When companies come under investigation, employees who were involved or otherwise knowledgeable of the conduct at issue often need to have their own counsel. This is because the interests of a company and the personal interests of an employee are not always aligned, particularly during a criminal investigation in which an employee’s liberty is at stake. In these situations, it is commonplace for a company to pay for the employee’s attorney, either out of legal obligation or personal loyalty. There are many advantages to this arrangement from the company’s perspective, not the least of which is the possibility for the company’s and employee’s attorneys to share information under a joint defense agreement when appropriate.
Despite this widespread practice, a company paying for separate counsel for one of its employees is inherently unnatural. Corporate counsel paying for outside counsel’s services are used to being in charge of the objectives of the representation and the tactics designed to achieve them, and the attorneys they hire are conditioned to comply. Loyalty to the company’s interests are paramount. This is the natural order of things when the company is the client.