Faced with a government investigation, counsel representing a corporate entity often face the question of whether they may ethically represent officers and employees as well.  In In re Ellis, OSB No. 09-54 (Ore. Feb. 20, 2015), the Oregon State Bar determined that two law firm partners had violated ethical rules governing conflicts of interest by engaging in such a joint representation, and a trial panel for the Disciplinary Board agreed.  The Oregon Supreme Court, however, reversed.  The case arose out of a public corporation’s discovery that improper application of revenue recognition principles had led to errors in financial statements, leading it to restate those financial statements.  Class action litigation by shareholders ensued, followed by an SEC investigation and later a DOJ investigation.  The law firm partners represented the corporation in the class action litigation, and they also represented certain individual officers.  One of the officers declined to be jointly represented, and another retained separate counsel but was also represented by the partners as co-counsel.  The jointly represented officers signed engagement letters consenting to the joint representation – letters that encouraged the individuals to consult with independent counsel before consenting.  When the SEC opened an investigation, the partners continued to represent various officers along with the corporation, and new engagement and consent letters were signed.  The SEC later issued Wells Notices to the corporation and certain of the individuals, indicating an intent to bring civil enforcement actions against them.  At that point the partners advised those individuals who did not have separate counsel to retain separate counsel, which they did.  But, the partners continued to represent the individuals as well, in a supporting co-counsel role.  When the DOJ later opened an investigation, the partners took a more limited role on behalf of the corporation, which retained new counsel to take the lead in that matter.  Although none of the individuals or their separate lawyers complained to the Bar about the partners’ conduct, the Bar filed complaints alleging conflicts of interest in various aspects of the representation.  The Oregon Supreme Court analyzed the history of the representation in detail and concluded that the partners had not violated applicable ethical rules because the clients did not have actual conflicts of interest.  The partners’ approach on behalf of the corporation was to emphasize the remedial actions taken in the wake of the discovery of the accounting errors, and counsel consistently referred to the accounting problems as “errors,” not as “fraud,” thus not suggesting intentional conduct by the individual clients.  The court found these positions were not in conflict with the interests of the individuals.