This blog post is the fourth in a series on common ethical challenges that arise when preparing for and conducting depositions.
Quite often corporate employers want outside counsel to represent both the corporation and potential employee-witnesses during pretrial discovery depositions. Conflicts of interest are obviously lurking in these scenarios, although, in the case of current employees — particularly current management employees — the likelihood of an ethical misstep is small. In fact, a lawyer’s representation of current, highly placed corporate employees will have the effect of protecting with attorney-client privilege information they provide to the corporation’s attorney.
Conflicts of interest are obviously lurking in these scenarios, although, in the case of current employees — particularly current management employees — the likelihood of an ethical misstep is small.
The real problems arise when a corporation’s attorney seeks to represent both the corporation and former employees who may possess information adverse to the corporation and may even be facing personal liability themselves. Leaving ethical issues aside for the moment, former employees can be difficult to locate. The recently departed, “dropped off the face of the earth” employee is commonplace. Workplace turnover is historically high today, and people are more mobile than ever. Add to these factors the further fact that litigation backlogs make it increasingly likely that the former employees will be well out of reach by the time the need for their testimony is identified. (Many litigation experts advise employers to consider whether soon-to-be-departing employees have information that could be helpful in litigation — and, if so, to interview them while they are still employees or soon thereafter.)
Assuming that the corporation can track down the former employee, several ethical rules come into play whenever a corporation believes that its lawyer should also represent the former employee. But beware: Mishandling of any one of these rules could result in disqualification.
The recipe for ethically representing a nonparty witness at a deposition in a case in which the lawyer also represents a party (usually a corporate employer) has four ingredients:
- Limited Scope Representation. Representing the witness during a deposition could be a “limited scope representation,” meaning that the lawyer would provide some, but not all, of the legal services that attend a traditional lawyer-client relationship. “Limited representation” could include no more than a pre-deposition preparation session and legal advice on whether the witness’s testimony could subject him or her to criminal or civil liability. Any limitations on the usual attorney-client relationship would have to be reasonable under the circumstances.
- Is There a Conflict? Can It Be Waived? The lawyer should next consider if representing the witness creates a conflict of interest with the corporate client. If so, and if the conflict can be waived, the lawyer must obtain signed, written conflict waivers from both the witness and the corporate client. The lawyer’s ethical obligation to inform both clients about the possibility that conflicts of interest may arise, to independently monitor the case for conflicts of interest, and to address these conflicts continues throughout the litigation.
Even though it is not necessarily an ethical violation for a corporation’s lawyer to also represent an employee witness at a deposition, in reality, most witnesses likely possess information that is unfavorable to the corporation’s case, thus creating a strong potential for a conflict of interest. It can be very difficult for the lawyer to determine the witness’s full knowledge before the deposition.
Finally, if a conflict arises, it can be waived only if the witness gives informed consent to representation despite the conflict. Informed consent means that the witness must be advised of all of the negative consequences that could occur as a result of his or her testimony.
- Sharing Confidential Information. Both clients — the witness and the corporation – have a right to material information relevant to the case. This means that if one client shares material, confidential information with the lawyer, then it is incumbent on the lawyer to share that information with the other client.
- No Improper Solicitation. Finally, when communicating with the deposition witness about the prospective representation, the attorney must comply with the ethical rules governing the solicitation of clients. Generally speaking, communications with witnesses who do not have as their primary purpose an offer of representation will not be considered unethical solicitations. This is usually the case. Contacts with deposition witnesses are typically made out of a desire to render competent representation to a current corporate client, not to generate new business for the lawyer.
In practice, it is usually the corporation, not the lawyer, that approaches the witness with an offer to provide legal representation.
Lawyers interested in diving deeper into this topic should consult their local bar associations for guidance specific to their jurisdiction, as well as the following leading bar association opinions on ethical issues that arise when an attorney seeks to represent at a deposition a corporate or government entity and one (or more) of their employees:
Further Reading
This blog frequently features content on legal issues arising at the intersection of technology, deposition practice, and professional ethics. Recent posts include:
