When Criminal Prosecution of a Business and its Employees Creates a Conflict of Interest: Does Independent Counsel Address the Conflict?
Journal of Legal Studies in Business, Forthcoming
Posted: 10 Sep 2014 Last revised: 5 Nov 2014
Date Written: July 1, 2013
Criminal prosecution of a business and its employees or former employees presents a challenge. For society and a district attorney, attorney general, or the federal department of justice, the primary concern is the conviction of those who have broken the law. That interest must be tempered by the protection afforded criminal defendants by the Constitution. For a business, the competing concerns represent a significant potential for a conflict of interest. The rights and interests of the business must be balanced against the rights and interests of the employees or former employees.
In this respect, a business that is a criminal defendant finds itself in a position that is similar to that of an insurer in civil litigation. Some civil litigation involves the need for a reservation of rights letter by the insurer to the insured. The attorney retained by the insurer may find him or herself in a conflict of interest. In civil litigation, that conflict of interest may be addressed by the appointment of independent counsel. The same approach may be appropriate in criminal litigation.
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