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When W. Thomas Haynes was reorganized out of his job as general counsel for The Coca-Cola Co. subsidiary Coca-Cola North America in 2001, the company gave him its blessing to take a position as executive director of The Coca-Cola Bottlers’ Association. Jeffrey Dunn, then CEO of Coke’s North American and South American subsidiaries, gave Haynes written reassurances that the bottlers association position didn’t pose a conflict, with the exception of several specific legal matters in which Haynes agreed not to participate. Coke was so supportive of Haynes’s move that it issued a news release in which Dunn said he was “pleased” that Haynes would “continue his leadership in the Coca-Cola family.” Five years later, all such magnanimity has vanished. A King & Spalding lawyer who represents Coke has accused Haynes of violating his “professional and ethical obligations as an attorney.” Coke has offered, without success, to pay Haynes to leave the bottlers job and has said it is prepared to seek sanctions against him. Haynes argues that many of the matters he worked on during 16 years as a Coke in-house lawyer constituted business � not legal � advice and therefore were not covered by attorney-client privilege. Haynes also points to written agreements he secured from Coke that he said limit his obligations regarding disclosure of company business. Scholars are divided on the issue. According to University of Georgia School of Law professor C. Ronald Ellington, if the executive director of Coke’s bottlers association, which is based in Atlanta, offers legal advice to Coke bottlers, he will run afoul of Georgia’s professional ethics standards. But professors at three other Georgia law schools � Georgia State University College of Law, Emory University School of Law, and the Walter George School of Law at Mercer University � disagree with Ellington’s assessment, which he offered on behalf of The Coca-Cola Co. Those scholars � at the request of the bottlers’ association � filed declarations opining that Coke executives, in a series of documents, may have waived attorney-client privilege that otherwise would have barred Haynes from giving legal advice to the association. The four law professors joined the debate over Haynes’s professional ethics as part of a federal suit against Coca-Cola and its consolidated bottling arm, Coca-Cola Enterprises Inc. That suit, Ozarks Coca-Cola v. The Coca-Cola Co., originally filed in U.S. District Court in Missouri, was transferred to federal court in Atlanta in April. At issue is whether the company can bypass the bottler distribution network and deliver Powerade directly to retailers. The ethics dispute spilled into that litigation in June, when Coke lawyers at King & Spalding moved to have Haynes disqualified as counsel for the bottlers. While Haynes, as part of his job, often gives bottlers legal and contractual advice, he is not counsel of record in the pending suit. The bottlers are represented by Atlanta’s Powell Goldstein. Coke’s disqualification motion seeks to bar Haynes from providing any information to the bottlers gleaned from his tenure at Coke. The motion also seeks to prohibit him from providing any testimony. Citing Georgia bar rules, Ellington � hired by Coke attorneys at $500 an hour � said in his affidavit that Haynes, “as a former lawyer for Coca-Cola, owes a continuing duty to maintain the confidentiality and not to reveal information acquired by him while [he] was a lawyer for Coca-Cola, whether or not in his current role he is acting as an attorney for the plaintiff bottlers.” Ellington also said that a conflict-of-interest waiver letter executed June 13, 2003, by Haynes and Coke lawyers was null because it was predicated on an agreement that Haynes would not act as a lawyer for the bottlers. But Emory University law professor Timothy Terrell disagreed, noting in his declaration that Coke lawyers have offered no ethical foundation for barring Haynes from the pending litigation. The bottlers retained Terrell as an expert for $375 an hour. Terrell suggested that the dispute is contractual and stems from a series of written agreements in which Coke waived certain possible conflicts of interest involving Haynes. Terrell also pointed out that the scope of an attorney’s continuing duty to keep information obtained during a prior employment confidential can be modified by “explicit or implicit consent” of the client. Georgia State law professor Roy Sobelson, also hired by the bottlers, suggested that Ellington failed to consider the possibility that Coke had “by its actions and statements, given its consent to Mr. Haynes’s use of some information he may have gained in his relationship with Coca-Cola.” Sobelson also chided Coke lawyers for failing to identify “any specific instance in which Mr. Haynes has revealed or is likely to reveal any protected confidential information.” A version of this article first appeared in Fulton County Daily Report, a sibling publication of Corporate Counsel.

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