Monday, November 14, 2022

Corporate lawyers represent the company, not its employees

News broke last week of Elon Musk's lawyer reassuring Twitter's remaining employees that they should not worry about potential criminal liability for FTC violations the company may have committed in failing to abide by a 2021 consent order with the agency.

In and of itself, that sentence may seem innocuous enough … until you stop, think, and break down the parties involved. The CEO's lawyer was talking to Twitter's employees who are not his clients.

As a management-side employment lawyer I always keep front and center in my mind whom my client is. It's the business. It's not its CEO, any other officers, any directors, any shareholders or members, or any employees. My ethical obligation is to advise and protect the organization, not its agent. Sometimes their interests do align (e.g., a discrimination lawsuit in which an individual manager is sue, and I conclude joint representation of all defendants will not create a conflict of interest). In that case, I can — but am not obligated to — take on a joint representation. But in that case I need an engagement letter and conflict waivers signed by all clients. 

Under no circumstances would I, as the lawyer of the entity or of its CEO, offer legal advice to the company's employees about their potential legal exposure or risk. And in no case should employees accept what I may tell them as legal advice. After all, I'm not their lawyer.

Thus, if I'm one of those Twitter employees who received the message from Musk's attorney, and I'm the least bit worried about potential civil or criminal exposure related to my employment at Twitter, I'm retaining my own counsel who's looking out for my own interests and can advise me on whether and when I have to worry.