When a corporation's lawyer interviews employees in an internal investigation, does the lawyer represent the employees, and what must the lawyer tell them?

Plain-English summary

Opinion 269 (adopted January 15, 1997) addressed the duties of a lawyer (in-house or outside) conducting an internal investigation of possible wrongdoing by a corporate client or its employees, where the lawyer reviews records and interviews officials and employees. The inquirer asked whether an attorney-client relationship arises between the investigating lawyer and the employee-interviewees, what duties the lawyer owes them, and how confidentiality applies to what they tell the lawyer.

The committee grounded the analysis in Rule 1.13(a): a lawyer retained by an organization represents the organization, acting through its constituents, and not the officers or employees themselves. So the investigating lawyer has no attorney-client relationship with the constituents he interviews. But because an employee may assume the lawyer also represents his personal interests, Rule 1.13(b) requires the lawyer to explain the identity of his client "when it is apparent that the organization's interests may be adverse to those of the constituents with whom the lawyer is dealing." The committee read "may be adverse" broadly (a possible adversity exists whenever the corporation could take a position adverse to the employee, such as disciplining him or distancing itself from his conduct) but limited the trigger to situations where the possible conflict is "apparent," meaning actually apparent to the lawyer or to a reasonable lawyer in the circumstances. The same duty to clarify can arise under Rule 4.3, which bars a lawyer from leaving an unrepresented person with the impression that the lawyer is disinterested.

On confidentiality, the committee explained that communications with the interviewee are protected by Rule 1.6, but for the benefit of the corporation, not the employee; the company controls the information and may use it for its purposes, as reflected in Upjohn Co. v. United States. The committee then addressed two further arrangements. A corporation may hire and pay for a lawyer to represent a constituent under Rule 1.8(e), so long as the client consents, the payer does not interfere with the lawyer's judgment or the relationship, and confidences are protected; in that case the constituent, not the paying corporation, is the lawyer's sole client. Finally, where a lawyer is asked to represent the corporation and a constituent, or two constituents, in the same matter, Rule 1.7 controls: direct adversity is prohibited under Rule 1.7(a), and even aligned dual representations require informed consent under Rules 1.7(b)(2), (3) and (c) where one representation may adversely affect the other.

Currency note

This opinion was issued in 1997, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or 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, deadline, or requirement mentioned here.

Common questions

Q: Does the corporation's lawyer also represent the employees he interviews?

A: No. The committee concluded that under Rule 1.13(a) the lawyer represents the corporation only, and has no attorney-client relationship with the constituents he interviews in the investigation.

Q: What must the lawyer tell an employee being interviewed?

A: The committee concluded that under Rules 1.13(b) and 4.3 the lawyer must clarify that he represents the corporation when it is apparent the company's interests may be adverse to the employee, so the employee is not left with the impression the lawyer is also representing him.

Q: Can the employee claim the interview is confidential to him?

A: No. The committee concluded that the communications are protected by Rule 1.6 for the benefit of the corporation, which controls and may use the information; the employee has no confidentiality right of his own, consistent with Upjohn.

Q: Can the company pay for a separate lawyer for an employee?

A: Yes. The committee concluded that under Rule 1.8(e) the corporation may pay for separate counsel for a constituent, provided the client consents, the payer does not interfere with the lawyer's judgment, and confidences are protected; the constituent is then the lawyer's sole client.

Background and rules framework

The opinion interpreted D.C. Rule 1.13 (organization as client, including the Rule 1.13(b) duty to clarify the client's identity and the Rule 1.13(c) allowance of dual representation subject to Rule 1.7), Rule 4.3 (dealing with unrepresented persons), Rule 1.8(e) (third-party payment of fees), and Rule 1.7 (conflicts in joint representation). It relied on Upjohn Co. v. United States for the corporate ownership of the privilege.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.13 / Model Rule 1.13 (organization as client; duty to clarify role)
• D.C. RPC 4.3 / Model Rule 4.3 (dealing with unrepresented persons)
• D.C. RPC 1.8(e) / Model Rule 1.8 (third-party payment of legal fees)
• D.C. RPC 1.7 / Model Rule 1.7 (conflicts in joint representation)

Cases:

• Upjohn Co. v. United States, 449 U.S. 383 (1981), corporate ownership of the attorney-client privilege
• Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978), impression of representation and resulting confidentiality

Other opinions cited:

• D.C. Ethics Op. 159 (lawyer for the entity, not its constituents)

See also

• ABA Formal Op. 514: Advising an Organization on Constituent Legal Risk
• DC Ethics Op. 328: Personal Representation of Organization Constituents
• DC Ethics Op. 305: Representation of a Trade Association

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-269