WWCDA Annual Meeting 2024: Navigating pool counsel and joint defense representations

At last week's Women's White Collar Defense Association (WWCDA) Annual Meeting 2024, which I had the privilege to co-chair, I had the opportunity to moderate and sit in on a range of fascinating discussions.  

This included a discussion on pool counsel and joint defense representation led by Gabrielle Friedman, Shula de Jersey, Pamela Johnston, Dr. Annette Rosskopf, Jana Volante Walshak and moderated by Ilene Jaroslaw. Insightful updates from the U.S., UK, and Germany helped shine a light on how to spot issues, navigate the arrangement, and avoid pitfalls. Here are some of the practical tips from the panel:

• Carefully decide who can be in the pool of clients to avoid conflicts down the road. 
• Know rules in each relevant jurisdiction. Even within the U.S., rules can vary widely by state. 
• Draft engagement letters carefully to make necessary disclosures. Get informed consent in writing from all clients; advise on the advantages and disadvantages of pool counsel, consider including an advance conflict waiver, advance confidentiality waiver, and the names of all pool clients.  
• Disclose the identity of third-party payor  
• Monitor for conflicts throughout representation. 
• Careful documentation pays off.  Regulators might view the structure with skepticism: prepare for scrutiny. 
• Be careful when company counsel serves as pool counsel: companies might prefer it for cost reasons, but be mindful of increased scrutiny from investigating authorities.

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