Representing: You?

In our engagement letter, we have some very important language. Possibly the most important is this: It is expressly agreed and understood by Client that OG + S is retained for the sole benefit of the Client, and not for the benefit of any other person, partnership, corporation, shareholder, office, director, affiliated company or guarantor who is or may become involved in the Matter.

We want to make sure it is clear who we are representing – who is it for whom we are acting as advocates. At the top of the agreement, and in phone calls, we take time to identify who is and who is not our client. Often, the client is a company; not the owners as individuals. This makes sense, but it can be confusing to clients when the company only has one or two owners. It seems like the individual IS the company.

However, that is not always the case. Often times with multiple owners especially, what is good for one individual is not good for the other or what is good for the individuals isn’t good for the owners. So what do we do? Well, we have a Code of Ethics (you can crack your joke here, but we take this code very seriously), and that code gives us the following guidance:

SCR 20:1.13 Organization as client.

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act in behalf of the organization as determined by applicable law.

(c) Except as provided in par. (d), if,(1) despite the lawyer’s efforts in accordance with par. (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action or a refusal to act, that is clearly a violation of law, and(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not SCR 20:1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.(

d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.

(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to pars. (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.

(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.

(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of SCR 20:1.7. If the organization’s consent to the dual representation is required by SCR 20:1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

(h) Notwithstanding other provisions of this rule, a lawyer shall comply with the disclosure requirements of SCR 20:1.6 (b).

That means be sure you know who your attorney is representing: you or your company. If there is a doubt, ask! If there is a conflict between you and the company, you may both want your own attorneys because as much as it sometimes feels your entire life is your company, we see you as your own self separate and apart from the company. Be sure you do as well.

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