[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

advice not to remove documents from files reads, “If something is devastating, consider it
individually.” (Emphasis in original.)
There is evidence that Jones Day instructed ACC in how to rectify deficiencies so that
they would not be apparent to FHLBB examiners. Jones Day attorneys, including
Schilling, testified that they told ACC/Lincoln personnel to provide the Jones Daygenerated
“to do” lists only to the attorneys responsible for rectifying the deficiencies, and
to destroy the lists so that FHLB-SF would not find them in the files. For the same reason,
Jones Day’s regulatory compliance reports to ACC/Lincoln were oral. Jones Day paralegals
testified that responsibilities for carrying out the “to do” lists were divided among Jones
Day and ACC staff. Jones Day continued this work into the summer of 1986.
The evidence indicates that Jones Day may have been aware that ACC/Lincoln did not
follow its compliance advice with respect to ongoing activities. There are material questions
of fact concerning the procedures Jones Day used — if any — to ascertain whether their
compliance advice was being heeded. The testimony suggests that Jones Day partners knew
ACC/Lincoln personnel were preparing loan underwriting summaries contemporaneously
with Jones Day’s regulatory compliance review, even though the loan transactions had
already been closed. Moreover, the evidence reveals that Jones Day attorneys participated in
creating corporate resolutions to ratify forged and backdated corporate records.
On April 23, 1986, Jones Day partner Fohrman wrote:
I received Neal Millard’s memo on ACC. In looking at the long list of people involved, it occurred to me that
there will be times when individuals may be called upon to render legal services that might require the issuance of
opinion letters from Jones, Day. As we all know, we now possess information that could affect the way we write
our opinion letters and our actual ability to give a particular opinion may be severely restricted. However, this large
list of individuals may not be aware of knowledge that is held by Messrs. Fein and Schilling. I would suggest that a
follow up memo be issued by Ron Fein indicating that any work involving ACC which requires the issuance of
opinions, must be cleared by Ron. . . .
Also in April 1986, ACC’s Jim Grogan wrote to Jones Day’s Kneipper, soliciting a
strategy to “sunset” the FHLBB direct investment regulation. Jones Day subsequently made
multiple Freedom of Information Act requests to FHLBB in furtherance of a direct
investment rule strategy, for which Lincoln was billed. In a September 12, 1986 telephone
conversation, Grogan allegedly told Kneipper: “Comment letters were great success FHLBB
picked it up ‘hook, line and sinker’ . . . Charlie wants to do again . . . . ”
The record indicates that the concept of selling ACC debentures in Lincoln savings
branches may have originated at an April 9, 1986 real estate syndicate seminar given by
Jones Day Defendant Ron Fein. There is evidence that Fein may have contributed to the
detailed bond sales program outline, attending to details such as explaining how the sales
would work, and insuring that the marketing table was far enough from the teller windows
to distinguish between ACC and Lincoln Savings employees. The evidence indicates that
Jones Day reviewed the debenture registration statement and prospectus, which is
corroborated by Jones Day’s billing records. As a result, in January 1987, ACC was able to
assure the California Department of Savings & Loan that:
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