Rule Text (verbatim from The Florida Bar)
(a) Representation of Organization. A lawyer employed or
retained by an organization represents the organization acting
through its duly authorized constituents.
(b) Violations by Officers or Employees of Organization. If
a lawyer for an organization knows that an officer, employee, or
other person associated with the organization is engaged in action,
intends to act, or refuses to act in a matter related to the
representation that is a violation of a legal obligation to the
organization or a violation of law that reasonably might be imputed
to the organization and is likely to result in substantial injury to the
organization, the lawyer shall proceed as is reasonably necessary in
the best interest of the organization. In determining how to
proceed, the lawyer shall give due consideration to the seriousness
of the violation and its consequences, the scope and nature of the
lawyer’s representation, the responsibility in the organization and
the apparent motivation of the person involved, the policies of the
organization concerning such matters, and any other relevant
considerations. Any measures taken shall be designed to minimize
disruption of the organization and the risk of revealing information
relating to the representation to persons outside the organization.
Such measures may include among others:
(1) asking reconsideration of the matter;
(2) advising that a separate legal opinion on the matter
be sought for presentation to appropriate authority in the
organization; and
(3) referring the matter to higher authority in the
organization, including, if warranted by the seriousness of the
matter, referral to the highest authority that can act in behalf of the
organization as determined by applicable law.
(c) Resignation as Counsel for Organization. If, despite the
lawyer’s efforts in accordance with subdivision (b), the highest
authority that can act on behalf of the organization insists upon
action, or a refusal to act, that is clearly a violation of law and is
likely to result in substantial injury to the organization, the lawyer
may resign in accordance with rule 4-1.16.
(d) Identification of Client. 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.
(e) Representing Directors, Officers, Employees, Members,
Shareholders, or Other Constituents of Organization. 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 4-1.7. If the organization’s consent
to the dual representation is required by rule 4-1.7, 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.
Educational reference. This page summarizes a Florida Rule of Professional Conduct for educational purposes. The rule text and Comment are mirrored from the Florida Bar's official publication and are public domain. The plain-English summary and any commentary are the opinion of Phillips, Hunt & Walker and are general information only — not legal advice. Reading this page does not create an attorney-client relationship. If you believe a Florida lawyer has violated this rule, you can file a complaint with The Florida Bar at floridabar.org. Past results do not guarantee a similar outcome.
What this rule means in plain English
When a Florida lawyer represents a corporation, partnership, or other organization, the client is the entity itself — not the people who run it. If the lawyer learns about wrongdoing by a corporate officer that could harm the entity, the lawyer has specific duties to escalate within the organization. The rule clarifies that the lawyer’s loyalty runs to the corporation, even when individuals in the corporation are paying the bills.
Florida Bar Ethics Opinions interpreting this rule
- Opinion 88-14 (1988)
<p>If you sue a corporation, your lawyer can interview the company's former employees and former managers about the case without permission from the corporation's attorney. Current employees whose conduct is at issue still need corporate counsel's consent. The line between current and former matters — one of the first things your lawyer will want to identify in any case against a company.</p>
Read on floridabar.org → - Opinion 78-4 (1978)
<p>Once the other side has retained a lawyer for a matter — even before any lawsuit is filed — your lawyer cannot communicate directly with that party. With a corporate adversary, your lawyer must go through corporate counsel for the corporation's officers, directors, and managing agents, but can speak directly to lower-level employees not involved in the matter.</p>
Read on floridabar.org → - Opinion 09-1 (2009)
<p>A lawyer pursuing a claim against a state agency cannot directly contact agency officers, directors, managers, or employees whose actions are at issue in the matter — without first getting consent from the agency's lawyer. The rule treats government agencies like corporate parties: the represented-party rule blocks back-channel communications with the people who matter to the case.</p>
Read on floridabar.org → - Opinion 98-3 (1998)
<p>Lawyers employed in-house by an insurance company to represent the company's insureds cannot describe their setup as if it were a separate, independent law firm. The lawyer's actual relationship with the insurer — staff counsel, captive counsel — must be disclosed to the insured client and appear on the lawyer's letterhead and business card. The rule blocks marketing that hides who the lawyer actually works for.</p>
Read on floridabar.org → - Opinion 02-7 (2002)
<p>An insurance defense lawyer hired by an insurance company to represent an insured must provide a Statement of Insured Client's Rights — but only if the claim involves an element of personal injury. The disclosure requirement is narrower than people think. For purely commercial-injury or pure-discrimination claims, the formal statement isn't triggered; for mixed claims with any PI component, it is.</p>
Read on floridabar.org →
Comment (verbatim from The Florida Bar)
The entity as the client
An organizational client is a legal entity, but it cannot act
except through its officers, directors, employees, shareholders, and
other constituents. Officers, directors, employees, and
shareholders are the constituents of the corporate organizational
client. The duties defined in this comment apply equally to
unincorporated associations. “Other constituents” as used in this
comment means the positions equivalent to officers, directors,
employees, and shareholders held by persons acting for
organizational clients that are not corporations.
When 1 of the constituents of an organizational client
communicates with the organization’s lawyer in that person’s
organizational capacity, the communication is protected by rule 4-
1.6. Thus, by way of example, if an organizational client requests
its lawyer to investigate allegations of wrongdoing, interviews made
in the course of that investigation between the lawyer and the
client’s employees or other constituents are covered by rule 4-1.6.
This does not mean, however, that constituents of an organizational
client are the clients of the lawyer. The lawyer may not disclose to
such constituents information relating to the representation except
for disclosures explicitly or impliedly authorized by the
organizational client in order to carry out the representation or as
otherwise permitted by rule 4-1.6.
When constituents of the organization make decisions for it,
the decisions ordinarily must be accepted by the lawyer even if their
utility or prudence is doubtful. Decisions concerning policy and
operations, including ones entailing serious risk, are not as such in
the lawyer’s province. However, different considerations arise when
the lawyer knows that the organization may be substantially injured
by action of a constituent that is in violation of law. In such a
circumstance, it may be reasonably necessary for the lawyer to ask
the constituent to reconsider the matter. If that fails, or if the
matter is of sufficient seriousness and importance to the
organization, it may be reasonably necessary for the lawyer to take
steps to have the matter reviewed by a higher authority in the
organization. Clear justification should exist for seeking review over
the head of the constituent normally responsible for it. The stated
policy of the organization may define circumstances and prescribe
channels for such review, and a lawyer should encourage the
formulation of such a policy. Even in the absence of organization
policy, however, the lawyer may have an obligation to refer a matter
to higher authority, depending on the seriousness of the matter and
whether the constituent in question has apparent motives to act at
variance with the organization’s interest. Review by the chief
executive officer or by the board of directors may be required when
the matter is of importance commensurate with their authority. At
some point it may be useful or essential to obtain an independent
legal opinion.
The organization’s highest authority to whom a matter may be
referred ordinarily will be the board of directors or similar governing
body. However, applicable law may prescribe that under certain
conditions highest authority reposes elsewhere; for example, in the
independent directors of a corporation.
Relation to other rules
The authority and responsibility provided in this rule are
concurrent with the authority and responsibility provided in other
rules. In particular, this rule does not limit or expand the lawyer’s
responsibility under rule 4-1.6, 4-1.8, 4-1.16, 4-3.3, or 4-4.1. If the
lawyer’s services are being used by an organization to further a
crime or fraud by the organization, rule 4-1.2(d) can be applicable.
Government agency
The duty defined in this rule applies to governmental
organizations. However, when the client is a governmental
organization, a different balance may be appropriate between
maintaining confidentiality and assuring that the wrongful official
act is prevented or rectified, for public business is involved. In
addition, duties of lawyers employed by the government or lawyers
in military service may be defined by statutes and regulation.
Defining precisely the identity of the client and prescribing the
resulting obligations of such lawyers may be more difficult in the
government context and is a matter beyond the scope of these rules.
Although in some circumstances the client may be a specific
agency, it may also be a branch of the government, such as the
executive branch, or the government as a whole. For example, if
the action or failure to act involves the head of a bureau, either the
department of which the bureau is a part or the relevant branch of
government may be the client for purposes of this rule. Moreover,
in a matter involving the conduct of government officials, a
government lawyer may have authority under applicable law to
question such conduct more extensively than that of a lawyer for a
private organization in similar circumstances. This rule does not
limit that authority.
Clarifying the lawyer’s role
There are times when the organization’s interest may be or
becomes adverse to those of 1 or more of its constituents. In such
circumstances the lawyer should advise any constituent whose
interest the lawyer finds adverse to that of the organization of the
conflict or potential conflict of interest that the lawyer cannot
represent such constituent and that such person may wish to
obtain independent representation. Care must be taken to assure
that the constituent understands that, when there is such adversity
of interest, the lawyer for the organization cannot provide legal
representation for that constituent and that discussions between
the lawyer for the organization and the constituent may not be
privileged.
Whether such a warning should be given by the lawyer for the
organization to any constituent may turn on the facts of each case.
Dual representation
Subdivision (e) recognizes that a lawyer for an organization
may also represent a principal officer or major shareholder.
Derivative actions
Under generally prevailing law, the shareholders or members
of a corporation may bring suit to compel the directors to perform
their legal obligations in the supervision of the organization.
Members of unincorporated associations have essentially the same
right. Such an action may be brought nominally by the
organization, but usually is, in fact, a legal controversy over
management of the organization.
The question can arise whether counsel for the organization
may defend such an action. The proposition that the organization
is the lawyer’s client does not alone resolve the issue. Most
derivative actions are a normal incident of an organization’s affairs,
to be defended by the organization’s lawyer like any other suit.
However, if the claim involves serious charges of wrongdoing by
those in control of the organization, a conflict may arise between
the lawyer’s duty to the organization and the lawyer’s relationship
with the board. In those circumstances, rule 4-1.7 governs who
should represent the directors and the organization.
Representing related organizations
Consistent with the principle expressed in subdivision (a) of
this rule, a lawyer or law firm who represents or has represented a
corporation (or other organization) ordinarily is not presumed to
also represent, solely by virtue of representing or having
represented the client, an organization (such as a corporate parent
or subsidiary) that is affiliated with the client. There are exceptions
to this general proposition, such as, for example, when an affiliate
actually is the alter ego of the organizational client or when the
client has revealed confidential information to an attorney with the
reasonable expectation that the information would not be used
adversely to the client’s affiliate(s). Absent such an exception, an
attorney or law firm is not ethically precluded from undertaking
representations adverse to affiliates of an existing or former client.
Amended July 23, 1992, effective Jan. 1, 1993 (605 So.2d 252); amended
March 23, 2006, effective May 22, 2006 (933 So.2d 417).