[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

identify legal obligations of the client and, when clear violations arise, must not capitulate
to a constituent’s decision.
Communication Model Rule 1.13(b) makes plain that a lawyer who knows that an agent or
constituent is violating a legal obligation of the organization must not remain silent and, if
necessary, must pursue the matter beyond that person or group to a higher authority in the
organization, including the highest authority that can act on the matter. This means that
the organization’s lawyer must first communicate to the appropriate constituent that a clear
violation of law has occurred or is occurring. If the constituent does not agree, referral of
the matter for an independent legal opinion can help clarify the seriousness of the violation.
If this confirms the lawyer’s opinion but does not change the constituent’s decision, then
the lawyer must urge reassessment by taking clear violations of law up the authority ladder,
all the way to the highest authority that can act for the organization, for example, the board
of directors of a corporation. Continuing crimes or frauds require the lawyer to withdraw,
and to notify the highest authority of the reason for the withdrawal. 11
Confidentiality In Chapter 6, Upjohn and Vioxx made clear that organizations are entitled
to testimonial privileges and Model Rules 1.13 and 1.6 extend confidentiality to entity
clients. Since lawyers must communicate with constituent-agents who speak to the
organization’s lawyer for the purpose of receiving legal advice, these agents easily can
assume that they are speaking to “their” lawyer. This explains why a lawyer’s assurance of
confidentiality or privilege should include a clarification that confidentiality extends to the
organization, not to any individuals within it, and that what individual constituents tell the
lawyer will very likely be reported to others within the organization. 12
Model Rule 1.13 arose in the wake of the Enron scandal and includes a grant of special
discretion to an organization’s lawyer to disclose confidential information outside the
organization on rare occasions. This exception does not encompass lawyers who have been
hired to investigate or defend a company against allegations of past wrongdoing. But it does
allow a lawyer who in the course of an ongoing matter finds a clear legal violation and
unsuccessfully takes the matter up the organizational ladder to disclose outside the
organization when the board refuses to take remedial action that the lawyer reasonably
believes is necessary to prevent substantial injury to the organization.
An organization lawyer’s confidentiality obligation becomes doubly difficult in
situations where lawyers are inquiring into possible wrongdoing in an organization, often
pursuant to an ongoing or threatened governmental investigation. Given this danger,
lawyers who conduct corporate investigations where potential criminal liability exists read
Model Rules 1.13(f) and 4.3 as requiring some kind of Upjohn warning or explanation to
employees to prevent any misunderstanding of the lawyer’s role. The warning should
include:
1. Identification of the lawyer, the client, and the matter;
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