Two TCPA Clients, Zero Problems: Representing Both an Employee and the Business Making a Call Is Not an Ethical Conflict

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Lots of action today. Hopefully you’re all taking note of the FCC’s big rulings.

In other news, a Court in Texas held this week that a single lawyer can represent both an employee that made purported illegal phone calls and the business that employed him/her for that purpose.

The case is McRae v. Am. Protections Plans Llc, SA-19-CV-00945-DAE, 2020 U.S. Dist. LEXIS 110715 (W.D. Tx. June 23, 2020) and the issue was raised in the context of a motion to disqualify defense counsel brought by the Plaintiff. Plaintiff argued that the defendants’ lawyers could not possibly represent both the testifying employee and the business that employed him. While the decision does not fully flesh out the argument—it seems Plaintiff did not articulate the conflict very well—the notion is apparently that the employee could testify in a way that hurts himself and helps the business, putting the defense counsel in an impossible position since both are his clients.

The Court was not impressed. Noting that there was an alignment of interests between the employee and the employer—neither wants Plaintiff to win—the Court noted, at best, the existence of a potential (waiveable) conflict and not an actual existing conflict requiring disqualification.

So there you have it. A single defense lawyer can represent both business and employee in a TCPA suit arising out of calls made by that employee.

That said, and while McRae is undoubtedly correct on the issue, keep in mind that there are a number of tactical reasons why a business may want separate counsel for an employee and ESPECIALLY for a third-party contractor to whom indemnity might be owed. Always happy to chat through these issues.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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