For the Defense - Vol. 8, Issue 1 - 15

to each affected client;
2. the representation is not prohibited by law;
3. the representation does not involve the assertion of a
claim by one client against another client represented
by the lawyer in the same litigation or other
proceeding before a tribunal; and,
4. each affected client gives informed consent.
Comment 2 to Rule 1.7 advises the lawyer to determine " whether
the representation may be undertaken despite the existence of
a conflict, i.e., whether the conflict is consentable. " A conflict is
" consentable " only if " the lawyer reasonably believes that the
lawyer will be able to provide competent and diligent representation
to each affected client. " If the lawyer believes that, they can explain
the nature of the conflict to the client, why it is not disqualifying,
and seek the client's informed consent to continue with the
representation.
" Informed consent " is defined in RPC 1.0(e) as " the consent by
a person to a proposed course of conduct after the lawyer has
communicated adequate information and explanation about
the material risks of and reasonably available alternatives to the
proposed course of conduct. " I note that neither Rule 1.7(b) nor
Rule 1.0(e) require that informed consent be in writing. However,
I
strongly advise that whenever a client's informed consent is
required-get it in writing.
Another danger in representing multiple witnesses, and one
that directly relates to the question of whether a conflict is
consentable, is the effect of multiple representation on client
confidences and the risk of violating Rule 1.6. As you interview
each client, you will inevitably learn information that will affect
other clients-information that you cannot unlearn. Your duty
to represent each witness competently, as required by RPC 1.1 as
well as your duty to keep each client informed, as required by RPC
1.4, may require you to " use " this information to another client's
benefit. Because of the nature of the " pool " representation, the
client must be willing to consent to this use or they cannot be part
of the pool. Such consent is not revokable.
Obviously, this is vastly different from an individual representation
when everything you learn about the client is confidential
information which you are prohibited from sharing. Before taking
on each representation, make sure that each client understands
how you may use, or disclose to other clients within the pool, the
client's confidential information. With respect to the use of such
information, each client must understand that you will be able to
use his or her confidential information to the benefit of all pool
clients.
As to the disclosure of client confidences there are essentially
two choices. One, the client can agree that the attorney has the
discretion to determine which confidences will be disclosed. This
agreement waives privilege as between this client and the other
clients as to these disclosures. This also creates a risk that this waiver
may be invoked in a later civil or criminal proceeding. This risk must
be disclosed to each client prior to taking on the representation.
Alternatively, the client can require the attorney to obtain the
disclosing client's consent before sharing any confidence with other
pool clients. However, where a client forbids the disclosure, and that
disclosure is necessary to the effective representation of another
client, a conflict has emerged which requires withdrawal from the
representation of one or both clients.
So now that we know the issues, how do you determine, whether
the proposed clients comprise a pool that is permissible now and
will endure through the investigation? Before you agree to take
on any representations, and before you even interview potential
clients, get as much information as you can from company counsel,
investigating counsel, and from publicly available documents. At the
least, you want to know where your clients are in the company's
organizational chart, how long they have been at the company, what
their specific role in the investigation is, whether the government
has sought to interview them yet, whether any documents for which
they have been the custodian have been turned over and whether
those documents will be shared with you.
Of course, neither a " target " nor a " subject " of an investigation
is a candidate for pool counsel. Any individual with a real risk of
potential criminal liability should have their own counsel. Generally,
you want a group at the same level of authority; you don't want
lower-level individuals who will be pointing figures at the higherlevel
individuals in your group or vice versa. You also want to
know if the company counsel has had any communication with the
government as to whether a " pool " approach will be permissible
for certain groups of witnesses. If this hasn't happened yet, you
can suggest that company counsel take that step before the client
interviewing process begins.
While some lawyers conduct initial meetings with the pool as a
group, I do not recommend this. It is safer to conduct interviews with
each client separately. These interviews must ensure that enough
information is gathered to determine whether the individual can
be part of the pool. But remember that each client interview is
governed by Rule 1.18. This Rule states that, " (e)ven when no clientlawyer
relationship ensues, a lawyer who has learned information
from a prospective client shall not use or reveal information which
may be significantly harmful to that person, except as Rule 1.9
would permit with respect to information of a former client. " Thus,
you are treading the narrow path between finding out enough to
determine conflicts, without eliciting disqualifying information at
the start. Before the interviews are conducted, start by getting each
client's permission to tell the other clients who the members of the
proposed pool are, as they are known at the outset. Because of the
Rule 1.18 limitations, you will also need the individual's informed
consent to use the information you learn in the initial interview in
the later representation and to share it with the other members, if
necessary. If the prospective client balks at this, that raises a red flag
that may exclude that person from the pool.
In the initial interview, your most important job is to explain the
risks and benefits of the pool representation, emphasizing the risks.
You must err on the side of caution in doing this. Do not fear being
repetitious to ensure that the potential client fully understands.
Vol. 8, Issue 1 l For The Defense 15
For the Defense - Vol. 8, Issue 1

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