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Opinion date: Feb. 1, 2002

Ethics issue presented:

May the Inquirer who is in-house counsel for an entity also represent an employee of the entity? May the Inquirer represent the employee if the Inquirer is precluded from revealing confidential information from the entity?

Facts as presented by Inquirer:

Inquirer is in-house counsel for a corporation. One of the client's employees ("Supervisor") was directed by the client to terminate the employment of a subordinate ("Ex-employee") for misconduct reasons. Ex-employee filed a complaint against Supervisor with an ethics board ("Board") which has the authority to sanction these professional employees. At the request of the client, Inquirer is representing Supervisor in defense of the ethics complaint. The Board sanctioned Supervisor for allowing Ex-Employee's employment to continue as long as it did. Inquirer appealed the sanction of the Supervisor. An attorney representing the Board told Inquirer that Inquirer has a conflict of interest and cannot represent Supervisor because: (1) Supervisor's defense is that the timing of the termination was ordered by the corporation, which could expose the corporation to liability; and (2) Supervisor is not permitted to disclose to third parties (i.e. the corporation) the confidential proceedings of the Board. Inquirer has discussed with the corporate client and Supervisor the dual representation and both consented. Corporation already acknowledged to the Board that it directed the timing of the firing. The corporation already knows the outcome of the Board proceeding because the Supervisor disclosed it.

Advice given:

The discussions with the corporation and Supervisor satisfied the requirements of Rule 1.13(e) regarding dual representation. The corporation's and Supervisor's interests are aligned, and both clients consent to the representation, which satisfies Rule 1.6 and 1.7. The confidentiality of the Board's proceedings is for the protection of Supervisor and is waiveable by Supervisor.



Ethics issue presented:

Must the Inquirer report a client's fraudulent actions which occurred prior to Inquirer's representation?

Facts as presented by Inquirer:

At Inquirer's request, Inquirer's associate interviewed a client to determine whether or not to represent the client in a personal injury action. The client is currently receiving workers' compensation benefits as a result of the same accident. The benefits were obtained without the assistance of counsel. The client confided in the associate that the client lied about the location of the accident in order to obtain the workers' compensation benefits. The client is almost ready to return to work. The associate reported this to the Inquirer who decided not to take the personal injury case. Inquirer's question was whether Inquirer had a duty to report the apparent fraud.

Advice given:

The Inquirer was advised that Inquirer could not reveal the information under Rule 1.6. The exceptions under Rule 1.6(c) would permit (not require) Inquirer to reveal the information, but only in those instances enumerated under the Rule. Inquirer determined that none of these exceptions applied. If it were a criminal act, it was a past act, so 1.6(c)(1) did not apply. Additionally, the client was almost ready to return to work, and the lawyer's services had not been utilized to obtain the workers' compensation benefits, so 1.6(c)(2) is not applicable.


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