Many years ago, I was trying a civil case that had stretched on for weeks in a federal court in Detroit. The counsel tables for both parties were covered with briefs, coffee cups, memoranda, books, water pitchers, examination outlines, yellow writing pads, and all the other litter that inevitably piles up during long trials. It appeared that we had moved in, just as at our actual homes it appeared that we had moved out.
During a short recess, I stayed seated at our table to jot down a few fresh thoughts about an upcoming witness. Various lawyers and client representatives regularly came and went during these proceedings, so I was focused on my notes and paid no attention when someone sat down beside me. My head shot up, however, when I heard the clerk call a case that was not ours. When I turned to see who had taken the adjacent chair, I was surprised to see that it was someone I didn’t know. I was even more surprised to see that my new neighbor was wearing an orange jumpsuit and shackles.
It turned out that the marshal who had escorted this gentleman into the courtroom for a brief hearing in an unrelated criminal matter had mistaken me for his appointed attorney and so had seated him beside me. The defendant didn’t object because he’d never met his lawyer. Besides, looking around the table, he was very impressed by the imposing stack of work I had already done on his behalf.
Seeing the misunderstanding unfold, the judge chuckled and set things straight. He said something like this: “Let the record reflect that the defendant’s attorney has not yet appeared. And let the record reflect that, for better or worse, Mr. Niehoff is not the defendant’s lawyer.” I thanked the judge and exited the scene as if chased by a bear.
It’s nice when we can swiftly and decisively arrive at that sort of clarity about who is, and isn’t, our client.
But it doesn’t always work out that way.
A reasonable person might wonder how a litigator could ever entertain any uncertainty about whether someone was a client. After all, the many mysteries solved by Perry Mason never included one about whom he represented. And, surely, it would silence even the most bustling of courtrooms if a lawyer began an argument with “I’m here on behalf of—well, I guess I don’t know whom I’m here on behalf of.”
Nevertheless, there are indeed a number of situations where even the most seasoned of litigators would long for the clarity given to me by that judge in the Motor City. In this article, I address two of them. One arises when the lawyer and the lawyer’s prospective client have not yet formally agreed to the representation. And the other arises when the client is a legal entity, like a corporation or organization, rather than a human being.
In this article, I put aside the related, but doctrinally distinct, question of when representation ends and your client is officially no longer your client. And I leave to other articles the issues that can arise in specialized contexts, like class actions and cases in which the client is operating under a disability and has a guardian or conservator. I explore here what I view as the two most common circumstances where litigators confront the question, to paraphrase an old Louis Jordan song, “Is you is or is you ain’t my client?”
The first of these circumstances relates to the prospective client—the person or entity who communicates with the litigator about representation but where no formal retention follows. It might seem as if this situation dictates a binary approach: The contact either created an attorney-client relationship or it didn’t. The problem with this approach is that both of those choices are bad ones.
Consider the implications of treating the initial communication as creating a full-fledged attorney-client relationship. If that were the case, then the prospective client could disqualify every litigator in town from opposing the client in court by having a brief conversation to discuss potential representation. The discussion would create a relationship; the relationship would give rise to a conflict of interest; and the conflict of interest would relegate the lawyer to the sidelines of the fight.
But, on the other hand, consider the implications of treating the communication as creating no attorney-client relationship at all. If that were the case, then a lawyer could meet with a prospective client, listen attentively while the client disclosed vast amounts of compromising information, decline the representation, and shop his or her services to the opposition. The discussion would create no relationship; no duty of confidentiality would arise; and the lawyer could market the prospective client’s secrets to the highest bidder.
For many years, courts and lawyer disciplinary bodies wrestled with this problem, yielding inconsistent and unsatisfactory results. Then, in April of 2002, the American Bar Association stepped in and addressed the issue directly through Model Rule of Professional Conduct 1.18. The effort was well received.
A 2021 survey conducted by the ABA showed overwhelming support for the rule or something very much like it. As of that year, 16 states had adopted the rule as written, 18 had adopted it with only minor changes, and 8 more had adopted it with fairly significant revisions. A few states had adopted rules of their own to address the issue, and only 2 states had no rule doing so.
Let’s look at how rule 1.18, as written, works. Rule 1.18(a) defines a “prospective client” as a “person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.” Of course, if the possibility is realized and the relationship is formalized, the ethics rules apply in full force. But Rule 1.18(b) states that certain duties attach“[e]ven when no client-lawyer relationship ensues.” Those duties primarily revolve around preserving confidential information.
Under Rule 1.18(b), the attorney may share with others the information that the prospective client provided only if it would be permitted under Rule 1.9, the rule that addresses “former clients.” Rule 1.9(c), in turn, declares that a lawyer can’t do two things with the information the lawyer received related to the potential representation. First, the lawyer can’t use it to the disadvantage of the prospective client; and, second, the lawyer can’t reveal it. Both prohibitions are subject to any general exceptions the rules create regarding confidential information, such as allowing disclosure where the client consents.
To this extent, the duty imposed by Rule 1.18 doesn’t seem to place too onerous a burden on the lawyer. After talking to a prospective client, the attorney should keep the information confidential and shouldn’t weaponize it against the party who shared it. These dictates would seem to align with common sense and common decency.
But Rule 1.18(c) creates another duty as well. The rule states that if the lawyer has learned information related to the representation from the prospective client—which will usually be the case—then the possibility of disqualification arises. The rule holds that the lawyer cannot represent a materially adverse party in the same or a substantially related matter if that information could be significantly harmful to the prospective client.
A critic might object that this provision leaves us with one of the two major problems that I noted above and that the rule was supposed to solve. The rule seems to leave open the possibility that a cagey client could go around town, talk about potential representation with all the litigators the prospective client didn’t want to appear on the other side of a dispute, and then move to disqualify them if they did so. It could therefore be argued that the rule fixes the prospective client’s concerns about confidentiality but leaves the lawyer’s concerns about disqualification right where we found them.
That isn’t quite right, though, for a few reasons. As an initial matter, this duty attaches only if the information conveyed could be significantly harmful to the prospective client. If the prospective client shared information—but not information of that level of sensitivity—then no prospect for disqualification should materialize.
Furthermore, Rule 1.18(d)(2) offers some consolation even to those lawyers who do receive such information and are disqualified. Under that provision, the attorney’s firm may continue with the adverse representation so long as the lawyer who communicated with the prospective client took reasonable measures not to learn more than necessary, the firm screens that lawyer from participation and fees in the matter, and the prospective client receives prompt written notice. This approach gives lawyers and firms fairly expansive control over their destinies.
Alas, this provision addresses only some of the disqualified lawyer’s concerns and prevents only some abuses by prospective clients—and that’s a lot of “somes.” It doesn’t help solo practitioners, who have no firm to carry the matter forward. And it doesn’t address the possibility that the manipulative client’s goal may have been to disqualify this specific lawyer. If the disqualified lawyer poses the greatest threat, the client may not care whether the rest of the firm also gets benched.
Taken as a whole, Rule 1.18 creates a strong set of incentives for lawyers to learn as little as possible from prospective clients and to gather preliminary information through a method (like an intake form) that helps prevent the transmission of more or different information than the lawyer wants and deems essential. Such an approach will typically keep the attorney distant from communications that rise to the level of disqualifying. But, of course, that approach also comes with a cost: The lawyer and the client will both decide the question of representation with much less information than they might like before taking so important a step.
When I began teaching ethics in law school, many years ago and long before the adoption of Rule 1.18, I told my students that you either were, or were not, someone’s lawyer. Saying that someone was “kind of” your client made no more sense than saying that someone was “kind of” your date to the prom; you either went to the dance together or you didn’t. Rule 1.18 changed all that. It steers a middle course and, in doing so, may bring people to the party you didn’t invite and don’t particularly want there.
When a lawyer represents a legal entity, like a corporation or organization, a different concern about client identity arises. The problem comes from a substantial tension that exists between theory and reality. Theory prevails here under our ethics rules, and that can leave us with uncomfortable questions about what to do regarding the reality in which we live and practice law.
In theory, when you represent a legal entity, it is the entity itself—not any of its officers, managers, or constituents—that is your client. This makes perfect sense as an abstract proposition. After all, the entity is a legal “person” and it exists separately and independently from its officers, managers, and constituents. Moreover, those players can act in ways that are not in the entity’s best interest.
The clumsy reality, however, is that all of the lawyer’s personal relationships and communications will be with people—that is, with the very officers, managers, and constituents who aren’t the client. You can’t have a background conversation, reason through a strategy, discuss potential settlement, or exchange a casual joke with Huge Corporation itself. But you can do any and all of those things with its president, its chief financial officer, or its board chair.
ABA Model Rule 1.13 assiduously labors to serve both of these masters—theory and reality—with limited success. The narrow and troubled terrain that the rule seeks to navigate can be highlighted by inserting an ellipsis into its first sentence: “A lawyer employed or retained by an organization represents the organization [. . .] acting through its duly authorized constituents.” This language gives you the problem in a nutshell: We can represent this sort of client only by taking our direction from . . . people who aren’t the client. And, inconveniently, sometimes those people may decide to hurt the client for their own gain.
Its full-on embrace of this paradox notwithstanding, Rule 1.13 has been widely endorsed. The 2021 ABA report cited above indicates that, as of that year, 20 states had adopted the rule as written. Almost all of the remaining states had adopted large swaths of it, with many choosing to tinker with subpart (b), an especially problematic provision.
Subpart (b) seeks to answer these questions: What do we do if it appears that a duly authorized organizational constituent is engaging in legally improper action or inaction that is likely to harm the entity? How should we proceed, given that the constituent (who is not our client) is a human being with whom we have an actual relationship, while the entity (which is our client) is an artificial legal construct with which we have no actual relationship? For decades, professors of legal ethics have challenged their students to untie this Gordian knot. And, like all good law school examination questions, these are unanswerable.
The language of Rule 1.13 itself inadvertently confirms the futility of searching for a completely satisfactory approach. The rule states:
(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 that 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 on behalf of the organization as determined by applicable law.
A lawyer facing a challenge of this nature will probably find the direction offered by this rule less than helpful. Presumably, the lawyer already understood that the entity is the client and that the lawyer should proceed to act in its best interest. But what does that entail? And it’s all well and good to suggest that the worried lawyer take the issue up the organizational chain of command, but what if that will likely wreck the relationship between the lawyer and the worrisome constituent? And what if the corruption extends to the top?
A mystified lawyer who pursues clarification by turning to the ABA comment on Rule 1.18 will likely be keenly disappointed as well. Comment [4] to the rule states that “[i]n determining how to proceed under paragraph (b), the lawyer should give due consideration” to several factors. If we take them one at a time, the difficulties with the advice offered become obvious.
The first factor is “the seriousness of the violation and its consequences.” This consideration may seem sensible at first blush, but it actually adds little or nothing to the rule itself. By its own terms, the reporting-up obligation of Rule 1.13 arises only where the legally improper action or inaction of the organizational constituent “is likely to result in substantial injury to the organization.” In other words, the text of Rule 1.13 already tells the lawyer to consider the seriousness of the matter; it doesn’t help for the comment to tell the lawyer to consider it again.
The second factor is “the responsibility in the organization and the apparent motivation of the persons involved.” Again, this may sound good at first, but on reflection, it is completely unclear why either of these things should matter. If the reporting-up predicates of Rule 1.13 have been satisfied, and an organizational constituent is acting in a legally improper way that is likely to result in substantial harm to the organization or refusing to act, then the constituent’s title and good or bad intentions shouldn’t make any difference.
The third factor is “the policies of the organization concerning such matters.” This suggestion is utterly baffling as well. Policies are not written, approved, and adopted by organizations; they are written, approved, and adopted by constituents on behalf of organizations. If an organizational constituent is substantially harming the entity though legally improper action or inaction, it would seem irrelevant to ask whether the constituent cloaked his or her misconduct in the imprimatur of an organizational policy.
The fourth factor directs the lawyer to ponder “any other relevant considerations.” When the attorney seeking guidance connects this language with that at the beginning of comment [4], the attorney finds himself or herself directed to “give due consideration” to any “relevant considerations”—or, if you prefer, to give due consideration to those things that ought duly to be considered. As I observed in a 2008 article in the Wayne Law Review, where I raised many of the same concerns advanced here, this is “a command perfect in its circularity.”
Although this part of Rule 1.13 and this section of comment [4] strike me as incomprehensible gibberish, I suspect that any effort to improve upon these provisions would prove similarly futile. The unfortunate but incontrovertible fact is that we’re asking lawyers to do something that cannot be reduced to a precise prescription or an exact formula or, as it turns out, even a mushy collection of considerations. We’re asking them to protect an organization from mischief by its constituents while simultaneously trying to preserve as best they can the personal relationships they have with the people who give the entity life. Amid all this ambiguity, the lawyer’s best hope is that no rational disciplinary body will punish the lawyer for a good-faith effort to reason his or her way through something so hideously complex that it reduced the writers of the rules and comments to assembling a meaningless word salad.
Rules 1.18 and 1.13 leave us in a place with a few certainties and, I would argue, many necessary uncertainties. In most cases, when we turn to the person beside us, we’ll know if that person is our client and, typically, so will that person. But in litigation, as in all of life, things can get complicated. In those instances, we may find that the rule writers are just as confused as we are. And we may discover that, in their inability to formulate clear guidance, they have at least found a way to hint at their sympathy for our predicament.
