Lawyer Peg Sheahan ()
For more than 34 years, I’ve been practicing employment law in Connecticut. For about 30 of those years, I routinely identified myself as a management-side employment lawyer. However, I don’t do that anymore because it’s not true.
I represent management—employers—and employees—individuals. This is a startling fact for many practitioners in the field.
“How could you?” is a reaction I have heard from colleagues still in the management-only field.
“Glad you’ve left the dark side,” said a colleague who represents only employers.
I recognize my current practice differs from a long-standing norm. I don’t believe the tradition makes much sense anymore.
First, of course, there is no ethical ban to representing management in some cases and employees in others, provided there is no conflict specific to the parties in a given case or from a prior representation’s disclosure of confidential information.
Second, the experience of representing parties from opposing constituencies is commonplace in the vast majority of legal practice. Real estate lawyers represent buyers and sellers. Land use lawyers sometimes defend and sometimes challenge zoning and permitting requirements. Mergers and acquisitions lawyers sometimes have the buyer’s side and sometimes the seller’s. Divorce lawyers represent husbands and wives, plaintiffs and defendants. Our general litigation colleagues regularly find themselves on opposite sides of the same legal issue. Why should employment law be different?
In part, I believe this tradition of representing one side or the other exclusively arises from employment law’s roots in labor law. To the uninitiated, this distinction may sound like mere semantics, but that is not the case. Labor law concerns the relationship between management and organized (or organizing) labor unions, to make it (overly) simple. Like many labor and employment lawyers of my vintage, I was attracted to the field by a law school course in labor law, covering the National Labor Relations Act—the rules of union organizing campaigns, collective bargaining, grievance arbitration, strikes and lockouts, and all the fascinating and dramatic strategy they entail. Because of the essentially adversary nature of labor-management relations, even in the most congenial and collaborative environments, the line between union and management representation is very clean. This continues through the present day. I do not represent unions.
Also, like the rest of the practitioners of my vintage, I have witnessed the decimation of private-sector union representation in this country. Simultaneously (and I believe in large part causally), I have witnessed a proliferation of statutes and common law establishing and expanding a vast array of legal obligations on employers and claims for employees.
Title VII law has evolved to include harassment and compensation claims, and has been amended to permit jury trials and compensatory and punitive damages. The Americans with Disabilities Act, the Family and Medical Leave Act, exceptions to the employment-at-will doctrine, the possibility of defamation claims in the employment context, Connecticut’s paid sick leave mandate, and the personnel files statute have all expanded employment law’s scope.
Literally or by analogy, these rights are largely tortlike in the legal work they provide. Outside of the employment context, it is rare for a lawyer’s practice to be confined to putative tortfeasors or victims. Cases are accepted for clients on either side of that divide.
Moreover, it has never been strictly true that a management employment lawyer never represents an employee. Relatives of corporate client executives are often assisted. Those individual executive contacts themselves sometimes seek assistance in later or separate employment relationships. Sometimes a corporate client’s new hire needs representation in an action by a prior employer seeking to enforce noncompetition or nonsolicitation agreements or charging trade secret or other confidential information has been misappropriated or misused.
Furthermore, the idea that some antipathy to employee claimants is a sine qua non of management representation, or vice versa, is simply wrong. Indeed, I believe it is counterproductive to view the other side as malevolent. That attitude is an enemy to objective evaluation of the issues and the strength and weaknesses of your client’s position.
Experience on both sides gives the advantage of an immediate appreciation of the considerations driving the dispute for each adversary.
And perhaps most important, it’s a great deal of fun! •