Conflicts of Interest Arising from Multiple Representation

Pages85-107
85
CHAPTER 5
CONFLICTS OF INTEREST ARISING FROM
MULTIPLE REPRESENTATION
The same counsel often represents both a corporation and its
executives during an antitrust grand jury investigation. Although
multiple representation may be desirable or appropriate depending on the
circumstances, counsel must evaluate whether the interests of the
different clients’ conflict, or could conflict, as the investigation develops.
Sometimes the U.S. Department of Justice’s Antitrust Division
(Division) itself requests that a corporation find separate counsel for
certain individual executives who are, or may become, targets of its
investigation. But even where the Division does not affirmatively do so,
counsel should evaluate the benefits and risks of multiple representation,
the legal and ethical standards governing multiple representation, and the
legal and practical issues that a conflict may create for the lawyer, the
client, and the court.
A. The Benefits and Dangers of Multiple Representation
Justice Frankfurter once recognized, in a frequently quoted passage,
that there are advantages of having one attorney represent several clients
in the same matter: “Joint representation is a means of insuring against
reciprocal recrimination. A common defense often gives strength against
a common attack.”1 Nevertheless, ethical problems can arise from
representing two or more clients during the grand jury process,
depending on the specific facts and circumstances. Ethical issues, and
the risk that counsel may be disqualified from representing any clients,
can arise if relationships among the clients change. Defense counsel
must continually assess these shifting relationships. 2
Multiple representation often occurs during a grand jury
investigation and can be extremely beneficial for all concerned. At the
1. Glasser v. United States, 315 U.S. 60, 92 (1942) (Frankfurter, J.,
dissenting).
2. For further discussion, see Susan W. Brenner and Lori E. Shaw, FEDERAL
GRAND JURY: A GUIDE TO LAW AND PRACTICE § 22:6 (2d ed. 2020);
Sara Sun Beale et al., GRAND JURY LAW AND PRACTICE § 6:31 (2d ed.
2020); NYCBA Prof’l Ethics Comm., Formal Op. 2019-4 (2019).
Antitrust Grand Jury Investigations Handbook
86
initiation of a typical grand jury investigation, counsel begins working
with company officers and supervisory employees to determine which
employees should be interviewed and which records should be examined.
When employees are subpoenaed as grand jury witnesses, decisions are
made on whether the company’s attorney should represent each
employee for their grand jury appearance. Corporate counsel will
ordinarily at least interview employees called to the grand jury.
Corporate counsel may represent corporate employees to economize on
legal fees, to foster cooperation and sharing of information, and to
present a united defense.3
As the investigation progresses, interests may diverge in a number of
ways. Different employees may have differing degrees of culpability ,
and those who are more culpable may have an interest in either
defending themselves or earning a greater cooperation credit at
sentencing by pointing an accusatory finger at others. If the Division
believes that certain executives are potential defendants themselves, it
will typically request that the company retain separate counsel for those
employees.
Conflict of interest issues can even arise when a company has
applied for leniency under the Division’s Leniency Program.4 The
Division’s program offers two types of leniency: Type A and Type B.
Type A is only available when the Division has not received any
information about the collusive conduct. Type B, on the other hand, is
available even after the Division has received some information about
the activity in question.5 If a corporation qualifies for Type A leniency,
then all current directors, officers, and employees of the corporation who
3. Separate counsel may also be retained to provide joint representation to
multiple, similarly situated individual employees. Such arrangements are
often referred to as “pool counsel” representations. See NYCBA Prof’l
Ethics Comm., Formal Op. 2019-4 (2019) (noting that an organization
under scrutiny typically pays the pool counsel’s fees on behalf of
individual clients, even though it is not a client of pool counsel).
4. Corporations and individuals who report cartel activity and cooperate in
the Division’s investigation may avoid criminal conviction, fines, and
prison sentences if they meet the requirements of this program. See U.S.
Dep’t of Justice, Antitrust Division Leniency Policy and Procedures (Apr.
4, 2022), available at https://www.justice.gov/atr/page/file/
1490246/download; U.S. Dep’t of Justice, Frequently Asked Questions
About the Antitrust Division’s Leniency Program (Apr. 4, 2022)
[hereinafter Leniency FAQs], available at https://www.justice.gov/
atr/page/file/1490311/download.
5. See Leniency FAQs, supra note 4, at 7.

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