By Sara Kropf
There seems to be a disturbing trend by Department of Justice attorneys to encourage defense counsel to disqualify themselves based on a supposed “conflict of interest” without disclosing to defense counsel why the prosecutor thinks a conflict exists.
Let me explain how this issue arises.
In a grand jury investigation involving a company, the government may be simultaneously investigating the company and some combination of its directors, officers, or employees. The company retains outside counsel to represent it in the investigation. As part of that retention, outside counsel conducts an internal investigation and interviews the key people to find out what happened.
That’s all simple enough.
But then the prosecutor says he wants to interview a particular director, one who doesn’t appear to have had a role in any potential wrongdoing. Can the same outside counsel represent the director during the interview?