A lawyer, by representing the partnership, can still represent one partner against another on an unrelated matter.
I represent a general partnership and have done so for several years. Is there anything that prevents me from suing one of the partners on an unrelated matter involving another client of mine?
The question posed raises the seminal question every lawyer has to ask when clients come in, who does the lawyer represent? It’s a very important issue which many lawyers oftentimes ignore to their detriment. Obviously, if one represents someone, then conflict of interest rules and confidentiality rules apply which could preclude representation against other persons at the meeting. Further, attorney-client privilege could be waived.
Who does one represent? This is seen when parents come in with a juvenile defendant in a criminal case. Obviously, the lawyer represents the juvenile defendant, not the parents, although there is some flexibility there under Rule 1.14 involving disability, in which a juvenile is treated as a client with a disability.
Another classic situation is a lawyer representing someone after being assigned the case to defend by the insurance company. The lawyer represents the insured, not the insurance company, but that’s often forgotten not only by the lawyer but also by the insurance company. Under Rule 1.8, a third party who pays legal bills can’t interfere with the independence of the lawyer and has to respect the confidentiality. That is often forgotten by lawyers who are eager to have more business from the insurance company, which believe they are the client when they are not.
A similar situation is driver and passenger. If a lawyer is going to represent only one of them, the lawyer should not be interviewing both and should make it clear. Interviewing both is a clear request to be conflicted out later.
The appropriate rule for deciding who one represents in a general partnership is Rule 1.13 of the Rules of Professional Conduct. That rule is titled, “Organization as a Client.” Rule 1.13(a) specifically notes as follows: “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”
Based on the language in Rule 1.13, it would appear that the lawyer does not represent the individual partners in a general partnership, but represents only the partnership. Of course, the lawyer should make that clear to the partners. Oftentimes, particularly in small general partnerships, the partners don’t always understand that the lawyer is representing the partnership but not them and come to the lawyer for personal advice. If the lawyer ends up providing personal advice on other matters then, of course, there might be a conflict of interest later. If the lawyer is hired and only represents the partnership, that does not include, it appears from the language of Rule 1.13, the lawyer from representing the partner.
Comment 1 to Rule 1.13 supports that conclusion: “An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholder and other constituents. Officers, directors, employees and shareholders are the constituents of the corporate organizational client. The duties defined in the comment apply equally to unincorporated associations. ‘Other constituents’ as used in this comment means the positions equivalent to officers, directors, employees, and shareholders held by persons acting for organizational clients that are not corporations.”
Under Pennsylvania’s Rule 1.13, there is also Section 1.13(e). That rule notes as follows: “A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents subject to the provisions of Rule 1.7.”
Rule 1.7 is the general conflict of interest rule.
Therefore, there’s no prohibition for lawyer who is representing a general partnership or any organizational client form the lawyer representing the director or partners individually. The only prohibition would be if it creates a conflict. But, if the lawyer has not represented the partners individually or made that decision to do so, the lawyer does not represent the partners, but only represents the general partnership.
In the excellent book, “Pennsylvania Ethics Handbook, Fifth Edition,” which is edited by attorney Michael Temin and attorney Thomas G. Wilkinson Jr., the book points out the following: “An American Bar Association’s ethics opinion ‘Formal Opinion 91-361’ provides that a partnership is an organization within the meaning of Rule 1.13 and that a lawyer who represents a general partnership represents the entity rather than the individual partners. Acknowledging that general partnerships are, by definition, unincorporated associations, this opinion nevertheless states that a lawyer representing a partnership with respect to a particular matter does not thereby enter into a lawyer/client relationship with each member of the partnership, so as to be barred, for example, from representing another client on a matter adverse to one of the partnerships unrelated to partnership affairs.”
The ethics handbook does note that with small partnerships, “there is an increased possibility that the lawyer/client relationship with one or more of the partners may be implied from the circumstances …”
Therefore, lawyers who are involved in businesses and representing entities must be aware of who their client is. The client is the organization. The lawyer might deal through the partners or president, but the lawyer doesn’t represent them, the lawyer represents the entity only. It’s an important thing to remember because of potential for conflicts. On the other hand, a lawyer should carefully define with each of the partners or shareholders or constituents so they understand who the lawyer represents. As the aforementioned article noted, in a small partnership, for instance, the partners may get the sense or imply that the lawyer is also representing them. It’s the lawyer’s duty to clarify that situation.
To answer the question, the lawyer, by representing the partnership, can still represent one partner against another partner on an unrelated matter since representing the partnership does not mean the lawyer represented the individual partners.
There are distinct differences between attorney-client privilege and work product doctrine.
I am a young attorney and I get confused with the difference between work product doctrine and attorney-client privilege. What is the distinction?
Many lawyers, at times, get confused between the work product doctrine and the attorney-client privilege. First, the attorney-client privilege has a statutory basis and is found at 42 Pa.CSA 5928. That statutory privilege protects confidential communications. But, in Pennsylvania, the Rules of Professional Conduct, has a far broader confidentiality rule in Rule 1.6 of the Rules of Professional Conduct. That precludes revealing anything pertaining to the representation of the client.
Therefore, Rule 1.6 is far broader than the old statutory attorney-client privilege. The statutory privilege is really an evidentiary issue. The Rules of Professional Conduct provide broad regulatory confidentiality.
A lawyer has an absolute duty to protect the attorney-client privilege and the broader 1.6 confidentiality privilege. A lawyer should refuse to provide information that the lawyer considers to be privileged. If need be, a lawyer should take a contempt finding and then take the appeal to protect the privilege. There is nothing more serious for a lawyer to intentionally provide confidential information of a client. Providing confidential information to a third party goes to the essence of the attorney-client relationship. Attorneys cannot expect to have a healthy attorney-client relationship if the secrets cannot be protected.
The word product privilege is something different. That is established both in case law and written into the Pennsylvania Rules of Civil Procedure. The work product privilege under the Pennsylvania Rules of Civil Procedure is found in Rule of Civil Procedure 4003.3, that rule talks about trial preparation material generally. The rule discusses what can be disclosed and not. The rule notes as follows, though: “The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memorandum, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure, his or her mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.”
Obviously, there can be overlaps between Rule 1.6 confidentiality and the work product of the rule. For instance, in the work product prepared by a lawyer, consists of information provided by a client, then there is not only a work product privilege under Pennsylvania Rules of Civil Procedure as noted above, but there is also an absolute confidentiality or attorney-client privilege under Rule of Professional Conduct 1.6.
Normally, the distinctions are fairly obvious. Attorney-client privilege is confidence and secrets, but also anything pertaining to the representation. Work product is a way to protect the lawyer’s ability to adequately prepare and consider the case and prevents disclosure of the lawyer’s thought process, opinions, work impressions, general discussions, trial strategy and trial tactics.
But, there is the duty to protect both work product and protect the attorney-client privilege. Every lawyer should remember that the attorney-client privilege doesn’t end when the case is over, it continues. It doesn’t end when the client has passed away. It doesn’t end when the lawyer passes away. There has to be in place a procedure to protect the confidentiality in old legal files.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.