joint organizational representation. ### C. It is subject to the crime-fraud exception To the extent Samuel asked the firm to produce the altered document and avoid exposure, he was seeking legal assistance to further a false representation to the government. Communications made in furtherance of a crime or fraud generally are not privileged. At minimum, the portion of the communication requesting that the firm produce the altered document while suppressing the truth is not protected. ### D. Remedial duties override ordinary confidentiality Even if the statement is privileged, the firm has a mandatory remedial duty to correct false evidence or a false statement that it previously submitted unknowingly. When necessary, that remedial duty overrides ordinary confidentiality. The firm therefore may, and in part must, disclose limited facts sufficient to correct the government’s mistaken understanding. ### E. It is not freely waivable by Ardent If Samuel’s statement is his separate individual communication, Ardent cannot waive it. The organization may waive its own privilege through properly authorized decisionmakers, but it cannot waive an individual’s separate privilege. If the statement is a shared joint communication, Ardent still cannot unilaterally waive Samuel’s privilege against outsiders. One joint client cannot unilaterally waive another joint client’s privilege in shared communications. In a later dispute between joint clients, shared communications ordinarily are not privileged between them. But that does not allow the firm to disclose Samuel’s separate confidential statement to the government without consent or an exception. --- ## 7. Nora’s request for immunity The firm should not seek immunity for Nora while representing Ardent and while it has received separate confidential information from Samuel and Nora. ### A. Why the firm cannot handle it - Ardent wants to know whether Nora participated. - Nora wants the firm to argue Samuel alone is responsible. - Samuel is adverse to Nora. - The firm has received separate confidential information from both. - Nora’s immunity request implicates the same investigation and the same facts as Ardent’s and Samuel’s positions. The firm cannot competently and diligently represent Nora in that request while the conflicts exist. ### B. What the firm should do The firm should: - advise Nora that she needs independent counsel; - provide a referral list if appropriate; - not negotiate immunity or cooperation credit; - not tell the government that Nora is willing to cooperate unless she has retained independent counsel and given informed consent and the conflict is resolved; and - not use Nora’s separate statement to help Ardent or Samuel. If Nora has not retained counsel by the time she contacts the government, the firm should not act for her. It may give a general warning that she should not speak without independent counsel, but it should not provide substantive legal advice on immunity. --- ## 8. The disputed validity of Samuel’s removal ### A. The firm should not let Samuel’s claim block mandatory duties Samuel contends the removal was procedurally invalid and insists he remains a current joint client. That does not allow him to direct the firm to conceal evidence or make false statements. His individual client status, even if valid, cannot override the firm’s remedial and truthfulness duties. ### B. The board should be treated as presumptively authorized The firm should: - confirm that the independent directors or board had proper authority under the bylaws, proxy materials, or applicable corporate law; - obtain a written certification of authority if possible; and - if the validity is genuinely disputed, seek a prompt court determination. But the firm should not delay preservation or correction while that question is litigated. ### C. Samuel’s authority as an organizational constituent If the removal is valid, Samuel is no longer an authorized constituent of Ardent for organizational matters. If the removal is invalid, he may remain an authorized constituent, but he still cannot direct the firm to violate professional rules. For the 48-hour emergency, the firm should follow the board’s lawful instructions to preserve and correct, while recognizing Samuel’s individual client status for confidentiality and withdrawal purposes. ### D. Verification of the subpoena response If the response must be verified, Ardent should use a properly authorized officer who is not conflicted, such as a board-designated officer or the board secretary, if authorized. If authority is genuinely disputed, the firm should seek a court determination or use neutral language identifying the board’s direction. --- ## 9. Preservation obligations and the pending subpoena response ### A. Immediate litigation hold The firm should ensure that Ardent issues a written litigation hold immediately covering: - Samuel; - Nora; - the corporate secretary; - the board; - the independent directors; - IT and records custodians; - executives involved in the distribution agreement; and - anyone with access to the board-minute drafts, metadata, or related communications. The hold should require preservation of: - all versions of the board minutes; - drafts, redlines, and metadata; - emails, texts, instant messages, and calendar entries concerning the approval; - meeting notes and secretary notes; - devices and backups; - deletion logs; - and the materials provided to the government, including the voluntary presentation. Auto-deletion must be suspended. The firm should also preserve its own files, including the presentation, the altered document, metadata, and internal communications about the presentation. ### B. What must be produced The subpoena requests board minutes, drafts, metadata, and communications concerning the approval. The firm should produce: - all nonprivileged responsive board minutes, if any; - all drafts, including the altered unsigned draft; - all metadata; - nonprivileged communications concerning the approval; and - any responsive business records. The firm should not describe the altered draft as final, unaltered, or contemporaneous. ### C. What may be withheld The firm may withhold: - privileged attorney-client communications seeking legal advice; - work product, if applicable; and - individual separate confidential communications of Samuel or Nora, if not subject to an exception and not waived. The firm should prepare a privilege log that describes categories without revealing privileged content. But the firm should not assert privilege over: - the altered draft; - metadata; - ordinary business communications; or - communications made to further the alteration or false presentation, which may be subject to the crime-fraud exception. ### D. Correction in the subpoena response The subpoena response should include a cover letter stating: 1. The firm previously presented an unsigned draft as a contemporaneous corporate record. 2. Metadata confirms the draft was edited after the subpoena. 3. The document is not a contemporaneous record. 4. The firm is producing the draft, related drafts, metadata, and responsive nonprivileged communications. 5. The firm is preserving all relevant materials. 6. Privileged materials are withheld with a privilege log. 7. All privileges are reserved except as corrected. If a verification is required, it must be truthful. It may not state that the altered draft is a contemporaneous record. ### E. If the response cannot be completed in 48 hours The firm should not miss the deadline silently. It should: - make the correction immediately; - produce what can be produced, including the altered draft and metadata; - provide a privilege log for withheld items; - notify the government of the correction; and - request a short extension only if necessary, with a clear production plan. --- ## 10. Withdrawal and transition obligations ### A. Withdrawal from Samuel The firm should withdraw from Samuel immediately because: - the conflict is nonconsentable; - he directed the firm to assist conduct the firm cannot lawfully support; and - the firm must correct the government presentation. The withdrawal notice should: - state the withdrawal in general terms; - state that the firm is making a required correction; - advise him to retain independent counsel; - remind him of his preservation obligations; and - explain file return or transition in a way that does not assist obstruction. The firm should not give Samuel detailed information that would allow him to alter or suppress evidence. ### B. Withdrawal from Nora The firm should withdraw from Nora as to any representation adverse to Ardent or Samuel, including her immunity request. The withdrawal or declination notice should: - state that the conflict prevents continued representation; - advise her to retain independent counsel; - remind her of preservation obligations; and - avoid disclosing Samuel’s separate statement. ### C. Continuation or withdrawal from Ardent If the firm continues for Ardent, it should obtain written consent to the limited role and implement the screen. If the firm cannot continue for Ardent, it should: - notify Ardent; - make the mandatory correction; - ensure a truthful subpoena response is made; - cooperate with transition to new counsel; - preserve files; - and avoid assisting unlawful conduct. ### D. Notice to the government If the firm withdraws from Ardent or if new counsel is retained, the firm should notify the government of the change in representation if required by the subpoena, court rule, or professional rules. Withdrawal alone is not enough. The firm must still correct the false characterization. ### E. Protecting clients on transition The firm should: - advise clients of the subpoena deadline; - refer independent counsel; - segregate files by client; - return only materials properly belonging to each client; - avoid returning materials in a way that facilitates spoliation; - and not use one client’s separate confidential information to harm another. --- ## 11. Which communications Ardent may waive and which it may not ### A. Ardent may waive its own privilege Ardent may waive its own attorney-client privilege through properly authorized decisionmakers, such as the board or independent directors, if validly authorized. Ardent may waive privilege over: - organizational communications; - board communications with counsel; - non-individual corporate legal-advice communications; and - work product belonging to the organization. ### B. Ardent may not waive an individual’s separate privilege Ardent may not waive: - Samuel’s separate individual communications; - Nora’s separate individual communications; or - any communication that remains the individual client’s separate confidential information. Samuel’s private statement to the lead partner is likely in this category, especially because it concerned his personal role in the alteration. ### C. Shared joint communications Communications made as part of the joint representation are generally privileged against outsiders. But one joint client cannot unilaterally waive another joint client’s privilege in shared communications. Therefore, if a communication is shared among Ardent, Samuel, and Nora, Ardent cannot disclose it to the government over Samuel’s or Nora’s objection unless: - all affected clients consent; - an exception applies, such as crime-fraud or remedial necessity; or - the communication is not actually shared and belongs to the organization alone. ### D. Later disputes among joint clients In a later dispute between joint clients, shared communications ordinarily are not privileged between them. Thus, if Samuel’s statement was truly shared with Ardent as part of the joint representation, Ardent may be able to use it against Samuel in a later internal dispute. But that does not allow Ardent to disclose it to the government without Samuel’s consent or an exception. If the statement was separate, Ardent may not use or waive it at all. --- ## 12. How the firm should avoid using one client’s information improperly against another The firm should implement the following immediately. ### A. Separate files and confidentiality matrix Create separate files for: - Ardent; - Samuel; - Nora. Mark: - individual separate confidential information; - organizational privileged information; - shared joint communications; and - nonprivileged factual material. ### B. Ethical screen Screen: - the lead partner who heard Samuel; - the junior lawyer who made the government presentation; and - the lawyer who heard Nora. The screen should include: - no access to the other client’s files; - no discussion of the individual’s separate confidential information; - separate physical and electronic files; - access controls; and - a written screen protocol. ### C. No cross-use of separate confidential information The firm must not: - use Samuel’s private statement to help Nora blame Samuel; - use Nora’s private statement to advise Ardent that Nora participated; - use Samuel’s private statement to build Ardent’s claims against Samuel; - use Nora’s private statement to help Ardent against Nora; or - disclose one individual’s separate confidential information to the other client or to the government unless required or permitted. ### D. Use only appropriate information For Ardent’s limited representation, the firm may use: - nonprivileged organizational records; - metadata; - shared communications where appropriate and after the joint representation ends; and - information the board is authorized to disclose. It may not use: - Samuel’s separate confession; - Nora’s separate exculpatory statement; or - any individual’s separate confidential information to harm that individual. ### E. Decline the adverse internal investigation When Ardent asks whether Nora participated, the firm should say, in substance: > “We cannot provide that advice while we have received separate confidential information from Nora and while the conflict is not resolved. We will preserve and produce nonprivileged materials. The board should retain independent counsel for an internal investigation of Nora’s possible participation.” This avoids using Nora’s statement improperly. --- ## 13. Consequences of correcting the record, remaining silent, or withdrawing without explanation ### A. Correcting the record Correcting the record is the only defensible path. It: - satisfies the remedial duty; - avoids assisting false statements or obstruction; - preserves the firm’s professional integrity; - reduces the risk of discipline or criminal exposure; - may mitigate harm to Ardent; and - preserves the credibility of the response to the subpoena. It may be adverse to Samuel and may expose the alteration. But that is the required consequence. ### B. Remaining silent Remaining silent would be indefensible. It could result in: - a knowing failure to remedy a false statement; - assistance in obstruction or concealment; - professional discipline; - possible criminal exposure; - malpractice liability; - adverse inferences or sanctions; and - serious damage to the clients’ positions. The fact that the junior lawyer did not know when the document was presented does not excuse the firm now that it knows. ### C. Withdrawing without explanation Withdrawal alone is insufficient. If the firm withdraws but does not correct the false characterization, it may still be treated as having failed to take reasonable remedial measures. The government may continue to rely on the false presentation. Withdrawal is a remedy for conflict, not a shield against remedial duties. The firm may withdraw, but it must also correct the record and take reasonable steps to protect the clients without assisting unlawful conduct. --- ## 14. Exact defensible course during the next 48 hours The firm should take the following concrete steps. ### Hours 0–1: Freeze, preserve, and verify 1. **Stop any further work on producing the altered document as unaltered.** 2. **Issue a written litigation hold** to Ardent, Samuel, Nora, the corporate secretary, the board, IT, and all custodians. 3. **Preserve**: - the altered draft; - all drafts; - metadata; - communications; - devices; - backups; - deletion logs; - and the firm’s own files and presentation materials. 4. **Verify the metadata**: - creation date; - last-modified date; - user; - version history; - and hash values if available. 5. **Do not alter, edit, or re-date anything.** ### Hours 1–3: Confirm authority and report to higher authority 6. Meet with the independent directors or board. 7. Confirm their authority to direct the response and preservation. 8. Report, in limited form, that: - Samuel admitted editing the draft after the subpoena; - metadata confirms post-subpoena editing; - the firm is correcting the government presentation; - the firm is preserving evidence; and - the firm is withdrawing from joint representation. 9. If the board’s authority is genuinely disputed, note the dispute and seek a prompt court determination, but do not delay preservation or correction. ### Hours 1–4: Screen and assign 10. Identify all personally involved lawyers. 11. Screen: - the lead partner; - the junior lawyer; - and the lawyer who heard Nora. 12. Assign a clean lawyer or ethics partner to handle Ardent’s limited emergency representation, if any. 13. Implement access controls and a written screen. ### Hours 3–6: Correct the government 14. Call the investigators and provide a written correction. 15. State, in substance: - the unsigned draft was previously presented as a contemporaneous corporate record; - the firm has now learned, and metadata confirms, that it was edited after the subpoena; - it is not a contemporaneous record; - the firm will produce the draft, related drafts, metadata, and responsive nonprivileged communications; - the firm is preserving all relevant materials; - all privileges are reserved. 16. Do not volunteer Samuel’s full private statement. 17. Do not volunteer Nora’s separate statement. 18. If the materials may be used in a judicial or administrative proceeding, notify the appropriate tribunal or agency. ### Hours 6–12: Client notices 19. Send Samuel a withdrawal notice: - the joint representation has ended; - the firm is withdrawing from him as an individual client; - the firm is making a required correction; - he should retain independent counsel; - he has preservation obligations. 20. Send Nora a withdrawal or declination notice: - the firm cannot represent her in matters adverse to Ardent or Samuel; - she should retain independent counsel before seeking immunity or speaking to the government; - she has preservation obligations. 21. Notify Ardent: - the joint representation has ended; - the firm may continue only in a limited emergency role; - the firm cannot use Samuel’s or Nora’s separate confidential information against them; - the firm cannot advise on claims against Samuel or Nora or on Nora’s participation using their separate confidential information; - the board should retain independent counsel for that internal investigation; - Ardent must give informed written consent to any limited continuation. ### Hours 12–36: Prepare the subpoena response 22. Review all responsive materials. 23. Produce: - all nonprivileged responsive board minutes; - all drafts; - the altered draft; - metadata; - nonprivileged communications concerning the approval. 24. Withhold only properly privileged materials. 25. Prepare a privilege log. 26. Include the correction letter in the response. 27. Ensure any verification is truthful. 28. Do not certify the altered draft as a contemporaneous record. 29. If a short extension is needed for volume, request it only after making the correction and producing the core altered draft and metadata. ### Hours 36–48: Finalize representation and transition 30. If a clean lawyer is available and Ardent consents: - continue only for correction, preservation, and subpoena response; - decline the adverse claims scope; - refer the internal investigation to independent counsel. 31. If no clean lawyer is available, or Ardent insists on adverse use of individual confidential information: - withdraw from Ardent after ensuring the correction and a truthful response; - refer new counsel; - secure files; - and cooperate reasonably to avoid prejudice. 32. Provide Samuel and Nora with transition materials appropriate to their separate representations. 33. Do not give Ardent access to Samuel’s or Nora’s separate confidential files. 34. Document the entire process in a confidential ethics file. --- ## 15. Defensible positions the firm should and should not take ### The firm should say: - “We must correct the earlier characterization because metadata shows post-subpoena editing.” - “We are producing the draft, related drafts, metadata, and responsive nonprivileged communications.” - “We are preserving all relevant materials.” - “We cannot continue the joint representation.” - “Samuel and Nora need independent counsel.” - “Ardent should retain independent counsel for the internal investigation of individual responsibility.” - “We will not use individual separate confidential information improperly against any client.” ### The firm should not say or do: - “The minutes are a contemporaneous corporate record.” - “Samuel is not involved” if the metadata or facts show otherwise. - “Nora is not involved” based on her separate confidential statement. - “The board can waive Samuel’s individual privilege.” - “The firm will seek immunity for Nora” while the conflict exists. - “We will produce the document and say nothing about the metadata.” - “We will withdraw and say nothing to the government.” - “Samuel’s instruction controls because he is still a client.” - “Nora’s statement explains why Ardent should not be concerned.” --- ## 16. Final recommended course The firm’s defensible course is: 1. **End the joint representation immediately.** 2. **Preserve all evidence immediately.** 3. **Report the officer’s violation to the board/independent directors.** 4. **Correct the government before the subpoena deadline.** 5. **Produce the altered draft, drafts, and metadata truthfully.** 6. **Withdraw from Samuel and from adverse representation of Nora.** 7. **Continue for Ardent only in a limited, screened, consented emergency role, or withdraw from Ardent after ensuring a truthful response.** 8. **Refer Samuel and Nora to independent counsel.** 9. **Tell Ardent that the board should retain independent counsel to investigate individual responsibility, including whether Nora participated.** 10. **Do not use Samuel’s or Nora’s separate confidential information against them or for another client’s benefit unless required or permitted by an exception.** That course is the only path that satisfies the firm’s duties of truthfulness, remediation, confidentiality, conflict management, and withdrawal while avoiding assistance in obstruction or further false statements.