In-house corporate counsel and outside “white-collar crime” practitioners are by now generally familiar with the basic issues raised by the representation of both a corporation and its officers by a single lawyer and by joint defense agreements. Indeed, the advantages and risks of multiple representation and joint defense agreements in the corporate context have been the subject of much commentary, including in this column.[1]� But while familiarity may not breed contempt in this context, there is always the risk that it will lead to complacency. In that regard, the U.S. Court of Appeals for the First Circuit’s recent decision in In re Grand Jury Subpoena (Custodian of Records, Newparent Inc.) � [2]� is a useful reminder that these situations present “a smorgasbord of legal issues,”[3]� which have to be anticipated and analyzed before counsel can proceed.
Before discussing the First Circuit’s decision, it is useful to set the stage by a somewhat extended reference to an earlier Third Circuit decision. In In re Bevill, Bresler & Schulman Asset Management Corp.,[4]� Mr. Schulman, one of the firm’s principals, consulted with outside counsel upon becoming aware of the firm’s financial difficulties. He did so almost continuously between March 25, 1985 and April 7, 1985, at meetings attended by his co-principals, Messrs. Rooney and Bevill. At first, Mr. Schulman sought both personal and corporate legal advice. On March 31, 1985, the law firm was retained to represent the company, but it continued to consider the possibility of representing the individuals as well. On April 4, 1985, the firm decided it could only represent the company. Three days later, a bankruptcy petition was filed and a trustee was appointed. SEC and criminal investigations followed.
