RI-396
September 8, 2026
SYLLABUS
Because a lawyer engaged to represent an organization must communicate with individual board members, officers, or other constituents, the lawyer must avoid any confusion about whom they represent. Michigan Rules of Professional Conduct (MRPC) 4.3(a), 1.13(a) and 1.13(d) require lawyers to take reasonable steps to ensure that constituents understand that the lawyer represents the organization and not the constituents as individuals. Representation of the organization may include advising how certain situations and organizational actions may legally impact the organization’s constituents, as a matter of sound organizational functionality, and not as part of representation of constituents. Lawyers should regularly remind constituents of their role as counsel for the organization only, and in circumstances where constituents’ personal interests are implicated, advise constituents to seek independent counsel.
References: MRPC 1.1, 1.2, 1.4, 1.7, 2.1, 4.3(a), 1.13(a), 1.13(d) and 1.13(e).
TEXT
Lawyers are routinely engaged by organizations on a wide range of legal matters. As explained in Michigan Rule of Professional Conduct (MRPC) 1.13(a), the organization is the attorney’s client, as distinct from its directors, officers, employees, members, shareholders, or other constituent members (“constituents”). Because organizations can act only through their constituents, lawyers convey legal advice through these constituents. Given their role as the conduit of legal advice, constituents could misunderstand their relationship with the lawyer and believe the lawyer is representing them, individually, or otherwise advising or protecting the constituents’ personal interests. It is important that the lawyer dispel any confusion about whom the lawyer represents.
A lawyer may provide advice to an organization about future conduct that affects both the organization and its constituents. This opinion reviews organizational representations and addresses two questions that lawyers often face in these representations. First, do MRPC 4.3(a) and 1.13(d) require the lawyer to take steps to prevent or correct any misunderstanding that constituents may have regarding the lawyer’s role and whom the lawyer represents? Second, does the lawyer’s duty to competently advise the organization under MRPC 1.1, 1.2, 1.4 and 2.1 include an obligation to inform the organization of potential legal consequences for its constituents?
Representation of an Organization Only
Lawyers representing organizational clients must communicate through constituents designated by the organization. Although the lawyer must communicate with constituents to effectuate the organization’s legal needs, the client is the organization itself—not its individual officers, directors, or employees—unless a separate attorney-client relationship is established with one or more of those constituents.1 MRPC 1.13(a) explains that a lawyer represents the organization “as distinct from its directors, officers, employees, members, shareholders, or other constituents,” while MRPC 1.13(e) allows for dual representation2 only in accordance with MRPC 1.7, Conflict of Interest: General Rule.
When a lawyer represents an organization, the lawyer’s advice may have direct or indirect legal implications for its constituents. The inherent nature of the lawyer’s representation of an organization, through communications with constituents, poses the risk that constituents will mistakenly believe that the lawyer’s advice to the organization includes advice to the constituents or that a client-lawyer relationship has been formed with the constituents, individually, such that the lawyer is acting in the constituents’ best interests.
Communicating the Lawyer’s Role in Representations of Organizations
When representing organizations, lawyers must clearly communicate the scope of their representation to avoid misunderstandings about whom they represent. Under MRPC 1.2 and 1.4, a lawyer has a duty to communicate with their clients about the objectives and scope of their representation. When the client is an organization, this includes actively informing constituents that the lawyer represents the entity, not the constituents personally.
The lawyer should communicate their role early, in writing. Early disclosure significantly reduces the risk that a constituent will later claim the lawyer represented them, either jointly with the organization or individually. In particular, the engagement agreement should clearly identify the organization as the only client and directly state that the lawyer does not represent the constituents. It should also direct the organization to inform its constituents of the lawyer’s role. This not only protects the lawyer but also helps preserve the organization’s interests by reinforcing a clear and consistent understanding of the client-lawyer relationship. Lawyers should continue to communicate their role and whom they represent in writing whenever they believe there may be confusion. A simple follow-up email confirming the discussion and clarifying roles is sufficient and may become critically important if disputes later arise.
MRPC 4.3(a) speaks to the “self-represented” person and applies equally to the unrepresented person. The rule requires that when a lawyer deals with a person who is not represented by counsel, the lawyer must not act as if they are neutral or disinterested. If the lawyer knows or should reasonably know that the unrepresented person misunderstands the lawyer’s role, Rule 4.3(a) requires that the lawyer take reasonable steps to correct that misunderstanding. The constituents of the organization who make decisions and provide assistance, or otherwise interact with the lawyer, are unlikely to have legal counsel available or to understand that their personal interests are implicated at all. Lawyers must clarify that their loyalty, legal advice, and ethical obligations run solely to the organization, not to the constituents personally.
If the organization’s lawyer fails to clarify their role, the lawyer risks establishing a fiduciary relationship with a constituent.3
In appropriate situations, lawyers for an organization should provide admonitions akin to “Upjohn warnings” to constituents with whom the lawyer is dealing.4 While Upjohn deals with clarifying client identity and privilege in the context of internal investigations, diligent role clarification is a continuous responsibility in all organizational representations and serves to avoid misunderstandings and potential conflicts while clearly defining the lawyer’s loyalty and duties. Effective Upjohn warnings clarify “that the corporate lawyers do not represent the individual employee; that anything said by the employee to the lawyers will be protected by the company's attorney-client privilege subject to waiver of the privilege in the sole discretion of the company; and that the individual may wish to consult with his own attorney if he has any concerns about his own potential legal exposure.”5
When appropriate, the lawyer should advise constituents to seek their own counsel for issues affecting their individual legal interests.6 Clear communication about the lawyer’s role helps protect both the organization and its constituents.
Legal Advice to Organizations Implicating Constituent Members’ Interests
An organization’s proposed course of action or decisions made by the constituents may expose constituent members to personal legal risks, such as civil or criminal liability. In situations where the lawyer knows the legal interests of any constituents are involved, a lawyer’s duty to provide competent and informative representation to the organization may extend to advising the organization not only about the legal risks the organization faces but also the legal risks its constituents might face as a result of decisions they make on behalf of the organization. Such advice is for the benefit of the organization, not the constituents.
The Rules do not impose a duty on the lawyer to affirmatively discover or determine the legal interests of non-client constituents, unless so directed by the client organization. Yet, a lawyer cannot ignore the interests of the constituents when those interests are reasonably clear from the circumstances and will affect the organization and its decisions, goals, and potential liability. When determining whether those constituent interests must be disclosed to and discussed with the organization, the lawyer must determine whether legal advice to the organization will be fully informed under Rule 1.4 without the information pertaining to its constituents’ interests.7
Whether the lawyer must explicitly advise the organization about risks to constituent members will often be heavily dependent on the facts of the case, including the severity and likelihood of the risk and whether the organization’s interests will be affected, especially where governance rules, indemnification obligations, or operational issues are implicated.
Joint Representation of the Organization and its Constituents
MRPC 1.13(e) allows a lawyer to represent constituents, as well as the organization, only when the representation would comply with MRPC 1.7, Conflict of Interest: General Rule. That is, when there is no direct conflict between the organization and the constituent, and the lawyer has no material limitations preventing the representation, joint representation is permissible. MRPC 1.7 allows representation when there is an identified conflict of interest only if the lawyer reasonably believes that the joint representation will not adversely affect either client and the lawyer obtains consent after consultation from all clients. MRPC 1.13(e) requires that the organization’s consent be given by an authorized representative of the organization who is not the jointly represented constituent.
Both the lawyer and the joint clients must understand that adversity may arise during the representation, making joint representation untenable, such that the lawyer may be required to withdraw from representing one or both of the joint clients.8 The prospective clients must also be advised of the ramifications of joint representation regarding the attorney-client privilege as between the joint clients and as to third parties.
CONCLUSION
When representing an organization, lawyers communicate legal advice through the organization’s constituent members whose actions may carry legal consequences for the constituents as individuals. This dual impact requires the lawyer to balance duties to the organizational client with ethical responsibilities to prevent misunderstandings by nonclient constituents.
A lawyer representing an organization only represents the organization and not any individual constituent of the organization. The lawyer should actively dispel any ambiguity or misunderstanding about their role. Based on the circumstances of the case and specific interactions with constituents, the lawyer may need to advise the nonclient constituent that:
- the lawyer represents only the organization, not the constituents;
- the lawyer is rendering advice to the organization through the constituents, not to, or for the benefit of, the constituents;
- the lawyer is rendering legal services in the interests of the organization and not necessarily those of the constituents; and
- the constituents should seek independent legal advice about how a proposed course of conduct will affect their personal legal interests.
While representing an organization, a lawyer may be required to identify personal risks to one or more constituents. That identification is for the purpose of advising the organization how to proceed, in accordance with any governance parameters of the organization. Such advice is for the benefit of the organization and does not transform the lawyer’s representation of the organization into representation of a constituent.
A lawyer may undertake joint representation of an organization and one or more of its constituents only if the lawyer complies with MRPC 1.7(b) regarding multiple client representation, including obtaining consent from the joint clients after consultation.9
1. This is true even in situations where a lawyer is representing a corporation with only one shareholder. While an organization’s attorney could owe fiduciary duties to constituent members with whom the attorney does not have a client-lawyer relationship, the client is still the organization itself. See Fassihi v. Sommers, Schwartz, Silver, Schwarts & Tyler, P.C., 107 Mich. App. 509, at 514 (1981) (“A corporation exists as an entity apart from its shareholders, even where the corporation has but one shareholder.… [T]he attorney’s client is the corporation and not the shareholders.”) (internal citations omitted).
2. MRPC 1.13(e) and its comments use “dual representation.” In this opinion, the more common wording “joint representation” is used.
3. See Fassihi v Sommers, Schwartz, Silver, Schwartz & Tyler, PC, 107 Mich App 509 (1981) (minority shareholder in a closely held corporation brought a valid claim against the corporation’s counsel for breach of fiduciary duty when the minority shareholder claimed to have reasonably believed the corporation’s counsel was protecting the minority shareholder’s interests but took actions allegedly averse to the minority shareholder).
4. See Upjohn Co v United States, 449 US 383 (1981).
5. United States v Ruehle, 583 F3d 600, 604 n. 4 (9th Cir 2009) (citing Upjohn Co v. United States, 449 US at 393–96); see also American Bar Association (“ABA”) Model Rule of Professional Conduct 1.13, cmt. [10] (Lawyers should provide warnings in situations in which they reasonably know constituents’ interests are averse to their organizations’ interests.).
6. See, Comment to MRPC 4.3.
7. See generally, ABA Formal Opinion 514.
8. Michigan Ethics Opinion RI-139 and RI-111.
9. Rule 1.7(b)(2) further provides: “When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.”