Video lecture for my Professional Responsibility course (and MPRE prep) about ABA Formal Ethics Opinion 514 (Jan. 8, 2025). This American Bar Association formal opinion discusses the ethical obligations of lawyers advising organizations when their advice might create legal risks for the organization's constituents (e.g., employees or board members). The opinion clarifies that while the lawyer's client is the organization, not the constituents, the lawyer must take reasonable steps to prevent constituents from mistakenly believing they are personally represented. This involves clearly communicating the lawyer's role and the limits of their representation. The opinion analyzes relevant Model Rules of Professional Conduct, focusing on competent representation, necessary communication, candid advice, and truthful interactions with non-clients. It emphasizes the importance of proactively educating constituents about the lawyer's role to mitigate potential misunderstandings.
Download ABA Ethics Opinion 514: www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-514.pdf
ABA Press Release is here: www.americanbar.org/news/abanews/aba-news-archives/2025/01/aba-guidance-diligence-revised-model-rule/
Legal Implications for Constituents: The opinion clarifies that lawyers must consider and advise organizations about the legal implications of their actions on individual constituents, particularly when such actions could expose constituents to personal legal risks. This is essential for organizations to make informed decisions.
Potential Divergence of Interests: While the interests of an organization and its constituents are often aligned, they can diverge, particularly in situations where a proposed action might benefit the organization but expose individual constituents to legal risks.
1. Who does a lawyer represent when advising an organization?
The lawyer represents the organization itself, not individual constituents such as employees, officers, or board members. This holds true even when the lawyer communicates advice through these individuals.
2. When should an organization's lawyer advise the organization about potential legal risks to its constituents?
A lawyer should advise the organization about legal risks to constituents when those risks are significant and relevant to the organization's decision-making. This may include situations where constituents could face personal civil or criminal liability for actions taken on behalf of the organization.
"The objective is not to advise constituents about how to act in light of personal legal risks but simply to give them information to prevent them from erroneously relying on misunderstandings of the lawyer’s role."
Key Terms -
Constituent: An individual who is part of an organization, such as an employee, officer, or board member.
Organization client: The legal entity that the lawyer represents, as opposed to its individual constituents.
Legal advice: Guidance provided by a lawyer regarding the application of the law to a specific situation.
Misunderstanding of the lawyer’s role: When a constituent mistakenly believes that the organization’s lawyer represents their personal interests.
"Upjohn warnings": Statements made by an organization’s lawyer to a constituent during an internal investigation, clarifying that the lawyer represents the organization, not the individual.
Attorney-client privilege: A legal doctrine that protects confidential communications between a lawyer and client.
Conflict of interest: A situation in which a lawyer's personal interests or duties to another client could compromise their loyalty to their client.
Competent representation: Providing legal services that meet the standard of care expected of a reasonably competent lawyer.
Candid advice: Providing a client with an honest and straightforward assessment of their legal situation, including potential risks and benefits of different courses of action.
Reasonable measures: Actions that a lawyer of ordinary prudence would take under the circumstances.
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