who does the attorney represent in an organization, factors to consider

A lawyer must conform his or her representation to the concept that the client is the organization itself, acting through its duly authorized directors, officers, employees, members, shareholders, or other constituents overseeing the engagement at hand.

Full Answer

When is a lawyer a lawyer for the organization and not its constituents?

Under Rule 1.13 (a), when a lawyer for an entity is dealing with the organization’s constituents and the lawyer perceives differences between the interests of the organization and the interests of its constituents, the lawyer must “explain that the lawyer is the lawyer for the organization and not for any of the constituents.”

Can a law firm include information about the constituents of clients?

[9G] Under certain circumstances, a law firm may also need to include information about the constituents of a corporate client.

What is an attorneys’ role?

Attorneys had freedom to make strategy decisions, identify and research legal issues as they arose, and schedule both internal team meetings and external meetings as appropriate.

Can a lawyer for a corporation represent the shareholders?

The case received a lot of press because it set out a “new formulation” for determining whether to disqualify a law firm by imputation under the advocate-witness rule, Rule 3.7 (b). But the case was also significant for its ruling that a lawyer for a corporation does not represent the shareholders.

What is the objective of incorporation?

The objective of incorporation is to create a separate legal entity with all of its attendant attributes, such as the independent right to own corporate property and to exercise corporate powers and the limitation of liability to corporate assets. See §2.208 in Robinson’s North Carolina Corp. Law. Indeed, the most fundamental feature of a corporation is limited liability: the proposition that each shareholder is not liable for the corporation’s acts or debts beyond the agreed purchase price for such shareholder’s shares. See §11.01 in Robinson’s North Carolina Corp. Law.

What is corporate negligence?

A corporate negligence action is essentially a claim against an entity (long term care facility, hospital, or the like) for actions that violate duties that flow directly from the health care facility to the patient. This is a basis for liability that is separate and distinct from Respondeat Superior or vicarious liability. See Bost v. Riley, 44 N.C. App. 638, 262 S.E.2d 391 (1980).

What is the attorney-client privilege?

The attorney-client privilege and the attorney work product privilege extend to corporate clients. Evans v. USAA, 142 N.C. App. 18, 541 S.E.2d 782 (2001). The attorney-client privilege operates to protect confidential communications and their clients and its purpose is to encourage “full and frank communication” between attorneys and their clients. Since a corporate defendant can only act through its agents and employees, a frequent issue is who within an organization is protected by the attorney-privilege?

What is a corporate entity in long term care?

Most organizations that are involved in the ownership and operation of long term care facilities are some form of corporate entity created by statute. Frequently, there are multiple corporate entities involved with the operation of a single facility. One corporation may own the real estate where the facility is located and the property is leased to a separate organization that holds the license and operates the facility. Still another organization may be involved in the management of the facility and may employ some of the workers. It can get very complicated, both for the prosecution of a claim and the defense.

Who is the medical director of a long term care facility?

In many cases, the long term care facility has a Medical Director, who is usually a local medical doctor who has contracted with the facility to serve as the Medical Director. As part of his role as Medical Director, the doctor usually is involved with the development and implementation of various policies and procedures involving the operation of the facility and is certainly knowledgeable about what happens at the facility and how the facility and its workers operate. Furthermore, the Medical Director is usually the attending physician for many of the residents in the facility.

What is outside counsel policy?

Some corporate outside counsel policies are consistent with this general rule. For example, the outside counsel policy for Company A provides that the law firm’s client is only the company and its divisions, which are not independent legal entities. See, e.g.,

What is the most complicated area of professional responsibility in corporate representation?

One of the most complicated areas of professional responsibility in corporate representation is analyzing conflicts of interest. Determining which entity is the “client” is always important, particularly so when a firm is asked to represent a large, international corporation with wholly—and partially-owned subsidiaries or affiliates. If the law firm is asked to represent the interests of one wholly-owned, but third-tier subsidiary, is that company the firm’s only client? Or, if the client is a closely-held corporation, does the lawyer servicing the parent company represent its one subsidiary as well?

What is operational commonality?

In examining the first factor—operational commonality—courts have considered the extent to which entities: 1) rely on a common infrastructure; 2) share common personnel such as managers, officers and directors; and 3) handle responsibility for the provision and management of legal services. See id., 618 F.3d at 211.

Does a law firm know about SPharma?

Law Firm is not notified and has no knowledge of the investment. Six months later, Law Firm is engaged by Other Client to defend litigation against it by SPharma. When Law Firm lawyers appear on the first day of trial, the General Counsel for LPharma is sitting at counsel’s table for SPharma.

Is a client's initial list updated?

If an initial list is provided, it is not regularly updated even though the client, and not the law firm, is in the best position to identify its competitors. Similarly, the task of maintaining an up-to-date list of competitors, to the extent it changes, should fall squarely on the corporate client.

Do business interests create conflicts of interest?

Like the rule with respect to corporate affiliates, courts have consistently upheld the general principle that business interests or economic adversity do not create ethical conflicts of interest under the Model Rules. See, e.g., Curtis v.