Ethical Issues in Employment Litigation: Joint Representation, Conflicts, Privilege, Third-Party Payment

Employment litigators often face unique ethical questions when representing employers and employees in lawsuits. Given the nature of the employer/employee relationship and proximity to evidence--with employers having access to employee documents on employer-owned devices, where witnesses for both parties may come from the same pool of present and past employees, and where joint representation may occur when representing employer and employee co-defendants--employment litigators should understand potential ethical issues and how to avoid pitfalls.

Joint representation of employer and employee defendants is a key area where ethical questions arise. Model Rule 1.7(b) allows for joint representation under certain circumstances. In the employer/employee context, joint representation can be beneficial in several ways including cost of defense and practical efficiencies such as easier access to company policies, documents, and witnesses; as well as presenting a united front between employer and employee should the case proceed to trial. However, an employer's and employee's interests may very quickly become adverse so that joint representation is ill-advised.

Among other critical ethical issues litigators face in the employment arena are confidentiality, document handling where employer counsel may have access to confidential or privileged employee documents, and communicating with current and past employees.

Listen as our panel discusses the ethical issues that frequently arise in employment litigation and explains how attorneys can effectively navigate ethical challenges and act in the best interests of their clients.

• Introduction
• Ethical issues in employment litigation and applicable rules of professional conduct
  • Joint representation of employer and employee
  • Third-party payment issues: when an employer pays for an employee's representation
  • Conflicts agreement/disclosures - representing multiple plaintiffs
  • Confidentiality and disclosure issues
    • Duty to preserve evidence
    • Inadvertently disclosed documents
    • Access to employee confidential or privileged communication on company devices
  • Preparing deposition witnesses
  • Ex parte communication between plaintiff's counsel and employer's current and former employees
  • Settlement issues
  • Others
• Practitioner takeaways

The panel will review these and other important considerations:

• How does the employer/employee relationship raise unique ethical issues for litigators?
• What are key ethical concerns employment litigators face when representing the employer? A defendant employee? The plaintiff employee?
• What rules of professional conduct govern the ethical considerations that arise during employment litigation?