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Representing Both Defendant-Employer and Defendant-Employee

By William C. Martucci, Kristen A. Page, and Jennifer K. Oldvader

The last decade has marked a dramatic rise in the number of executives, supervisors and managers who are being sued in their personal capacity for their work-related actions. This rise is largely the result of the expansion of many state discrimination laws to allow for lawsuits against not only the corporate employer, but also individual supervisors.

This trend toward naming individual employees as co-defendants in employment suits means that lawyers are increasingly being asked to defend both the employer and the individual co-defendant. Of course, whenever a lawyer is faced with a joint representation, he or she must carefully examine the facts for actual and potential conflicts of interest between the two defendants. The employment context presents unique risks in this regard and the lawyer must consider not only the ethical implications, but also the practical concerns that come with representing both the company and the individual.

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