Joint Representation May Create More Problems Than It Solves
I am not a big fan of joint representation of employers and employees in civil matters no matter how clear the signed waiver or how sophisticated the client. A number of years ago, I was involved in the defense of a breach of restrictive covenant/trade secret matter and represented both the current employer and new employee. When the employer learned that the employee was, um, less than straightforward about what he had taken from his former employer, the new employer called me and told me to tell the new employee he was “fired”. I declined and, fortunately, was able to point to the waiver letter and discussions that clearly explained my refusal. No matter, it took some effort to get the bill paid.
I know joint representation can save a client fees, or avoid having another lawyer at the table debating strategy or asking questions at a hearing that completely undercut a defense. But, as a recent case, Trautenberg v. Paul Weiss, et al., shows, joint defense can spawn malpractice litigation and bad publicity (assuming you agree that exists).
Paul Weiss had represented Citibank and Trautenberg in connection with the defense of some claims arising out of the WorldCom debacle. Paul Weiss also advised Citibank regarding Trautenberg’s severance agreement. Two years after a severance agreement was negotiated and signed, Trautenberg sued Paul Weiss alleging breach of fiduciary duty and attorney misconduct relating to the firm's role in the severance discussions.
The case was dismissed for failure to state a claim on the pleadings, which generally is a pretty difficult motion to win. The decision carefully analyzes the complaint and law, but, let's face it, in August 2009, a plaintiff who already received a five million dollar severance hardly tugs at the heartstrings.
Whatever, this is grief that both lawyers and clients can do without.
