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

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

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

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

“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.” “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 Must be express or implied consent No action on president’s personal behalf No action on president’s personal behalf

Warnings to Constituents Comment 8 to Rule 1.13 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.” “[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.”

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

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. 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.” 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.” 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.”

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...” “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...”

Confidentiality Applies to Entities Comment 3 to Rule 1.13 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.” “[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.”

Attorney-client Privilege Comment 20 to Rule 1.6 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.” “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.”

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

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

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 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.” 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. The protected communications can be between the client’s representatives and/or the client’s attorney.

Who is a representative? A representative of the client includes: A representative of the client includes: 1) “a person having authority to obtain professional legal services,” 1) “a person having authority to obtain professional legal services,” 2) a person having authority to act on the advice so obtained, and 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.” 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.”

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

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

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

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

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. 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.

Application to Entities Comment 2, in pertinent part 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. 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.

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

Managers of senior rank Managers of senior rank Before proceeding began Before proceeding began Disqualification appropriate Disqualification appropriate Statements suppressed Statements suppressed

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

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

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

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

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

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.” “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.”

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