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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Thursday, December 28, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    60 minutes

Credit Information

  • This 60-minute webinar is eligible in most states for 1.0 CLE credits.

  • An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.

$297.00
CLE
ALL

This CLE webinar will guide outside litigation counsel through the practicalities and applicable ethical rules for avoiding disqualification when they are asked to represent the client as well as the client's members, officers, directors, or employees in the same matter or in depositions. The panelist will also discuss strategies and solutions for anticipating potential conflicts when a key employee-witness leaves the company.

Faculty

Bradley R. Hutter
Shareholder
Fafinski Mark & Johnson, PA

Mr. Hutter represents business clients in litigation arising out of complex commercial transactions, fiduciary relationships, and business insolvencies. He has represented a diverse set of clients from the banking, real estate, retail, transportation, construction, and aviation industries. Mr. Hutter’s experience includes defending multiple-plaintiff and putative class action claims in federal court. He is a former Assistant Attorney General in the Minnesota Attorney General’s Office and draws on this experience to advise businesses facing enforcement actions or investigations, as well as clients considering affirmative litigation against the government. He also brings his government experience to bear when clients find themselves in business disputes that are made riskier or more complicated by a regulatory or administrative law issue. Mr. Hutter is also a co-leader of FMJ’s E-Discovery practice group.

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Description

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 Bradley R. Hutter, Attorney at Fafinski Mark & Johnson, 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.

Outline

  1. Relevant Model Rules of Professional Responsibility (MR 1.13, 4.3, 4.4)
  2. Representing the company and its owners or management
  3. Client employee depositions
  4. Foreseeing departing employee testimony
  5. Recent cases

Benefits

The panelist 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?

An encore presentation featuring Live Q&A.