Ethics Corner: Who is My Client?

Langford.CarolThe question, “Who is my client?” would be relatively straightforward if it could be answered simply by saying, “It’s the entity or organization that hired me.” Indeed, Rule of Professional Conduct 3-600 states that in general, the client is “the organization itself acting through its highest authorized officer, employee, body or constituent overseeing the particular engagement.”

However, saying that the client is the entity is the beginning, but not the end, of the inquiry. The lawyer for the entity must also ask several other questions, such as: Who within the entity speaks for it? With whom does the attorney have confidential and privileged communications? Has the attorney made it clear whom he or she does not represent?

Let’s focus on the last issue. Representing an entity is usually complicated by the fact that a lawyer may have close relationships with many of the organization’s management and directors. Particularly in a closely held organization, those individuals may seek to consult the attorney about personal issues including their own potential personal liability, and they may have expectations that communications with “their lawyer” are confidential.

Rule of Professional Conduct 3-600(D) addresses this issue, stating that: “In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a member shall explain the identity of the client for whom the member acts, whenever it is or becomes apparent that the organization’s interests are or may become adverse to those of the constituent(s) with whom the member is dealing.”

It also prohibits misleading a constituent into thinking that they can communicate confidential information to the attorney in a way that will not be used in the organization’s interest if that is or becomes adverse to the constituent.

Joel Cohen, in “Warning Your Client That You Are Not His Lawyer” (New York Law Journal, November 5, 1993), focuses on the tension for corporate counsel between wanting information from the corporate players but having to “Mirandize” them first. In a lighter vein, he states that the lawyer should consider telling the employee, who wants to “spill” information, the following:

  • “I do not represent you. I represent the company.
  • “If you tell me that you have done something wrong, I must report it to my client and perhaps recommend to my client that action be taken against you.
  • “If you feel more comfortable in talking to your lawyer before talking to me, I would encourage you to do so.
  • “In fact, just so you understand, there may come a time when the company may want me to repeat to a prosecutor what you tell me today. That statement could conceivably be used against you.
  • “All right? Having heard all of that, are you willing to talk to me now?”

The silence would be deafening.

The case law in California on partnerships is also inconsistent on the issue of identifying the client. For example, three California cases have each come out differently. First, a partnership lawyer does not necessarily represent the individual partners.[1] Second, confidences imparted by one partner to the attorney must be shared with all partners, even limited partners.[2] Third, whether or not the limited partners are considered clients “is of no great moment” since the lawyer for the general partner necessarily owes a “duty to the partnership to look out for all the partners’ interests.”[3]

To a point, the imprecision and lack of uniformity about entity representation shows that the issues have simply not been thoroughly treated. However, it is also true that this dearth of authority emphasizes the difficulties inherent in grappling with this issue. I cannot say how much comfort this might be to you, but I am confident that you are not alone.

Carol M. Langford is an attorney specializing in attorney conduct, ethics and discipline matters. She is a lecturer in Law at UC Berkeley, Boalt Hall School of Law on professional responsibility.

[1] See Responsible Citizens v. Superior Court, 16 Cal.App.4th 1717 (1993).

[2] See McCain v. Phoenix Resources, Inc., 185 Cal.App.3d 575 (1986).

[3] See Johnson v. Superior Court, 38 Cal.App. 4th 463, 479 (1995).

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