Whom (or What) Does the Organization's Lawyer Represent?: An Anatomy of Intra-client Conflict

William H. Simon, Columbia Law School


Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. The results have been inconsistent and often implausible. This article surveys current approaches and offers recommendations for improvement. It analyzes the distinction between "joint" representation and "entity" representation and argues that the differences between them should not be as great as conventional discussion assumes. With respect to the notion of "entity" representation, it criticizes a prominent tendency in the cases to conflate the interests of the organization as an "entity" with the goals of its incumbent management. It also criticizes the approach of the Model Rules of Professional Conduct and the Restatement of the Law Governing Lawyers, which identifies the "entity" with its authority structure. These approaches suffer from the influence of anachronistic corporate law doctrine that implies that the interests that constitute a corporation's identity do not include norms of fair distribution among its constituents. An adequate understanding of organizational representation requires a view of the corporation as a Framework of Dealing that includes both procedural and distributive norms. The analysis focuses primarily on corporations, but a concluding section suggests that it also applies to other organizational forms.