The Organization Is the Client

Representing an Organization

The Organization Is the Client

A lawyer employed or retained by an organization represents the organization, which acts through its duly authorized constituents.¹ Everything else in Model Rule 1.13 builds on that sentence. Because the rule speaks of a lawyer employed or retained, it reaches the in-house lawyer on the company's payroll and the outside firm hired for a single deal alike. The organizations it covers include corporations, partnerships, unions, trade associations, and government agencies.²

The people through whom an organization acts are its constituents: its directors, officers, and agents. The organization itself is the client, not any of them.³ The rule makes two separate points. Naming the organization as the client says whom the lawyer serves. The phrase duly authorized constituents says how that client communicates with its lawyer, through the individuals who act on its behalf. An organization cannot telephone its lawyer; its president does, as its agent.

The rule is clear in theory, and lawyers still stumble over it in practice. Suppose a corporation's president works with the corporation's outside law firm to evaluate a merger opportunity or defend a lawsuit. The president and the lawyers are both acting as agents of the corporation.⁴ A lawyer who deals with the same individual every day can easily slide into acting as though that individual is the client.

Exam stems exploit this drift. They hand the lawyer a senior, friendly, or insistent individual and invite the answer that the lawyer must follow that person. Ask first who the client is and whether the person giving instructions is acting for the client. That question exposes the trap before the lawyer falls into it.

Because the organization is the client, the duties a lawyer owes a client run to it, and confidentiality shows how. A lawyer who reports evidence of wrongdoing to the board of directors has not violated Rule 1.6. The duty of confidentiality is owed to the client, the client is the organization, and the board is the highest authority that can act for the client. The lawyer has disclosed nothing outside the organization.⁵

The same reasoning explains what happens when a constituent wants a lawyer of his own. A lawyer may choose to represent a constituent in addition to the organization, and the lawyer then has two clients. That concurrent representation must pass muster under Rule 1.7.⁶ Representing a constituent does not, by itself, make the organization a second client.⁷