John Steele, Attorney at Law

John Steele Attorney at Law (USA) © John Steele 2010

10/14/ CLIENT IDENTITY & TYPES OF CLIENTS

Client Identity 1. NATURAL PERSON CLIENTS 2. ORGANIZATIONAL CLIENTS 3. MULTIPLE CLIENT

Defining the ACR: Client Identity and Scope of the Representation 10/14/ What’s in; What’s out? Who’s in; Who’s out?

10/14/ Natural Person Clients

Natural Person Clients 10/14/  Maintain confidences  Don’t blow privilege  Friends & Family  Don’t let third party payors interfere

Clients under a disability 10/14/2015 8

Clients under a Disability (1.14)  There may be a formally appointed representative:  Guardian ad litem  Conservator  Fiduciary  If so, the representative makes decisions for the client

Clients under a Disability (1.14)  Otherwise...  Treat as normally as possible  Disability may be partial (i.e., the client may be capable of some decisions)  Lawyer may seek professional advice about the disability (exception to duty of confidentiality)  In extreme cases, you may seek appointment of a representative or finding of incapacity

10/14/ Organizational Clients

Organizational Clients 10/14/

Representing Organizations: The Entity Theory (1.13) (3-600) 10/14/  The entity is the client  Entities act through authorized agents  Organizational rules determine which agents speak and decide

Representing Organizations: The Entity Theory (1.13) (3-600) 10/14/  Representing the entity and an agent could be a conflict!  Don’t accidentally represent the entity’s agent  “Reasonable expectations”?  The Bevel test

Representing Organizations: Warnings to Agents (1.13) (3-600) 10/14/  Warn when the matter is adverse to the entity’s agent!  Dispel confusion whenever agent appears not to understand who the client is!

Types of Organizational Clients  Corporations  Partnerships  Closely held companies  Government agencies  Classes (in class action litigation)  Lots more! (Indian nations; trade associations; universities)

Dealing with Organizational Clients  Who decides?  Communication with entity  Bad news moves “up the org chart”  To highest body?  Confidences  Reporting up the org chart isn’t a breach of confidences  If matter isn’t resolved, lawyer “may report out” if in the client’s best interests  “reporting up” vs. “reporting out”

Dealing with Organizational Clients  Communicating news of events causing liability  Report up the org chart as appropriate  Report to highest authority?  If not resolved, “may reveal” in best interests of the client (“reporting out”)  If fired, because of reporting, lawyer may inform company of cause of firing  If the company is publicly traded...  Governed by Sarbanes-Oxley Act  Detailed scheme for reporting up and reporting out

10/14/ Multiple Clients

Multiple Clients  Is there a conflict?  Should you get a waiver?  How does privilege work with multiple clients?  Either client may assert privilege for the other client  If the multiple clients enter into a dispute, they cannot assert privilege against each other  How does communication work with multiple clients?  Generally, lawyers share material information with both clients

10/14/ Quiz!

Self-Diagnostic Questions  Identify a few ways that clients can be “under a disability”  List of the ways lawyers should interact with clients under a disability

Self-Diagnostic Questions  Identify a few examples of organizational clients  State in your own words the “entity theory of representation”  May a lawyer who represents an entity also represent an agent (e.g., officer, director, employee) of that entity?  If the lawyer undertakes to represent the entity and an entity-agent, what issue must the lawyer be careful about?

Self-Diagnostic Questions  When the lawyer represents just the entity and interacts with agents, when must the lawyer give warnings to the agent?  Paraphrase the duty, found in 1.13, under which the lawyer must “report up” information about events that might create liability for the entity client?  What federal law governs “reporting up” when the company is publicly traded?

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