Ethics, Professional Responsibility and Conflicts of Interest
Who Is the Client?
In a corporate setting the client is the entity, not the individual director, officer or employee who gives instructions. That single principle drives most ethics questions. When interviewing employees, counsel should give an Upjohn-style warning: the lawyer represents the company, the conversation is privileged as to the company, and the individual may wish to obtain separate advice.
Privilege is narrower than people assume. It covers confidential communications for the dominant purpose of legal advice, not business or compliance advice merely because a lawyer sent the email. Distribution beyond the privileged circle can waive it; the crime-fraud exception defeats it.
Conflicts come in several forms: concurrent representation of adverse parties (usually prohibited without informed written consent, and sometimes unconsentable), former-client conflicts (substantially related matter with confidential information), personal interest conflicts, and positional conflicts between entities in a group. Conflicts are generally imputed across a firm; screening may cure some, not all.
Other duties: competence, diligence, communication, confidentiality, candour to tribunals, fairness to opposing parties, no contact with represented persons, proper handling of client funds, and supervision of non-lawyers. Non-lawyer compliance officers are not bound by bar rules but are bound by company policy and any professional certification code.
Rule of thumb: when an individual's interest diverges from the entity's, stop, clarify the client, and escalate - usually up the ladder, and where required, to the board.
Worked example: a CFO asks for advice about personal exposure in an investigation. The company's lawyer must explain that separate counsel is needed.