Ethical dilemmas

• Author: Laura M. Franze
• Pages: 1563-1588

ETHICAL

DILEMMAS

37-1

CHAPTER 37

ETHICAL DILEMMAS

BY LAURA M. FRANZE

37:1. CHAPTER HIGHLIGHTS

37:2. ATTORNEYCLIENT PRIVILEGE

A. Timeliness of Plaintiff’s Charge of Discrimination

B. Organizational Clients

1. Federal Rule of Evidence 501 and Upjohn Test

2. Texas Rule of Evidence 503

a. “Control Group” Test

b. “Subject Matter” Test

3. Organization as Client

C. Lawyer as Business Advisor

37:3. JOINT REPRESENTATION

A. Basic Points

1. General Rule

2. Advantages of Joint Representation

3. Disadvantages of Joint Representation

B. Relevant Authority

1. ABA Model Rules

2. ABA Model Code

3. Texas Disciplinary Rules of Professional Conduct

4. Duty to Provide Defense

C. Privilege Issues in Joint Representation

1. Joint Defense Doctrine

2. Attorney-Client Privilege Af ter Termination of Joint Representation

3. Waiver of Attorney-Client Privilege

4. Work Product Doctrine

D. Accepting Joint Representation

1. Evaluate Actual vs. Potential Conf‌licts

a. General Rule

b. Examples of Potential Conf‌licts

(1) Sexual Harassment Aff‌irmative Defense

(2) Employee Acted Contrary to Employer’s Efforts

(3) Outside Scope of Employment

(4) At torney Ownership Interest In Corporate Defendant

ETHICAL

DILEMMAS

Texas Employment Law 37-2

(5) Class Actions

c. Determine Whether Conf‌lict Exists

2. Obtain Written Consent

3. Deal Effectively With Conf‌licts as They Arise

4. Continuing Representation vs. Withdrawal

37:4. WHEN A WITNESS COMMITS PERJURY

A. Lawyer Knows Evidence to Be False

B. Lawyer Reasonably Believes Evidence to Be False

37:5. LAWYER AS WITNESS

37:6. COMMUNICATIONS WITH CURRENT AND FORMER EMPLOYEES

A. Relevant Authority

1. ABA Model Rule 4.2

2. ABA Model Code

3. Texas Disciplinary Rules of Professional Conduct

B. Ex Parte Contact With Current Employees

1. ABA Model Rule

2. Texas Rule

3. Class Members

C. Ex Parte Contact With Former Employees

1. ABA Rule

2. Texas Rule

37:7. INADVERTENT DISCLOSURE OF DOCUMENTS

A. Waiver of Privilege for Producing Privileged Documents

1. Texas Rules

2. Federal Rules

3. Returning Privileged Documents

4. Use of Inadvertently Produced Documents and Disqualif‌ication of Counsel

5. Metadata

APPENDIX

Appendix 37-1 Corporate Ethics Policies