Aba Model Rules 1.13 Comments

The Louisiana Supreme Court adopted this rule on January 20, 2004. It entered into force on 1 March 2004 and has not been amended since. This rule is identical to the ABA model rule of Prof`l Conduct 1.13 (2003). Shareholders (or other equity participants) of an organization typically initiate a derivative action when one or more members of management have breached their duty of care or loyalty to the organization through misconduct or incapacity. Such a lawsuit does not belong to the shareholder, but to the organization. See e.B. Noe v. Roussel, 310 So. 2d 806 (La. 1975). Many almost frivolous derivative actions are “a normal incident of an organization`s affairs that must be defended by the organization`s lawyer like any other lawsuit." ABA Model R. 1.13 cmt. 14.

In such cases, conflicts are unlikely to arise if the organization`s lawyer defends a director accused of such misconduct. On the other hand, in cases where serious and non-frivolous allegations of internal misconduct are made, they are more likely to lead to conflicts of interest. Paragraph (f) recognizes that the organizational components are sometimes, perhaps often, confused with respect to the role of counsel in a case. For example, a lawyer representing a company in a criminal or administrative environmental case may very well have a conflict of interest if he or she also represents workers who may have been involved in a potentially illegal dumping of toxic waste. In such a case, the lawyer must carefully identify the client and ensure that there is no confusion as to the lawyer`s role in the case. See the. Rules of conduct of prof`l r. 1.13(f) (2004) (with regard to the functions of a lawyer vis-à-vis organizational elements); see also id. r. 4.3 (with respect to a lawyer`s duties towards unrepresented persons); see also Bakerding v. Whittaker, 263 Sun.3d 1170 (La.

Ct. App. 4th Cir. 2018). [4] When determining the way forward under point (b), the lawyer should take due account of the gravity of the offence and its consequences, the responsibility within the organisation and the obvious motivation of the person concerned, the organisation`s policy with regard to those matters and any other relevant considerations. Normally, a referral to a higher authority would be necessary. However, in certain circumstances, it may be appropriate for counsel to ask the elector to reconsider the matter; For example, if the circumstances involve an innocent misunderstanding of the law by an elector and the subsequent adoption of the Bar Council, counsel may reasonably conclude that the best interests of the corporation do not require that the matter be referred to a higher court. If a voter insists on conduct contrary to the lawyer`s opinion, he or she must take steps to have the matter reviewed by a higher authority of the organization. If the matter is sufficiently serious and important or urgent for the organization, it may be necessary to refer the matter to a higher authority of the organization, even if the lawyer has not communicated with the voter. Any measures taken should, as far as possible, minimise the risk of disclosure of representational information to persons outside the organisation. Even in cases where a lawyer is not required by Rule 1.13 to proceed, a lawyer may alert a client of the organization, including his or her highest authority, to matters that he or she reasonably believes to be of sufficient importance to justify in the best interests of the organization. Subparagraph (a) sets out the basic principle that serves as a starting point for the analysis of conflicts of interest or other ethical issues faced by a lawyer representing a legal person or one of its principals.

The fundamental principle set out in this subsection is that a lawyer “appointed by an organization" represents the corporation and not its employees, officers, directors or other components. However, since a legal person operates only through its human agents, questions often arise about the role of the lawyer vis-à-vis the organization and its components. See also Reprocessing (third parties) of the Lawyer`s Act § 96 (2000) (representation of an organisation as a client). [12] Paragraph (g) recognizes that counsel for a corporation may also represent a chief executive officer or a significant shareholder. [6] The authority and responsibility provided for in this article coincide with the authority and responsibility provided for in other rules. In particular, this rule does not limit or extend the lawyer`s liability under Rules 1.8, 1.16, 3.3 or 4.1. Point (c) of this rule supplements Rule 1.6(b) by providing an additional basis on which counsel may disclose information about representation, but does not modify, restrict or limit the provisions of Rule 1.6(b)(1) to (6). Pursuant to paragraph (c), counsel may disclose such information only if the highest authority of the organization insists on this point or does not address threatening or ongoing actions that clearly constitute a violation of the law, and only to the extent that counsel considers it reasonably necessary to prevent reasonably certain significant harm to the organization.

It is not necessary to use the services of the lawyer to promote the violation, but it is necessary that the case is related to the representation of the organization by the lawyer. If the Attorney Services are used by an organization to promote a crime or fraud by the Organization, Rules 1.6 (b) (2) and 1.6 (b) (3) may allow counsel to disclose Confidential Information. In such circumstances, Rule 1.2(d) may also apply, in which case the withdrawal of the representation may be required under Rule 1.16(a)(1). . However, subparagraph (g) recognizes that there are circumstances in which a lawyer may represent both the organization and its principals. Such joint representation is indeed appropriate where there is no conflict of interest. In addition, such joint representation is also appropriate in the event of a conflict, if each interested party gives its informed consent. The lawyer must obtain the consent of the organization either from its equity participants or from a duly authorized independent entity – not from the party to be represented.

[14] The question may arise as to whether counsel for the organization can defend such a lawsuit. The assertion that the organization is the lawyer`s client does not solve the problem on its own. Most derivative actions are a normal incident of an organization`s business that, like any other lawsuit, must be defended by the organization`s lawyer. However, if the claim involves serious allegations of misconduct on the part of those who control the organization, a conflict may arise between the lawyer`s duty to the organization and the lawyer`s relationship with counsel. In these circumstances, rule 1.7 governs who is responsible for the Directors and the Organization. Louisiana partnerships and commendam partnerships (limited partnerships) are and have long been different legal entities and not mere collections of individuals. A lawyer representing a partnership represents that entity and not its constituent parts. Therefore, in such a representation, the limited partnership is the “client" to whom the lawyer owes, among other things, the obligations of competence, loyalty and confidentiality.

See the general communication of the ABA. on the ethics and responsibility of professors, Op. cit. formal 91-361 (1991) (Partnership Representation); Reformulation (third party) of lawyers` law § 96 cmt.c (2000). [9] The obligation under this Rule applies to governmental organizations. The precise definition of the client`s identity and the imposition of the resulting obligations on these lawyers may be more difficult in the state context and go beyond the scope of these rules. See scope [18]. While the client may be a particular agency in some circumstances, it may also be a branch of government such as the executive branch or the government as a whole. For example, if the head of an office is involved in the act or inaction, either the department to which the office belongs or the responsible government branch may be the client for the purposes of this rule. In addition, in a case involving the conduct of government officials, a prosecutor may have the power, under applicable law, to question that conduct more fully than that of a lawyer for a private organization in similar circumstances. Thus, if the client is a government agency, a different balance between maintaining confidentiality and ensuring that the illegal act is prevented or corrected may be appropriate, since these are public operations. In addition, the duties of lawyers employed by the government or lawyers on military service may be determined by laws and regulations.

This section does not restrict that power. See Scope. (f) When dealing with directors, officers, employees, members, shareholders or other components of an organization, a lawyer must explain the identity of the client if the lawyer knows, or ought reasonably to know, that the interests of the corporation are contrary to those of the principals with whom the lawyer deals. [7] Clause (d) clarifies that the power of counsel to disclose representation information in the circumstances described in paragraph (c) does not apply to information relating to the engagement of counsel by an organization to investigate an alleged violation of the law or to defend the corporation or any officer, employee or other person associated with the organization against a claim; resulting from an alleged violation of the law. .