Legal Ethics in the Employment Law Context: Who is the Client?

1. Legal Ethics in the Employment Law Context: Who is the Client? Ariana R. Levinson

2. Kentucky Rule 1.13(a) “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”

3. Constituents • Comment 2 to Rule 1.13 • Constituents of corporation: “officers, directors, employees and shareholders.” • Constituents of unincorporated associations: “positions equivalent to officers, directors, employees and shareholders.”

4. Innes v. Howell Corp., 76 F.3d 702 (6th Cir. 1996) • Corporate attorney • President named in an environmental action • May have been subject to personal liability • Attorney defended action • Investigated president – discovered alleged kickbacks • Informed parent corporation • President terminated

5. “The law is generally settled that an attorney for a corporation does not automatically represent the corporation’s constituents in their individual capacities, even on the same matters.” • Must be express or implied consent • No action on president’s personal behalf

6. Warnings to Constituents • Comment 8 to Rule 1.13 • “[W]hen the organization’s interest may be or become adverse to those of one or more of its constituents” the lawyer should advise the constituent that “the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation.”

7. Union representation • No Kentucky or Sixth Circuit authority • Analogize to Innes • Other jurisdictions • no malpractice for representing union (p. 5) - no disqualification (p.6.) • Contrary authority

8. Kentucky Rule 4.3 • In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. • The current ABA Rule 4.3 adds a further requirement. “The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” • Proposed Kentucky Rule 4.3 would substitute, “The lawyer shall not give legal advice to an unrepresented person. The lawyer may suggest that the unrepresented person secure counsel.”

9. Kentucky Rule 1.6(a) • “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . . .”

10. Confidentiality Applies to Entities • Comment 3 to Rule 1.13 • “[W]hen one of the constituents . . . Communicates with the organization’s lawyer in that person’s organizational capacity, the communication is protected by Rule 1.6.”

11. Attorney-client Privilege • Comment 20 to Rule 1.6 • “If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable.”

12. Upjohn Co. v. United States, 449 U.S. 383 (1981). • General counsel learns may be bribing foreign officials • Consults outside counsel, chairman of board • Commences investigation • Chairman sends questionnaire to managers • Prepared by attorneys • Cover letter indicates part of general counsel’s investigation • Ask process be highly confidential • General counsel conducts interviews

13. Rule 501 “protects the giving of information to [a] lawyer to enable him to give sound and informed advice.” • Case specific inquiry • Factors indicate attorney-client privilege applies • Employees • To counsel, acting as such • Direction of superiors • To secure legal advice • Matters within corporate duties • Aware for purpose of legal advice • Instructed highly confidential

14. Kentucky Rule of Evidence 503 • A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client. • A client includes a “corporation, association, or other organization or entity.” • The protected communications can be between the client’s representatives and/or the client’s attorney.

15. Who is a representative? • A representative of the client includes: • 1) “a person having authority to obtain professional legal services,” • 2) a person having authority to act on the advice so obtained, and • 3) “an employee or representative who makes or receives a confidential communication” in the course of employment, concerning the subject of the employment, and to “effectuate legal representation for the client.”

16. Lexington Pub. Library v. Clark, 90 S.W.3d 53 (Ky. 2002) • Supervisor allegedly retaliated • Assistant director contacted attorney • Concerned about behavior and performance • Over forty • Health problems • Attorney suggests solicit comments • Solicits comments • Past observations of supervisor • Issues memo to supervisor • Supervisor responds • Supervisor terminated

17. Duties must be within scope of responsibilities • Not enough information • Duty to report v. observe • Past observations and evaluation • Legal not business purpose • Not enough information • Seeking advice from attorney not determinative • Employee must know for legal advice • Not enough information • Deciding whether to terminate • Communications with target cannot effectuate representation • Potential adverse litigant

18. Business v. Legal Purpose • Merrily S. Archer’s tips: • Initiate investigation without attorney involvement • Designate documents as prepared/reviewed as legal advisor • Underscore legal nature of investigation in policies

19. Union Assertion of Privilege • No Kentucky precedent • Officers and other employees = corporate analysis • Volunteer officers • “person having authority to act on advice so obtained” • significant relationship to corporation and transaction • Members • A few cases so extend Upjohn • union activity within course of employment? • Assume not covered

20. Kentucky Rule 4.2 • In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

21. Application to Entities • Comment 2, in pertinent part • In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. Prior to communication with a nonmanagerial employee or agent of an organization, the lawyer should disclose the lawyer’s identity and the fact that the lawyer represents a party with a claim against the organization. See Rule 4.3.

22. Shoney’s Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994) • Plaintiff’s sexual harassment attorney • Contacted human resources • Informed represented and provided name • Spoke with the attorney • Received letter confirming • Met with senior managers

23. Managers of senior rank • Before proceeding began • Disqualification appropriate • Statements suppressed

24. University of Louisville v. Shake, 5 S.W.3d 107 (Ky. 1999) • University notified plaintiff’s counsel not to interview or contact employees • Plaintiff’s counsel at party • Former chair of the University’s Board of Trustees at party • Spoke briefly • Spoke about deposition of another employee • That employee had testified chair had asked questions about the case • Plaintiff’s counsel stipulated not to use conversation

25. No disqualification • No great injustice or irreparable injury • Mandamus standard • Brief conversation • Collateral issues • No confidential information • Stipulated • No likely prejudice

26. Knowledge? • Carbon copying in-house counsel on a letter to plaintiff’s counsel does not indicate potential defendant is represented • Explicitly state name, address, and other contact information of attorney

27. Management? • Open issue in Kentucky • Western District of Michigan forbids contact with any managerial level employee

28. Meaning of Admissions • Evidentiary admissions • KBA Opinion E-382 implies any employee speaking about matters within the scope of employment • Binding admissions • Revised comment to ABA Rule 4.2

29. ABA Comment 7 • “In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

30. Tips • Felicia Ruth Reid suggest • 1) Disclose identity • 2) Be clear voluntary and may seek counsel • 3) Be sure not individually represented • 4) Refrain from asking about communications with entity’s attorney • 5) Conclude if discover covered by rule 4.2 • 6) When uncertain, resolve with opposing counsel or by court approval