A predecessor in-house lawyer represented both our company and a manager who was accused of harassment. That manager is now a former employee, and my notes from a meeting with him contain his account of events. Can I hand those notes to the outside lawyer defending the company in the related lawsuit?

Plain-English summary

The inquiring attorney is a newly hired in-house lawyer for a group of affiliated companies. On his or her first day, the attorney met with a manager who, along with an assistant manager and the company, had been named in a sexual harassment complaint before the Rhode Island Commission for Human Rights; a predecessor in-house lawyer had entered an appearance representing all of the respondents, including the manager, in that Commission matter. The manager and assistant manager have since left the company for unrelated reasons, and the complainant has now sued the company and both former managers in Superior Court. Company general counsel and the inquiring attorney determined that, having represented the manager before the Human Rights Commission, company counsel could not represent the company in the Superior Court action, so the company retained outside counsel for that case.

At the meeting, the inquiring attorney did not substantively advise the manager but asked questions, took a page of handwritten notes, and received a multi-page timeline the manager had prepared, all in a private conference room. The attorney has forwarded a subset of the sexual harassment legal file to company management for its outside counsel, but has withheld the personal notes and the manager's timeline, and states that he or she believes both the company and the manager were clients.

The panel applied Rule 1.13, which provides that a lawyer employed by an organization represents the organization but may also represent its constituents, and requires the lawyer to clarify the client's identity when the organization's and a constituent's interests may be adverse. The panel found the manager had good reason to believe, given the predecessor's appearance on his behalf, that the inquiring attorney's meeting was as his attorney for the harassment claim, giving rise to a reasonable expectation of loyalty and confidentiality; the inquiring attorney himself stated he viewed the manager as a client. Because company counsel and the inquiring attorney had already concluded the manager is a former client, Rule 1.6 bars revealing the notes, the timeline, or any information from those meetings to outside counsel or company management absent the manager's consent.

In practice

The opinion holds that once in-house counsel and the organization have concluded a constituent is (or was) also the lawyer's client, information generated or acquired in meetings with that constituent is protected by Rule 1.6 and may not be disclosed to the organization's outside counsel or to company management without that individual's consent, even where the organization is also the lawyer's client and even where the information may be useful to the organization's defense in related litigation.

Common questions

Q: I met with an employee before I knew whether I represented the company, the employee, or both. Whose information is it?

A: The opinion holds that once it is determined the individual was the lawyer's (former) client, Rule 1.6 protects information generated or acquired in that representation, and the lawyer may not disclose it to the organization or its outside counsel without that individual's consent, even though the lawyer also represents the organization.

Q: Does it matter that the manager already told company management much of what's in the timeline?

A: The opinion does not treat that fact as authorizing disclosure of the attorney's own notes or the timeline itself; the panel's conclusion turns on the manager's status as the inquiring attorney's former client, not on whether the same information exists elsewhere.

Q: What should in-house counsel do at the start of a meeting like this to avoid the problem?

A: The opinion, citing Rule 1.13 and its Comment 10, states organizational counsel has an obligation at the outset to clarify who the client is, identify potential adverse interests between the constituent and the organization, and advise the constituent that independent representation may be advisable.

Background and rules framework

The opinion applies Rhode Island Rule 1.13 (Organization as Client), under which counsel for an organization represents the organization acting through its constituents, may also represent a constituent under Rule 1.7, and must clarify the client's identity when the organization's interests are or become adverse to a constituent's; Comment 10 to Rule 1.13 describes counsel's obligation to clarify roles and advise a constituent of the possible need for independent counsel. The opinion applies Rule 1.6 (Confidentiality of Information) to bar disclosure of information relating to the representation of the former client (the manager) without that client's consent.

Citations and references

Rules of Professional Conduct:

• MR 1.13(a) (organizational counsel represents the organization through its constituents)
• MR 1.13(f) (duty to clarify client identity when interests are adverse to a constituent)
• MR 1.13(g) (dual representation of the organization and a constituent, subject to Rule 1.7)
• MR 1.6 (confidentiality of information relating to representation of the former client)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Op. 514: A Lawyer's Obligations When Advising an Organization About Conduct That May Create Legal Risks for the Organization's Constituents
• ABA Formal Op. 91-361: Representation of a Partnership

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2012-03.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

Rhode Island Supreme Court Ethics Advisory Panel
Opinion No. 2012-03
Issued February 9, 2012

FACTS

The inquiring attorney is a recently hired in-house attorney for a number of
affiliated companies. On his/her first day in the position, the inquiring attorney met with
the manager of one of the companies. The manager, an assistant manager, and the
company had been subjects of a sexual harassment complaint filed by an employee with
the Rhode Island Commission for Human Rights. The Human Rights Commission has
ruled that the complainant has ninety days to file a complaint in Superior Court. The
Commission matter was handled by the company's general counsel and by another in-
house attorney. The in-house attorney who was the inquiring attorney's predecessor, had
entered an appearance before the Human Rights Commission to represent all of the
respondents, including the manager and the company. The manager and assistant manager
no longer work at the company for reasons unrelated to the sexual harassment claim.

The employee who filed the complaint at the Human Rights Commission has filed
suit in Superior Court against the company, its former manager, and its former assistant
manager. The company's general counsel and the inquiring attorney have determined that
having represented the former manager in the matter before the Human Rights
Commission, company counsel could not represent the company in the related Superior
Court action. The company has hired outside counsel to represent it in the Superior Court
matter.

The inquiring attorney states that at his/her meeting with the manager, he did not
substantively advise the manager. However, he/she asked questions, and took a single
page of handwritten notes. Also, the manager submitted to the inquiry attorney a timeline
consisting of several pages. The meeting took place in a conference room with no one else
present. The inquiring attorney further states that he/she believes both the company, and
the manager, were his/her clients.

The inquiring attorney has given a subset of the legal file on the sexual harassment
matter to company management to forward to its outside attorney. However, he/she has
not forwarded his/her own handwritten notes from the meeting with the manager, or the
timeline the manager had submitted to him/her. The inquiring attorney states that he/she
knows that before leaving the company, the manager told company management much of
the information that is in the timeline.

Final Op. 2012-03
Page 2 of 3

ISSUE PRESENTED

The inquiring attorney asks whether it is permissible for him/her to disclose his/her
meeting notes and the manager's timeline relating to the sexual harassment claim to the
outside attorney who represents the company in the related Superior Court action.

OPINION

The manager is the inquiring attorney's former client. Therefore, Rule 1.6
prohibits the inquiring attorney from revealing his/her notes, the manager's timeline, or
any information which the inquiring attorney generated or acquired during meetings with
his/her former client to the company's outside attorney, or to company management,
without the manager's consent.

REASONING

Rule 1.13 of the Rules of Professional Conduct provides that a lawyer employed or
retained by an organization represents the organization. The Rule also provides that such a
lawyer may also represent the organization's constituents, including employees. In
pertinent part, Rule 1.13 states:

Rule 1.13. Organization as client. (a) A lawyer
employed or retained by an organization represents the
organization acting through its duly authorized
constituents.

(f) In dealing with an organization's directors, officers,
employees, members, shareholders or other constituents, a
lawyer shall explain the identity of the client when the
lawyer knows or reasonably should know that the
organization's interests are adverse to those of the
constituents with whom the lawyer is dealing.

(g) A lawyer representing an organization may also
represent any of its directors, officers, employees,
members, shareholders or other constituents, subject to the
provisions of Rule 1.7. If the organization's consent to the
dual representation is required by Rule 1.7, the consent
shall be given by an appropriate official of the organization
other than the individual who is to be represented, or by the
shareholders.

Final Op. 2012-03
Page 3 of 3

This inquiry highlights the importance of an organization's counsel's obligation to
clarify his or her role before counsel takes on the representation of both the organization
and its constituent in the same matter. Counsel, at the outset, has the obligation to make
clear who his or her client is, to determine and explain potential adverse interests between
the constituent and the organization, and to advise the constituent that in light of potential
adverse interests, the constituent may wish to obtain independent representation. See Rule
1.13, Comment [10].

In the instant inquiry, general counsel and the inquiring attorney have determined
that the manager is a former client. The inquiring attorney has stated that in-house counsel
entered his or her appearance in the Human Rights Commission matter on behalf of all
respondents, including the manager. General counsel and the inquiring attorney have
concluded that having represented the manager in the Human Rights Commission matter,
company counsel could not represent the company in the Superior Court action. The
manager had good reason to believe that at the time of the meeting with the inquiring
attorney, the inquiring attorney was his attorney for the sexual harassment claim. With
that belief came a reasonable expectation of loyalty and confidentiality. The inquiring
attorney himself/herself has stated that he/she viewed the manager as his/her client.

Rule 1.6 entitled "Confidentiality of information" prohibits a lawyer from revealing
information relating to the representation of a client, unless the client consents. The Panel
concludes that absent the manager's consent, the inquiring attorney is prohibited from
disclosing his/her notes, the manager's timeline, or any information which the inquiring
attorney generated or acquired during the meetings with his/her former client, the manager,
to the company's outside attorney or to company management.