It’s late on a Friday afternoon and your former law school classmate, now a partner at a major law firm, calls you with a referral. She’s representing a large company in the crosshairs of a fraud investigation, and government lawyers have requested interviews with several corporate officers and employees. Your former classmate has determined that she and her firm are unable to represent both the company and the employees simultaneously, and so she graciously offers you the opportunity to serve as “pool counsel” for the handful of officers and employees in whom the government has expressed interest.
This is not an uncommon scenario. For practitioners in the white-collar and regulatory defense space, corporations (typically guided by their outside counsel) often seek to retain a single lawyer or law firm—referred to as pool counsel—to represent multiple employees in the very same government investigation. While the practice is common, it can be an ethical trap for the unwary. Conflicts issues abound. For instance, what if the employee-clients have conflicting recollections about the same events? What if those recollections are irreconcilable or, worse, one client’s potential testimony reflects poorly on, or even inculpates, another client? Confidentiality issues are also present. If one client conveys confidential information, may you use that information to benefit other clients in your pool? May, or must, you share that information with other clients in your pool? What if the imparting client asks you not to share? And how much about these potential scenarios, if any, should you discuss with your clients prior to commencing the representation?
