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

2. Identification of the client organization’s expectations (cooperate and tell the truth);
3. A basic explanation of confidentiality: that anything the employee tells the lawyer is
confidential outside of the organization, but not within it, and the organization has
the right to decide when to waive the privilege, that is, what to disclose to outsiders
in litigation or otherwise;
4. An explanation that the lawyer does not (or does) represent the employee; and
5. An explanation that the employee may retain separate counsel (including, if
available, the right of the employee to such counsel at the employer’s expense). 13
The federal government has precipitated the development of these corporate Upjohn
warnings by taking into account an organization’s willingness to waive the privilege as a
factor in avoiding criminal indictment of the organization. 14 Under pressure from the ABA
over three decades, the DOJ has cut back materially on the frequency with which it seeks
privilege waiver, but the practice has not disappeared.
Conflict of Interest Resolution Model Rule 1.13(g) recognizes that the interests of employee
and employer may conflict. It allows the organization’s lawyer to represent constituents as
well, subject of course to the same loyalty obligations imposed by Model Rule 1.7.
In an internal investigation of wrongdoing, lawyers hope not to find any conflicts, but
if they do, the organization may be best served by distancing itself and perhaps disciplining
the “rogue” employees. If conflicts develop, the lawyer must withdraw from the
representation. Perez in Chapter 6 and Sanford in this chapter clarify that in the absence of
a clear initial informed consent regarding confidential information, the lawyer will have to
withdraw from representing both clients. 15
Vioxx (Chapter 6) illustrates how lawyers for organizations must respond to another
kind of conflict as well. They must recognize dual roles, which involve both legal advice
and business judgment, such as general counsel–vice president or lawyer and board member
of the entity. The lawyer acting primarily as lawyer will cloak the representation in
privilege; the lawyer acting as business decision maker will not.
The Bounds of the Law
Modern organizations operate in a heavily regulated climate. This means that their lawyers
must be especially sensitive to two massive bodies of law: the criminal law and the law of
fraud. Whenever a client crime or fraud occurs, the Model Rules create lawyer obligations
to clients and third parties. Organizational lawyers must understand these legal limits, not
only to give competent legal advice to their clients, but also to assess their own conduct
under the applicable lawyer code.
Beyond professional discipline, other specialized legal requirements also shape the life of
modern lawyers in some organizations. One example is the Sarbanes-Oxley Act, which
applies to lawyers who represent public companies. 16 Lawyers who violate these regulations
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