{Updated from an earlier item focusing solely on Allen Ruby]
Sometimes even Silicon Valley’s biggest legal muscle needs to call on outside counsel. Just ask Wilson Sonsini Goodrich & Rosati General Counsel Donald Bradley (or don’t — we left a voice mail for him that he didn’t return, and a firm spokeswoman said they’d have no comment).
Over the last few weeks, Bradley has had to get outside help when criminal defendants in two high-profile cases began efforts to squeeze documents out of the firm. In the state prosecution stemming from Hewlett Packard’s well-publicized boardroom conflagration, the firm tapped top San Jose litigator Allen Ruby; in the federal criminal case against two former executives from Brocade Communications — the first criminal case filed in the stock option backdating scandal — Pamela Phillips of Howard, Rice, Nemerovski, Canady, Falk & Rabkin got the nod.
To hear some tell it, Ruby’s presence was inevitable:
"Allen is kind of like the toll taker," Wilson Sonsini partner Robert Feldman told The Recorder in a 2003 profile of Ruby. "If there's a big case in San Jose, Allen is there."
The firm hired Ruby to deal with a sticky situation related to the state criminal case against former HP Chairman Patricia Dunn and four others for allegedly using illegal tactics to spy on board members. Former HP in-house lawyer Kevin Hunsaker — the company’s ethics chief until the scandal got him canned — is accused of overseeing the investigation of boardroom leaks, and has pleaded not guilty to four counts related to the probe. To that end, he has subpoenaed Wilson Sonsini for documents relating to his case.
It’s not clear whether the subpoena relates to an advice-of-counsel defense. Hunsaker’s lawyer, San Diego-based Michael Pancer, wouldn’t talk about the subpoena Monday other than to say that it is related to Hunsaker’s preparation of his defense. But in the past, Pancer has said that his client is not guilty, and that he acted with the knowledge of counsel inside and outside the firm.
Also unclear is the extent to which any documents in Wilson’s possession are privileged. HP gave plenty of paperwork related to the probe to Congress in September, and HP may have waived its attorney-client privilege in offering information to the government. If that’s the case, the documents would probably have to be turned over to Hunsaker during discovery.
Reached Monday, Ruby — whose current client list includes San Jose Mayor Ron Gonzales, currently facing a bribery indictment — referred all questions to Wilson Sonsini GC Bradley.
Privilege questions are sure to pop up in the federal case against former Brocade executives, too, though it’s already known that that company has waived privilege over some documents in its cooperation with the government.
Dealing with those issues on Wilson’s behalf will be Phillips, who joined Howard Rice last month after leaving her formerly semi-eponymous firm Rogers, Joseph, O’Donnell & Phillips. She has represented Wilson before, notably in a 2002 conflict case in which a former Wilson client got the firm disqualified from representing an adversary.
Now she's trying to get U.S. District Judge Charles Breyer to quash subpoenas sent to Wilson by Brocade’s ex-CEO, Gregory Reyes, and former HR manager, Stephanie Jensen, as they try to defend federal securities fraud charges. The defendants are trying to get documents related to options issues from Wilson — Brocade’s outside counsel — and Morrison & Foerster, which performed an internal investigation of options issues for the company.
MoFo and Wilson are both opposing the subpoenas, but their arguments aren’t clear yet; we couldn’t get to the courthouse by 12:45 to review the documents, and lawyers for the firms failed to file them electronically — which prompted a snarky admonition from the court clerk.
One big question that the documents are unlikely to answer is whether the attempt to seek documents from Wilson indicates a change in stance for Reyes. Reyes said before he was indicted that Larry Sonsini, the firm’s top rainmaker, suggested Reyes be given the power to unilaterally grant options. After the indictment, though, Reyes’ attorney, Skadden, Arps, Slate, Meagher & Flom partner Richard Marmaro, said Sonsini was an “ethical giant” who gave only sterling advice.
We couldn’t ask whether there’s newfound friction between Wilson and Reyes because neither Phillips nor Marmaro could be reached by press time.
— Justin Scheck
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