I spotted this intriguing entry with regard to the Bear Stearns indictment and the duty of corporate counsel to employees:
[Defendant Tannin] raised the issue of whether to approach a lawyer regarding his doubts about the market. “Who do we talk to about this?” wrote Tannin in an e-mail, sent from his private account, to co-defendant Ralph Cioffi. “Outside counsel? (And here we have to be careful because our outside counsel is [Bear Stearns Asset Management’s counsel] NOT our counsel — This is another very big issue we at least need to think about.)”
He was right — if he had talked to Bear Stearns’ lawyer, they would not have told him what was in his best interest. They would have told him what was in the best interest of the company. More below the fold.
Let me quote the American Bar Associations’s Model Rule for Professional Conduct 1.13:
(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. …
A company’s lawyer is just that: a lawyer for the company. Never believe that they will protect any confidences with you personally, because they don’t have any duty to represent employees individually.
Don’t they have to tell me that?
(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
Note how it doesn’t say "if the employee was confused, the attorney must keep what they learned confidential," because the attorney doesn’t have to. Frequently, the attorney — regardless of what they really thought — can later claim they did not know the employee’s interests were "adverse" until after they learned something damaging about the employee, which they were then duty bound to report to the organization.
When talking with them, will they tell you when they think you’ve transcended some line imperiling your own legal interests, making you liable for criminal fraud? Probably not. Will they tell you when they think you’ve said something that you probably don’t want the rest of the company to know? Probably not.