Concurrently and Ethically Representing Companies, Owners, and Employees in the Same Matter
Strategies for Avoiding Disqualification, Honoring Client's Choice of Counsel, and Managing Privilege and Work Product

Course Details
- smart_display Format
Live Online with Live Q&A
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Class Action and Other Litigation
- event Date
Tuesday, June 17, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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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.
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 panel will also discuss strategies and solutions for anticipating potential conflicts when a key employee-witness leaves the company.
Faculty

Mr. McCabe is a registered patent attorney with 20 years of experience representing foreign and domestic entities and individuals across a wide array of technologies in patent and trademark matters before the federal courts and the USPTO. He also represents practitioners involved in claims of professional misconduct, attorney discipline, and ethics matters before the Office of Enrollment and Discipline of the USPTO and the state bars of Maryland, Virginia and the District of Columbia. Mr. McCabe is a former adjunct professor of law at George Mason University School of Law.

Ms. Manning has over two decades of experience in complex commercial litigation at both the trial and appellate levels. She has developed a successful track record of trial verdicts and settlements, especially in complex matters. She also has a reputation as a strategic, thoughtful, and fearless advocate for all of her clients. Ms. Manning is also an accomplished appellate lawyer who has participated in six matters before the New Jersey Supreme Court, including arguing four times. She is an avid presenter and author on business litigation, legal ethics, products liability, and professional liability. Ms. Manning is the author of the New Jersey Chapter of The Law of Lawyer’s Liability: Fifty-State Survey of Legal Malpractice, ABA/First Chair Press, which provides an overview of the laws governing attorney malpractice in each state.

Mr. Sullivan’s extensive experience in representing law firms of all sizes allows him to understand claims raised by aggrieved clients and work with firms to respond to and resolve those claims informally or, when necessary, through litigation. Since joining the firm in 2005, he has focused his practice almost exclusively on law firm defense. Mr. Sullivan has defended attorneys in state and federal courts, resolving claims at the pleading stage, summary judgment, mediation, trial and arbitration. During this time, he also has represented attorneys in State Bar matters, advised firms regarding partnership disputes, and prosecuted fee claims. Mr. Sullivan also counsels firms on liability and ethics issues. He currently serves as the Chair of the San Francisco Bar Association Legal Malpractice Section. Mr. Sullivan frequently presents on professional liability topics and has also been asked to comment for publications on California Court of Appeal decisions relevant to ethics and professional liability.
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 our panel 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
I. Relevant Model Rules of Professional Responsibility (MR 1.13, 4.3, 4.4)
II. Representing the company and its owners or management
III. Client employee depositions
IV. Foreseeing departing employee testimony
V. Recent cases
Benefits
The panel 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?
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