Defending the Company Plus Its Employee

Guidelines for a Shared Counsel

The ABA Corporate Responsibility Task Force Report recommends permitting lawyers more often to reveal confidences of corporate clients to persons outside of the organization.. The reasoning and research point the way for a lawyer to go to prosecutors with corporate information when greed runs rampant.

When a corporation is sued for the acts of an employee, the corporation or its insurer often ask the defense counsel to defend both the corporation and the employee. It certainly is more cost efficient for the corporation or insurer to only have one attorney handle the matter as joint defense. Frequently the employer wants to control the defense of the employee, so that a unified and powerful defense is raised to the claim. From sad experience, the company may have learned that the employee with a separate attorney often has a less then desirable defense, harming the company’s defense by stupid disclosures or maneuvers. Frequently the employee’s desire for joint defense arises because the employee has no insurance; naturally, the employee thinks it wonderful that the company-paid attorney is also “his” attorney. Furthermore, as we all know, the employee usually wrongly assumes you as the company attorney are also “his” attorney for the defense of any corporate activity. That is why you always start out your conference with the employee by telling him/her that you are not their attorney and they should not tell you anything they want to keep confidential. (Right? That is what you do, isn’t it?)

It is technically possible (and in most cases, ethically possible if sufficient precautions are taken and consents signed) to have one attorney represent both the corporation and the employees. Specific guidelines clearly and comprehensively analyzing what the attorney should do in joint representation situations have been scarce. . . .Read the Full Article in PDF format