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> Although a company the size of booking.com should have its own qualified legal department, so that may not shield them from being liable... How does retainin

> Although a company the size of booking.com should have its own qualified legal department, so that may not shield them from being liable... How does retaining outside counsel as opposed to employing internal counsel have any bearing on liability? Asking genuinely. I'm not an attorney.

jc01480 5y ago
From a legal perspective, internal counsel may not be able to shield certain things as attorney work product. If an outside counsel is representing the firm the attorney work product privilege is almost impenetrable (in US law). And the privilege can be asserted across all dealings around the investigation and the results. Any firm relying solely on internal counsel needs new counsel. Retainers are a thing.
edwardwatson 5y ago
Even if they have internal counsel (I haven't checked but I'm sure a company as large as Booking.com does), for decisions which have for reputational harm, it's useful to lean on advice from X prestigious third party. The same goes for using consultants. It's not just about deferring blame for a backlash but lending an air of objectivity and professionalism to the decision(s) made by management.
short_sells_poo 5y ago
More to the point, I don't understand how is this even an excuse? This sounds like invoking ignorance of the law as defense. "But your honor, Joe McLawyer told me it's perfectly legal for me to shoot my neighbor. I can't be held responsible!"
- stordoff 5y ago
  In narrow circumstances, I can see how receiving legal advice may be a factor. For instance, theft in England and Wales must be dishonestly done, and s.2(1)(a) of the Theft Act[1] states that: > A person's appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person Pure ignorance of the law doesn't provide you such a belief (IIRC), but seeking legal advice may do so. I'm can't think of any other examples, but I wouldn't be surprised if they exist (for example, if your conduct must be reasonable, following legal advice may lend weight to the argument that it was). It would also be relevant to explaining the conduct, even if it does not provide a legal defence. [1] https://www.legislation.gov.uk/ukpga/1968/60 https://www.legislation.gov.uk/ukpga/1968/60
- elliekelly 5y ago
  It’s not about ignorance of the law but about demonstrating you made a “good faith” effort to comply and oops, it turns out you landed on the wrong decision. You got some bad advice, but now you know! Won’t happen again, sorry about that! Depending on how much of a grey area you’re operating in the law firm may or may not issue an opinion letter. So if you’re really pushing the boundary of what is reasonable to the point outside counsel won’t put it in writing you know you’re taking a pretty aggressive legal position. Some of the big law firms/practice groups have a reputation for being willing to be more aggressive in their written opinions than others. Large multinational companies often have several big law firms on retainer and their in house legal team will know who to go to for more conservative legal advice and who to go to for cover on a risky legal position. So I’ve heard, at least, I definitely would never participate in such ethically dubious behavior.
hugh-avherald 5y ago
Communications with outside counsel is (more) protected by privilege than with internal.

jc01480 5y ago

From a legal perspective, internal counsel may not be able to shield certain things as attorney work product. If an outside counsel is representing the firm the attorney work product privilege is almost impenetrable (in US law). And the privilege can be asserted across all dealings around the investigation and the results. Any firm relying solely on internal counsel needs new counsel. Retainers are a thing.

edwardwatson 5y ago

Even if they have internal counsel (I haven't checked but I'm sure a company as large as Booking.com does), for decisions which have for reputational harm, it's useful to lean on advice from X prestigious third party. The same goes for using consultants. It's not just about deferring blame for a backlash but lending an air of objectivity and professionalism to the decision(s) made by management.

short_sells_poo 5y ago

More to the point, I don't understand how is this even an excuse? This sounds like invoking ignorance of the law as defense. "But your honor, Joe McLawyer told me it's perfectly legal for me to shoot my neighbor. I can't be held responsible!"

stordoff 5y ago
In narrow circumstances, I can see how receiving legal advice may be a factor. For instance, theft in England and Wales must be dishonestly done, and s.2(1)(a) of the Theft Act[1] states that: > A person's appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person Pure ignorance of the law doesn't provide you such a belief (IIRC), but seeking legal advice may do so. I'm can't think of any other examples, but I wouldn't be surprised if they exist (for example, if your conduct must be reasonable, following legal advice may lend weight to the argument that it was). It would also be relevant to explaining the conduct, even if it does not provide a legal defence. [1] https://www.legislation.gov.uk/ukpga/1968/60 https://www.legislation.gov.uk/ukpga/1968/60
elliekelly 5y ago
It’s not about ignorance of the law but about demonstrating you made a “good faith” effort to comply and oops, it turns out you landed on the wrong decision. You got some bad advice, but now you know! Won’t happen again, sorry about that! Depending on how much of a grey area you’re operating in the law firm may or may not issue an opinion letter. So if you’re really pushing the boundary of what is reasonable to the point outside counsel won’t put it in writing you know you’re taking a pretty aggressive legal position. Some of the big law firms/practice groups have a reputation for being willing to be more aggressive in their written opinions than others. Large multinational companies often have several big law firms on retainer and their in house legal team will know who to go to for more conservative legal advice and who to go to for cover on a risky legal position. So I’ve heard, at least, I definitely would never participate in such ethically dubious behavior.

hugh-avherald 5y ago

Communications with outside counsel is (more) protected by privilege than with internal.