Representing an Organization Flashcards
What are the duties of a lawyer who represents an organization?
A lawyer who represents an organization owes the duties of loyalty and confidentiality to the organization, not to its individual constituents, such as officers, directors, or employees.
Can a lawyer represent an organization and one of its employees? What are the requirements?
Yes, but it creates a potential concurrent COI.
A conflict of interest (COI) arises when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or the interests of another current or former client.
Under both the MR and CA RPC, if there is a concurrent COI, a lawyer may undertake representation if (i) the lawyer reasonably believes that he can competently and diligently represent each affected client, (ii) it is not prohibited by law, (iii) it does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case or other proceeding before the tribunal, and (iv) each affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA).
What is the lawyer’s duty when the organization’s interests conflict with a constituents?
In dealing with an organization’s constituents (directors, officers, employees, members, shareholders), and the organization’s interest are or may become adverse to the consituent, the lawyer MUST explain it represents the organization and MUST not mislead the constituent into thinking she can communicate confidential information that will not be used in the org’s best interest.
What issues arise if a L represents an org and the org wants to have a meeting with another constituent (who is acting on behalf of herself and not acting as an agent of org) present?
The L should inform the org that it cannot have a privileged conversation if a constituent is present (presence of third party)
