TOPIC O: REPRESENTING CORPORATIONS AND GOVERNMENTS 2016 P.R. Prof. Janicke

THIS TOPIC ADDRESSES HOW TO FUNCTION WHEN YOUR CLIENT IS: –A BUSINESS CORPORATION –A NONPROFIT CORPORATION –A CITY, TOWN, OR COUNTY GOVERNMENT –A CHURCH ENTITY 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 2

WITH WHOM DO YOU CONVERSE AS “CLIENT” R. 1.13(a) –BOARD OF DIRECTORS IS IN CHARGE –BOARD’S AUTHORITY USUALLY IS DELEGATED; THEN DELEGEE (e.g., CEO, GEN. COUNSEL) IS IN CHARGE –CONSENTS, INSTRUCTIONS, FEES, ETC., GO THROUGH THE DELEGEE 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 3

WHOM DO YOU INTERVIEW? MANAGERS? EMPLOYEES? ARE THEY ADDITIONAL “CLIENTS”? –THEY WILL THINK SO –DEPENDS HOW YOU SET IT UP JOINT REPRESENTATION IS POSSIBLE, PER RULE 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 4

WHOM DO YOU ADVISE? AND ON WHOSE “BEHALF?” WHAT IMPRESSIONS DO YOU CREATE? 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 5

THE KEY DON’T LEAVE THE ENGAGEMENT SITUATION HANGING! MANY RIGHTS ARE TRIGGERED FOR A “CLIENT” 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 6

PRIVILEGES ARE EMPLOYEE DISCUSSIONS PRIVILEGED? IF PRIVILEGED, WHO CONTROLS THE PRIVILEGE, ONCE ESTABLISHED? (I.E., WHO DECIDES ON WAIVER?) –COMPANY? –EMPLOYEE? –BOTH? 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 7

JOINT REPRESENTATIONS ARE POSSIBLE CAN REPRESENT COMPANY AND CEO AND AN EMPLOYEE BUT: MUST OBSERVE RULES FOR JOINT REPRESENTATION R. 1.7 C TOPIC O: CORPORATE & GOVERNMENT CLIENTS 8

IF CONFLICTS BECOME IRRECONCILABLE LAWYER WILL USUALLY HAVE TO WITHDRAW FROM BOTH CLIENTS R. 1.7 C29 DUE TO LOSS OF IMPARTIALITY, LOSS OF ABILITY TO SERVE ALL INTERESTS 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 9

CONFIDENCES HAVE TO BE PRESERVED PRIVILEGES: POSSIBLE “PARTIES OF A COMMON INTEREST” vis-à-vis THIRD PARTIES NO PRIVILEGE IF DISPUTE IS BETWEEN THE TWO CLIENTS R. 1.7 C30 >>> 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 10

OTHER CONFIDENCES (BEYOND PRIVILEGED COMMUNICATIONS): –WILL NEED TO BE WORKED OUT BY INFORMED CONSENTS R. 1.7 C TOPIC O: CORPORATE & GOVERNMENT CLIENTS 11

PRACTICAL DILEMMAS COMPANY WANTS TO PLEA- BARGAIN; BUT EMPLOYEE CANNOT GET A GOOD DEAL EMPLOYEE WANTS TO SETTLE A CIVIL CASE, BUT COMPANY DOES NOT 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 12

MISCONDUCT WITHIN THE COMPANY R. 1.13(b) IF LAWYER FOR A COMPANY LEARNS: –OFFICER OR EMPLOYEE – IS ENGAGED PLANS TO ENGAGE –IN CONDUCT THAT IS ILLEGAL AND COULD BE HARMFULLY IMPUTED TO CO., or –IN CONDUCT VIOLATING DUTY TO CO. >>> 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 13

LAWYER MUST THEN TAKE REMEDIAL ACTION – –“PROCEED AS S REASONABLY NECESSARY IN THE BEST INTEREST OF THE ORGANIZATION R. 1.13(b) –MAY HAVE TO GO TO THE TOP: BOARD –IF BOARD DOES NOT ACT, “MAY” BLOW THE WHISTLE R. 1.13(c) 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 14

BUT: NO WHISTLE-BLOWING IF THE LAWYER WAS ENGAGED TO INVESTIGATE WRONGDOING R. 1.13(d) 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 15

IF THE LAWYER REPRESENTS ONLY THE COMPANY: MUST BE CAREFUL TO EXPLAIN THE SITUATION WHEN COMMUNICATING WITH OFFICERS OR EMPLOYEES R. 1.13(f) 2016TOPIC O: CORPORATE & GOVERNMENT CLIENTS 16