Legal Ethics in the Employment Law Context: Who is the Client?
The first draft of my article Legal Ethics in the Employment Law Context: Who is the Client? forthcoming in 37 Northern Kentucky Law Review, Issue 1, is now available. Here's the abstract.
The question is: Who is the client? Many ethical decisions attorneys must make emanate from this basic question. Thus, for those employment lawyers who represent, interact with, or sue unions or corporations, it is important to understand who the client is for different purposes such as representation, the attorney-client privilege, and ex parte communications. Because Kentucky recently adopted new rules of professional conduct, this paper uses Kentucky law as a microcosm through which to think about this larger question. Kentucky's prior rules were based on the prior version of the ABA Model Rules of Professional Conduct, still at least partially in effect in approximately twenty-two states. And the current rules mirror, almost identically in pertinent parts, the current model ABA rules, known as Ethics 2000, on which approximately eighteen other states model the pertinent rules. This recent change permits scholars and attorneys from a wide variety of states to benefit from the insights about Kentucky law.
Section I discusses the law governing a corporate employer attorney's relationship to the client and summarizes the law applicable to a union attorney's relationship to the client. Section II describes the duty of confidentiality and its relationship to the attorney-client privilege. Section III considers how far down the chain of command an employer or a union can assert the attorney-client privilege. Among other topics, Section III discusses relevant rules of evidence, related authority dealing with employers, cases regarding unions asserting the privilege, and fiduciary exceptions to asserting the privilege. Section IV addresses privileges related to the attorney-client privilege that a union may, in some circumstances, be able to assert. Finally, Section V discusses the law governing ex parte communications with employees of a represented employer.