For the Defense - Vol. 7, Issue 3 - 52
Best Practices for Addressing
Ethical Issues When Representing
an Organization in a Criminal or
Internal Investigation
R
epresenting an organization-whether that
organization is a non-profit entity, a public company,
or a small business-can be a labyrinth of complex
and sometimes unexpected ethical issues. The issues in
a criminal investigation or an internal investigation of
alleged criminal misconduct can be particularly difficult
to navigate. An organization will likely hire counsel when
the entity is facing allegations of wrongdoing or when
it is suspected that an organization could be a victim of
misconduct by an " insider. " It is the job of counsel for the
organization to navigate the complex ethical issues that
arise in such a representation.
One of the first tasks for counsel for the organization
is to determine if the organization's directors, officers,
employees, members, shareholders, or other individuals
associated with the organization need separate
representation - an analysis which should continue, and
which can change during the course of the representation.
Such an analysis requires a certain amount of foresight
in predicting potential conflicts of interest and other
issues that have not yet materialized. The analysis largely
revolves around whether the individual's interests are
52 For The Defense l Vol. 7, Issue 3
currently aligned with those of the organization and
under what circumstances their interests will no longer be
aligned. The Pennsylvania Rules of Professional Conduct
should be followed and can be helpful in such an analysis,
but the analysis is so fact-specific that the Rules are not
always easy to interpret and apply.
When dealing
with unrepresented individuals,
This ensures that there is
counsel for the organization should deliver a clear and
comprehensive Upjohn Warning.2
no confusion among unrepresented individuals regarding
who counsel represents and when and by whom the
attorney-client privilege can be waived.
The goal of this article is to flag issues that may arise
in the representation of an entity and to provide general
guidance on how to tackle those issues.
Establishing and Disclosing the Identity of the Client
Since corporations and other organizations are legal
fictions, they cannot act except through their agents.
Additionally,
decisions
are made on behalf
of
the
Jana Volante Walshak1
For the Defense - Vol. 7, Issue 3
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