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

See all articles by J.S. Nelson

J.S. Nelson

Villanova Law School; Villanova School of Business; The Wharton School, University of Pennsylvania; Institute for Corruption Studies

Richard O. Parry

California State University, Fullerton

Date Written: July 1, 2013

Abstract

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.

Suggested Citation

Nelson, Josephine and Parry, Richard O., When Criminal Prosecution of a Business and its Employees Creates a Conflict of Interest: Does Independent Counsel Address the Conflict? (July 1, 2013). Journal of Legal Studies in Business, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2488920

Josephine Nelson

Villanova Law School ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

Villanova School of Business ( email )

800 Lancaster Avenue
Villanova, PA 19085-1678
United States

The Wharton School, University of Pennsylvania ( email )

3730 Walnut Street
Room 668 Jon M. Huntsman Hall
Philadelphia, PA 19104-6340
United States

Institute for Corruption Studies

Stevenson Hall 425
Normal, IL 61790-4200
United States

Richard O. Parry (Contact Author)

California State University, Fullerton ( email )

800 N State College St
Fullerton, CA 92831
United States
(657) 278-3410 (Phone)

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