Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Legal doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. Under current doctrine, the lawyer's responsibilities differ strongly depending on whether the representation is characterized as 'joint" representation of the organization 's constituents or "entity" representation. This Article argues that the choice between the two characterizations often has been arbitrary and that the underlying differences between them have been misunderstood. With respect to entity representation, it criticizes a prominent tendency in the cases to conflate the interests of the organization with the goals of its controlling management. It also criticizes the approaches of the Model Rules of Professional Conduct and the Restatement of the Law Governing Lawyers, which identify the entity with its authority structure. These approaches suffer from the influence of anachronistic corporate law doctrine that defines the interests of an organization largely in terms of maximizing aggregate benefits and ignores norms offair distribution among constituents. An adequate understanding of organizational representation requires a view of the corporation as a "Framework of Dealing" that includes both control or authority norms and distributive norms. The analysis focuses on corporations, but a concluding Part VII shows that it also applies to other organizational forms.
William H. Simon,
Whom (Or What) Does the Organization's Lawyer Represent?: An Anatomy of Intraclient Conflict,
Cal. L. Rev.
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