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In-House Lawyers Can't Represent Agents as Individuals, Court Rules

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By Jonathan R. Tung, Esq. on February 26, 2016 3:10 PM

Years after the Penn State Sandusky scandal first came to light, further drama has gripped the attention of in-house lawyers across the nation. A Pennsylvania Superior Court has quashed various criminal charges against several Penn State employees because the school's lawyer had violated their individual confidences.

Although the case technically only binds Pennsylvania, in-house lawyers everywhere should appreciate the details of the case.

The School's Lawyer

The case revolves around who knew what in the years leading up to the Sandusky scandal. The relevant facts are that Penn State's general counsel, Cynthia Baldwin, communicated with the school's president, athletic director, and senior VP without first making it clear to them that she was the school's lawyer, not theirs. As far as each man was concerned, Baldwin represented their individual interests.

In other words, Baldwin did not give the officers their "UpJohn" warnings, so-named cautionary provisos of representation that in-house lawyers are ethically bound to give to individuals within an organization, making clear that the lawyer represents the interests of the company and not their individual interests.

All three men claimed that Baldwin's forced testimony should have been excluded in their grand jury proceedings because they had not been adequately warned and had been denied counsel. The trial court denied this and found that they had been properly represented as agents of Penn State. But the superior court's decision changed all of that.

Generally Understood -- Though, Not Really

In-house lawyers represent their organizations, not the individuals who happen to work within the organization. Any representation of any individuals within the organization is really a bit of a misnomer -- and is actually a form of representing the company through the organization's agents. The law stems out of a 35-year-old SCOTUS case UpJohn v. United States.

Amar Sarwal, Vice President and Chief Legal Strategist of the Association of Corporate Counsel, has something to say about it all. "This is a reminder that other people who are being interview have their own independent interest. We think a lot about the company itself, but we forget about the individuals inside of it."

In-House Attorneys Cannot Represent Organization Individuals

The Pennsylvania Superior Court Decision makes clear that in-house lawyers must make it absolutely clear to all individuals within their organization that represent the company -- and nobody else. Particularly in the case of proceedings that implicate possible criminal penalties, it is absolutely crucial that in house counsel immediately recommend that each individual seek representation. Best practices also demands that attorneys who do represent individuals in a joint fashion also secure waivers from every single individual, informing them of possible conflicts.

Or better yet, just skip dual representation altogether. Too much of a mine-field.

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