Making the Most of a Contractual Advice‑of‑Counsel Defense

When a situation arises in which an investment manager’s conduct or decision making could be subject to question – including in litigation or a regulatory investigation – the investment manager may seek outside advice from legal counsel, accountants and other professionals. In addition to the obvious benefits of that advice when determining the appropriate course of action, an investment manager also may wish to put itself in a position to take advantage of a provision routinely found in various fund documents that provides for exculpation or other limitation of liability for the manager (and sometimes others) if it consults with and acts pursuant to the advice of those outside professionals. Such a provision, however, will provide a defense to liability only when all applicable contractual and legal requirements are met; compliance with the requirements is documented and disclosed; and the defense is timely asserted. In a guest article, Anne E. Beaumont, partner at Friedman Kaplan Seiler & Adelman, highlights typical requirements of so-called “advice-of-counsel” provisions, as well as other legal requirements that frequently apply, and suggests measures for investment managers to consider to obtain maximum possible protection from a contractual advice-of-counsel defense. For additional insights from Beaumont, see “How Advisers Can Prepare for OCIE Exams on the Transition From LIBOR” (Jul. 9, 2020); “Key Considerations for Private Fund Investors Navigating the Coronavirus Crisis” (Apr. 23, 2020); and “Does the Digital Realty Decision Represent a Sea Change for Whistleblowers or Merely More of the Same?” (Mar. 15, 2018).

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