Legal Ethics in the Employment Law Context: Who is the Client?

Northern Kentucky Law Review, Vol. 37, No. 1, p. 1, 2010

University of Louisville School of Law Legal Studies Research Paper Series No. 2011-04

30 Pages Posted: 4 Oct 2009 Last revised: 3 Feb 2011

Ariana R. Levinson

University of Louisville - Louis D. Brandeis School of Law

Date Written: October 2, 2009

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.

Keywords: professional responsibility, ethics, employment, labor law, attorney-client privilege, ex parte communications

JEL Classification: J52, K31, K30

Suggested Citation

Levinson, Ariana R., Legal Ethics in the Employment Law Context: Who is the Client? (October 2, 2009). Northern Kentucky Law Review, Vol. 37, No. 1, p. 1, 2010; University of Louisville School of Law Legal Studies Research Paper Series No. 2011-04. Available at SSRN: https://ssrn.com/abstract=1481882

Ariana R. Levinson (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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