Bruce Hamlin authored an article titled “If One Client Is Good, How About Two?” in DRI Lawyers’ Professionalism and Ethics Committee’s newsletter Professionalism Perspectives, Vol. 19, Issue 2. The article outlines defending non-party witnesses at depositions and how corporate defense counsel will often represent employees or former employees in addition to the defendant. Hamlin states joint representation can be done; however, it should be undertaken carefully, particularly as it relates to the “No Contact” Rule and recent decisions made by the Eastern District of Tennessee and ethical opinions of the New York City Bar Association.
Hamlin concludes the article by providing several questions to consider before deciding to represent more than just the defendant:
To return to the corporate defense counsel’s moment of decision—do I represent just the defendant, or a number of former employees—and if so, only during the non-party witnesses’ depositions, or for a more extended time? Defense counsel needs to consider several issues. Do the interests of the witnesses and the corporate defendant differ? Do I need informed consent? And, is it appropriate for me to take a blanket offer of representation to everyone who receives a subpoena?
Treading carefully here, with due regard for the rules of the road in the relevant jurisdiction, is the best practice.
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