When a lawyer represents a partnership, is the client the firm or the individual partners, and can the lawyer keep information from individual partners or also represent them?
ABA Formal Opinion 91-361: Representation of a Partnership
Short answer: The opinion concluded that a partnership is an "organization" within Rule 1.13, so a lawyer who represents a partnership generally represents the entity rather than the individual partners; the lawyer must avoid unintentionally creating an attorney-client relationship with individual partners, may represent partners in matters not clearly adverse to the partnership, and ordinarily may not withhold partnership-representation information from the partners.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The committee resolved whether a partnership is an "organization" under Rule 1.13(a), which provides that "a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." It concluded that a partnership is such an entity, so a lawyer who represents a partnership "represents the entity rather than the individual partners unless the specific circumstances show otherwise." The opinion rooted this in the entity concept underlying Rule 1.13: a partnership is a separate jural entity, and under agency law the lawyer is the agent of the organization as principal, professionally responsible to the entity and not to its individual owners.
On the recurring question of when the partnership's lawyer also has an attorney-client relationship with an individual partner, the committee said that depends on the specific circumstances, but the default is entity-only representation. It cautioned that a lawyer representing a partnership "must take care to avoid the creation of an attorney-client relationship with individual partners" unless that is intended, because an inadvertent individual relationship can generate conflicts under Rule 1.7. At the same time, representing the partnership "does not necessarily preclude the representation of individual partners in matters not clearly adverse to the interests of the partnership," nor undo a pre-existing individual representation, so the entity characterization is a starting point, not an absolute bar to joint or separate representation.
On information, the committee addressed whether a partner may insist on access to what the lawyer learns. Because confidential information received while representing the partnership is "information relating to the representation" of the partnership under Rule 1.6(a), it "normally may not be withheld from the individual partners." The opinion treated the partners, acting for the entity, as entitled to the partnership's information, distinguishing that from information a partner might convey in a separate individual representation. The committee worked the analysis through Rule 1.13's provisions on acting for the entity and on conflicts among the entity and its constituents.
Currency note
This opinion was issued in 1991, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which revised Rule 1.13 (including the constituent-conflict and reporting provisions) and Rule 1.7. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Who is the client when a lawyer represents a partnership?
A: The entity. The committee held a partnership is an organization under Rule 1.13, so the lawyer generally represents the partnership itself, not the individual partners, unless circumstances show otherwise.
Q: Could the partnership's lawyer also represent an individual partner?
A: Yes, in matters not clearly adverse to the partnership's interests, and the opinion noted a prior individual representation is not preempted, though the lawyer must watch for Rule 1.7 conflicts.
Q: Could the lawyer keep partnership information from an individual partner?
A: Ordinarily no. The committee held that information relating to the representation of the partnership normally may not be withheld from the individual partners.
Background and rules framework
The opinion interpreted Rule 1.13 (organization as client), reading 1.13(a) to make a partnership an entity client, and applied Rule 1.7 (conflicts, where an individual-partner relationship arises) and Rule 1.6(a) (confidentiality, in deciding what partnership information the partners may access). It noted predecessor Model Code EC 5-18 on a lawyer's allegiance to the entity. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.
Citations and references
Rules of Professional Conduct:
- MR 1.13 (organization as client; 1.13(a) representing the entity)
- MR 1.7 (conflict of interest with a current client)
- MR 1.6(a) (confidentiality of information)
See also
- ABA Formal Op. 514: Advising an organization about constituent legal risk
- ABA Formal Op. 06-443: Contact with an organization's inside counsel
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 91-361.pdf