Can one lawyer represent multiple witnesses as "pool counsel" in a government or internal corporate investigation?
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This page answers the general question as of 2019. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses "pool counsel," a single lawyer who represents several individuals who are witnesses or potential witnesses in a government investigation or a corporate internal investigation. It concludes the arrangement is permissible, subject to the conflict-of-interest and confidentiality rules.
On conflicts, the opinion concludes the lawyer must determine before serving as pool counsel whether the proposed representation involves a concurrent conflict of interest under Rule 1.7. Where a conflict exists but the lawyer reasonably believes the representation can still be competent and diligent, the lawyer may proceed only with each affected client's informed consent confirmed in writing. The opinion notes that even where Rule 1.7 does not require written consent, the Rule 1.4 duty to explain a matter may call for the same disclosures about the risks and advantages of the joint representation, and it identifies confirming consent in writing as the advisable course in any event. Once underway, the lawyer must identify and respond to conflicts that later arise.
On confidentiality, the opinion concludes that before interviewing a prospective client and before undertaking the representation, pool counsel must secure the individual's informed consent to the extent the lawyer expects to disclose or use that individual's confidential information for the benefit of others. Because the breadth of the Rule 1.6 confidentiality duty makes it difficult in practice to avoid using one pooled client's information when representing others, the lawyer must obtain informed consent to that use. The opinion notes the lawyer and clients may, with informed consent, agree in advance that the lawyer may share confidential information among the pool.
In practice
Under this opinion, as the New York rules stood at the time, pool counsel is workable but consent-intensive. The opinion holds that the lawyer must run the Rule 1.7 concurrent-conflict analysis before taking on each individual, obtain informed consent confirmed in writing where a waivable conflict exists, and treat the Rule 1.4 explanation duty as potentially requiring the same disclosures even absent a strict Rule 1.7 conflict. The opinion holds the lawyer must also secure informed consent, at the prospective-client stage, to the disclosure or cross-use of each individual's confidential information among the pool, because the breadth of the confidentiality duty makes such use hard to avoid in practice.
Common questions
Q: Can one lawyer represent several employees who are witnesses in the same investigation?
A: Yes, subject to the rules. The opinion concludes a lawyer may serve as pool counsel for multiple witnesses or potential witnesses in a government or internal investigation, provided the lawyer satisfies the conflict-of-interest and confidentiality rules.
Q: What consent does pool counsel need?
A: Informed consent on both fronts. The opinion concludes the lawyer must obtain each individual's informed consent confirmed in writing to a waivable concurrent conflict under Rule 1.7, and informed consent to disclosing or using that individual's confidential information for the benefit of others in the pool.
Q: What if a conflict develops after the representation starts?
A: The lawyer must address it. The opinion concludes that once the representation commences, the lawyer must identify and respond appropriately to any conflicts of interest that arise.
Q: Does the lawyer owe duties before someone formally becomes a client?
A: Yes. The opinion concludes that under Rule 1.18, before interviewing a prospective client the lawyer must secure that person's informed consent to the extent the lawyer expects to use or disclose the person's confidential information for others.
Background and rules framework
The opinion interprets New York Rule of Professional Conduct 1.7 (concurrent conflicts of interest) and Rule 1.6 (confidentiality), read together with Rule 1.18 (duties to prospective clients), Rule 1.4 (communication), Rule 1.8(f) (compensation from a third party, relevant where an employer pays for pool counsel), Rule 1.16 (withdrawal), and the definition of informed consent in Rule 1.0(j). The Model Rule analogues are Model Rules 1.7, 1.6, 1.18, and 1.4.
Citations and references
Rules of Professional Conduct:
- NY RPC 1.7 (concurrent conflicts of interest)
- NY RPC 1.6 (confidentiality)
- NY RPC 1.18 (duties to prospective clients)
- NY RPC 1.4 (communication); NY RPC 1.0(j) (informed consent)
- NY RPC 1.8(f) (third-party compensation); NY RPC 1.16 (withdrawal)
- MR 1.7, MR 1.6, MR 1.18, MR 1.4 (Model Rule analogues)
See also
- NYC Bar Ethics Op. 2024-1: Representing two or more competing bidders for the same asset
- NYC Bar Ethics Op. 2025-1: Ethical responsibilities of lawyers representing government
Source
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