For the Defense - Vol. 8, Issue 1 - 14

Jump into the Pool:
Representing Multiple
Witnesses in an Investigation
Ellen C. Brotman
O
ver the past twenty years, government agencies and
regulators have expanded their investigations of corporations
across a broad spectrum of industries. These investigations of
corporate wrongdoing have created a booming industry for big firm
white-collar lawyers representing publicly traded corporations. As a
corollary to this boom, small-firm and solo lawyers have taken on
the role of what has become known as " pool counsel. " Pool counsel
represent " pools " of witnesses involved in the same investigation.
These " pools " are, ideally, comprised of employees who have no
criminal exposure and have similar levels of involvement in, and
information about, the subject of the investigation.
Pool representations are economical for the individuals and the
company. These representations also provide efficiency for the
government investigators by having one point of attorney contact
with a broad understanding of the matter. Despite these benefits,
pool representation is fraught with the dangers of conflicts,
disqualification, and violation of client confidences. To avoid these
dangers, pool counsel must be aware of the ethical rules that apply
and lay the groundwork to avoid them.
Of course, the first question with any concurrent representation
is: will the proposed representation involve a prohibited concurrent
conflict of interest? For example, will one member of the pool
14 For The Defense l Vol. 8, Issue 1
provide either direct or circumstantial evidence implicating another
member? Or will the recollections of the pool members clash, raising
credibility concerns for the potential clients? Are any of the pool
members eligible for testimonial immunity and how will that affect
the other members of the pool?
Rule of Professional Conduct 1.7 governs this analysis. Rule 1.7 (a)
prohibits a " concurrent conflict of interest " if:
1. the representation of one client will be directly
adverse to another client; or,
2. there is a significant risk that the representation of
one or more clients will be materially limited by the
lawyer's responsibilities to another client, a former
client or a third person or by a personal interest of
the lawyer.
The existence of a concurrent conflict is not the end of the analysis.
Rule 1.7 (b) and Comment 2 must be consulted to determine whether
the conflict is " consentable. " Rule 1.7 (b) permits the representation
if:
1. the lawyer reasonably believes that the lawyer will be
able to provide competent and diligent representation

For the Defense - Vol. 8, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 1

Contents
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For the Defense - Vol. 8, Issue 1 - Contents
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