Walking A Tight Rope: Ethical Considerations and Pitfalls in Representing both Employer and Employee


As the Supreme Court, legislatures and courts across America have made abundantly clear, lawyers owe their clients ethical duties. Foremost among them are the fiduciary duty of undivided loyalty and the duty to maintain confidences. While the specifics in state ethical provisions regulating the attorney-client relationship vary, the essential mandate in Maryland and elsewhere is that the attorney must not adopt a position that conflicts with the client's interests or divulge confidential information disclosed by the client in the course of the relationship contrary to the client's wishes.

Although The Maryland Lawyer's Rules of Professional Conduct ("Maryland Rules") allow for representation of multiple clients, ethics codes generally discourage and often prohibit dual representation. Yet, family and employment based immigration cases illustrate the impracticality of single client representation. For the most part, it just does not make sense for a U.S. citizen and his or her alien spouse to retain separate counsel when they share a mutual interest in the final outcome. Similarly, the interests of a U.S. employer and its prospective foreign employee generally coincide often, making single representation impractical.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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