Concurrently and Ethically Representing Companies, Owners, and Employees in the Same Matter

When a business is sued, outside counsel often faces two potentially but common disqualifying scenarios. First, if counsel has a history with the client, and the suit is brought by members or shareholders, the same lawyer or firm is routinely asked to represent them all. Furthermore, even sophisticated owners can fail to understand that counsel for the company is not, by default, their personal lawyer.

Traditionally, courts have required separate counsel except in superficial cases. But courts are more frequently rejecting a rigid approach in favor of assessing the context to determine if the parties' interests are actually aligned. The factors considered vary by type of case.

Second, it is quite common for outside counsel to be asked to "represent" an employee witness at deposition. Whether outside counsel can or should represent is a more complex question than first appears. Counsel must consider the effect of doing so on attorney-client privilege, work product protection, and trial strategy. The dynamics between the unrepresented and represented company witness are entirely different--and things get more complicated if the witness is a former employee.

Listen as our panel guides outside litigation counsel through the practicalities and applicable ethical rules to avoid disqualification when they are asked to represent both a company and its member, officers, directors, or employees in the same matter or in depositions.

I. Relevant Model Rules of Professional Responsibility (MR 1.13, 4.3, 4.4)

II. Representing the company and its owners or management

III. Client employee depositions

IV. Foreseeing departing employee testimony

V. Recent cases

The panel will review these and other issues:

• What is "serious wrongdoing" for purposes of disqualification from representing owners/management and the entity?
• Must an attorney deal with company employees as unrepresented persons under Model Rule 4.3?
• Is the employee who is represented by the company's lawyer at a deposition simply an accommodation client?
• What is the proper way for a corporate client to offer to cover the costs of a current or former employee's representation during a deposition?