4. Rule 1.13 (b)-(e)
Rule 1.13 (a), (f) & (g)
Reporting Up the
Entity As Client
Chain
Representing Representing
ONLY the the Entity
Entity AND a
Constituent
5. Rule 1.13 (b)-(e)
Rule 1.13 (a), (f) & (g)
Reporting Up the
Entity As Client
Chain
Representing Representing
ONLY the the Entity
Entity AND a
Constituent
6. Rule 1.13 (a), (f) Representing Treatment of Information
& (g) ONLY the When Interacting
Entity As Client
Entity With A Constituent
“One-Way Door”
7. Rule 1.13 (a), (f) Representing Treatment of Information
& (g) ONLY the When Interacting
Entity As Client
Entity With A Constituent
“One-Way Door”
Information Learned From Constituent is Client’s Information
• Attorney should share the information with the entity’s leadership, to the extent
necessary to keep the client “reasonably informed about the status of the
matter.” R. 1.4(a)(3).
• The entity can decide whether to disclose that information to third parties. R.
1.6(a).
8. Rule 1.13 (a), (f) Representing Treatment of Information
& (g) ONLY the When Interacting
Entity As Client
Entity With A Constituent
“One-Way Door”
Information Learned From Constituent is Client’s Information
• Attorney should share the information with the entity’s leadership, to the extent
necessary to keep the client “reasonably informed about the status of the
matter.” R. 1.4(a)(3).
• The entity can decide whether to disclose that information to third parties. R.
1.6(a).
Attorney Can’t Share Client’s Information with Constituent Unless Authorized
• Authorization can be either express or implied “in order to carry out the
representation.” R. 1.6(a).
9. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
10. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
Governing
Lawyers § 14
11. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or Governing
reasonably should Lawyers § 14
know that the
organization’s
interests are
adverse to those of
constituent
12. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or Governing
reasonably should Lawyers § 14
know that the
organization’s
interests are
adverse to those of
constituent
Identity of Constituent Discussions between
client may wish to constituent & lawyer
(lawyer’s not obtain own are protected by entity’s
disinterested; lawyer attorney-client
lawyer doesn’t privilege, subject to
represent waiver at entity’s sole
constituent) discretion
13. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or To ensure that Governing
reasonably should communications Lawyers § 14
know that the between constituent &
organization’s attorney are protected
interests are by the entity’s
adverse to those of attorney-client
constituent privilege
Identity of Constituent Discussions between
client may wish to constituent & lawyer
(lawyer’s not obtain own are protected by entity’s
disinterested; lawyer attorney-client
lawyer doesn’t privilege, subject to
represent waiver at entity’s sole
constituent) discretion
14. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or To ensure that Governing
reasonably should communications Lawyers § 14
know that the between constituent &
organization’s attorney are protected
interests are by the entity’s
adverse to those of attorney-client
constituent privilege
Identity of Constituent Discussions between Interview is Content of
client may wish to constituent & lawyer being conducted interview
(lawyer’s not obtain own are protected by entity’s to gather facts should be
disinterested; lawyer attorney-client in order to kept
lawyer doesn’t privilege, subject to provide legal confidential
represent waiver at entity’s sole advice to entity
constituent) discretion
15. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or To ensure that If know or should Governing
reasonably should communications know that Lawyers § 14
know that the between constituent & unrepresented
organization’s attorney are protected person
interests are by the attorney-client misunderstands
adverse to those of privilege the lawyer’s role
constituent
Identity of Constituent Discussions between Interview is Content of
client may wish to constituent & lawyer being conducted interview
(lawyer’s not obtain own are protected by entity’s to gather facts should be
disinterested; lawyer attorney-client in order to kept
lawyer doesn’t privilege, subject to provide legal confidential
represent waiver at entity’s sole advice to entity
constituent) discretion
16. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or To ensure that If know or should Governing
reasonably should communications know that Lawyers § 14
know that the between constituent & unrepresented
organization’s attorney are protected person
interests are by the attorney-client misunderstands
adverse to those of privilege the lawyer’s role
constituent
Identity of Constituent Discussions between Interview is Content of
client may wish to constituent & lawyer being conducted interview
(lawyer’s not obtain own are protected by entity’s to gather facts should be
disinterested; lawyer attorney-client in order to kept
lawyer doesn’t privilege, subject to provide legal confidential
represent waiver at entity’s sole advice to entity
constituent) discretion
17. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or To ensure that If know or should If know or reasonably Governing
reasonably should communications know that should know that Lawyers § 14
know that the between constituent & unrepresented unrepresented
organization’s attorney are protected person person’s interests
interests are by the attorney-client misunderstands have a reasonable
adverse to those of privilege the lawyer’s role possibility of being in
constituent conflict with entity’s
interest
Identity of Constituent Discussions between Interview is Content of No legal
client may wish to constituent & lawyer being conducted interview advice, oth
(lawyer’s not obtain own are protected by entity’s to gather facts should be er than
disinterested; lawyer attorney-client in order to kept advice to
lawyer doesn’t privilege, subject to provide legal confidential secure
represent waiver at entity’s sole advice to entity counsel
constituent) discretion
18. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or To ensure that If know or should If know or reasonably Governing
reasonably should communications know that should know that Lawyers § 14
know that the between constituent & unrepresented unrepresented
organization’s attorney are protected person person’s interests
interests are by the attorney-client misunderstands have a reasonable
adverse to those of privilege the lawyer’s role possibility of being in
constituent conflict with entity’s
interest
Identity of Constituent Discussions between Interview is Content of No legal
client may wish to constituent & lawyer being conducted interview advice, oth
(lawyer’s not obtain own are protected by entity’s to gather facts should be er than
disinterested; lawyer attorney-client in order to kept advice to
lawyer doesn’t privilege, subject to provide legal confidential secure
represent waiver at entity’s sole advice to entity counsel
constituent) discretion
19. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or To ensure that If know or should If know or reasonably Governing
reasonably should communications know that should know that Lawyers § 14
know that the between constituent & unrepresented unrepresented
To prevent
organization’s attorney are protected person person’s interests
creation of an
interests are by the attorney-client misunderstands have a reasonable
implied attorney-
adverse to those of privilege the lawyer’s role possibility of being in
client relationship
constituent conflict with entity’s
interest
Identity of Constituent Discussions between Interview is Content of No legal
client may wish to constituent & lawyer being conducted interview advice, oth
(lawyer’s not obtain own are protected by entity’s to gather facts should be er than
disinterested; lawyer attorney-client in order to kept advice to
lawyer doesn’t privilege, subject to provide legal confidential secure
represent waiver at entity’s sole advice to entity counsel
constituent) discretion
20. Rule 1.13 (a), (f) Representing
Warnings to Constituent When
& (g) ONLY the
Entity As Client Interacting With Constituent
Entity
Rule 1.13(f) Upjohn Warning Rule 4.3 Rule 4.3 Rest. (3d) Law
If know or To ensure that If know or should If know or reasonably Governing
reasonably should communications know that should know that Lawyers § 14
know that the between constituent & unrepresented unrepresented
To prevent
organization’s attorney are protected person person’s interests
creation of an
interests are by the attorney-client misunderstands have a reasonable
implied attorney-
adverse to those of privilege the lawyer’s role possibility of being in
client relationship
constituent conflict with entity’s
interest
Identity of Constituent Discussions between Interview is Content of No legal
client may wish to constituent & lawyer being conducted interview advice, oth
(lawyer’s not obtain own are protected by entity’s to gather facts should be er than
disinterested; lawyer attorney-client in order to kept advice to
lawyer doesn’t privilege, subject to provide legal confidential secure
represent waiver at entity’s sole advice to entity counsel
constituent) discretion
21. Rule 1.13 (b)-(e)
Rule 1.13 (a), (f) & (g)
Reporting Up the
Entity As Client
Chain
Representing Representing
ONLY the the Entity
Entity AND a
Constituent
22. Rule 1.13 (a), (f)
Representing
the Entity CONFLICT Analysis
& (g)
Entity As Client AND a
Constituent
23. Rule 1.13 (a), (f)
Representing
the Entity CONFLICTS Analysis
& (g)
Entity As Client AND a
Constituent
R. 1.7 - Is there a current
conflict?
- Two are directly adverse
- Significant risk that
representation of one will
be materially limited by
responsibilities to other
24. Rule 1.13 (a), (f)
Representing
the Entity CONFLICT Analysis
& (g)
Entity As Client AND a
Constituent
R. 1.7 - Is there a current
conflict?
- Two are directly adverse
- Significant risk that
representation of one will
be materially limited by
responsibilities to other
If lawyer reasonably believes
can nonetheless represent
both competently &
diligently, OK if each client
gives informed
consent, confirmed in writing.
25. Rule 1.13 (a), (f)
Representing
the Entity CONFLICT Analysis
& (g)
Entity As Client AND a
Constituent
R. 1.7 - Is there a potential
future conflict?
R. 1.7 - Is there a current
conflict?
- Two are directly adverse
- Significant risk that
representation of one will
be materially limited by
responsibilities to other
If lawyer reasonably believes
can nonetheless represent
both competently &
diligently, OK if each client
gives informed
consent, confirmed in writing.
26. Rule 1.13 (a), (f)
Representing
the Entity CONFLICT Analysis
& (g)
Entity As Client AND a
Constituent
R. 1.7 - Is there a potential
future conflict?
R. 1.7 - Is there a current
conflict?
- Two are directly adverse Yes, there is.
- Significant risk that
representation of one will
be materially limited by
responsibilities to other
If lawyer reasonably believes
can nonetheless represent
both competently &
diligently, OK if each client
gives informed
consent, confirmed in writing.
27. Rule 1.13 (a), (f)
Representing
the Entity CONFLICT Analysis
& (g)
Entity As Client AND a
Constituent
R. 1.7 - Is there a potential
future conflict?
R. 1.7 - Is there a current
conflict?
- Two are directly adverse Yes, there is.
- Significant risk that
representation of one will
be materially limited by R. 1.7 cmt. 22 –
responsibilities to other Prospective waiver
of conflict may be
effective
If lawyer reasonably believes - Depends on the
can nonetheless represent extent to which the
both competently & client reasonably
diligently, OK if each client understands the
gives informed material risks that
consent, confirmed in writing. the waiver entails
28. Rule 1.13 (a), (f)
Representing
the Entity CONFLICT Analysis
& (g)
Entity As Client AND a
Constituent
R. 1.7 - Is there a potential
future conflict?
R. 1.7 - Is there a current
conflict?
- Two are directly adverse Yes, there is.
- Significant risk that
representation of one will
be materially limited by R. 1.7 cmt. 22 – R. 1.7 cmt. 29; R. 1.9 – If
responsibilities to other Prospective waiver common representation
of conflict may be fails, ordinarily must withdraw
effective from representation of
If lawyer reasonably believes - Depends on the all, absent informed consent of
can nonetheless represent extent to which the both
both competently & client reasonably
diligently, OK if each client understands the
gives informed material risks that
consent, confirmed in writing. the waiver entails
29. Rule 1.13 (a), (f)
Representing
the Entity CONFLICT Analysis
& (g)
Entity As Client AND a
Constituent
R. 1.7 - Is there a potential
future conflict?
R. 1.7 - Is there a current
conflict?
- Two are directly adverse Yes, there is.
- Significant risk that
representation of one will
be materially limited by R. 1.7 cmt. 22 – R. 1.7 cmt. 29; R. 1.9 – If
responsibilities to other Prospective waiver common representation
of conflict may be fails, ordinarily must withdraw
effective from representation of
If lawyer reasonably believes - Depends on the all, absent informed consent of
can nonetheless represent extent to which the both
both competently & client reasonably
diligently, OK if each client understands the BUT, constituent might be
gives informed material risks that able to give this consent
consent, confirmed in writing. the waiver entails prospectively
30. Rule 1.13 (a), (f) & (g)
Entity As Client
Representing Representing
ONLY the the Entity
Entity AND a
Constituent
Application in Context of Entity Formation
Some authority that can represent ONLY yet-to-be-formed entity, if
• Clarify at initial meeting that representing entity only
• Specify in engagement agreement that:
-represent entity only, not constituents
- organizers agree to ratify on behalf of entity upon formation
- information communicated by constituents will be communicated
with entity’s other decision-makers
• Abide by Rule 4.3 re: dealing with unrepresented constituents
State Bar of Ariz. Ethics Op. 02-06; see also Jesse v. Danforth, 869 P.2d 1203 (Wis. 1992).
31. Rule 1.13 (b)-(e)
Rule 1.13 (a), (f) & (g)
Reporting Up the
Entity As Client
Chain
Initial Reporting Duty
Duty to Continue Reporting
Representing Up the Chain
Representing
ONLY the the Entity
Entity AND a Option to Report Out
Constituent
32. Rule 1.13 (b)-(e)
Rule 1.13 (a), (f) & (g)
Reporting Up the
Entity As Client
Chain
Initial Reporting Duty
Duty to Continue Reporting
Representing Up the Chain
Representing
ONLY the the Entity
Entity AND a Option to Report Out
Constituent
34. Initial Reporting Duty
Rule 1.13
IF lawyer for organization knows that:
constituent is engaged in action, intends to act, or refuses to
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a
violation of law that reasonably might be imputed to the
organization
that is likely to result in substantial injury to the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
35. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a
violation of law that reasonably might be imputed to the
organization
that is likely to result in substantial injury to the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
36. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the that isn’t necessary in the best
organization interest of the organization to do
that is likely to result in substantial injury to the organization so, lawyer shall refer the matter to
higher authority in the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
37. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the that isn’t necessary in the best
organization interest of the organization to do
that is likely to result in substantial injury to the organization so, lawyer shall refer the matter to
higher authority in the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
IF an attorney,
appearing and practicing before the SEC,
becomes aware of evidence of:
a material violation
by the issuer or by any officer, director, employee, or
agent of the issuer
38. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the that isn’t necessary in the best
organization interest of the organization to do
that is likely to result in substantial injury to the organization so, lawyer shall refer the matter to
higher authority in the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
IF an attorney, THEN shall report such
appearing and practicing before the SEC, evidence to:
becomes aware of evidence of: - the issuer’s chief legal
a material violation officer, OR
by the issuer or by any officer, director, employee, or - the issuer’s chief legal
agent of the issuer officer and the
CEO, OR
- the issuer’s “qualified
legal compliance
committee,” if formed
39. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the that isn’t necessary in the best
organization interest of the organization to do
that is likely to result in substantial injury to the organization so, lawyer shall refer the matter to
higher authority in the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
IF an attorney, THEN shall report such
appearing and practicing before the SEC, evidence to:
becomes aware of evidence of: - the issuer’s chief legal
a material violation officer, OR
by the issuer or by any officer, director, employee, or - the issuer’s chief legal
agent of the issuer officer and the
CEO, OR
- the issuer’s “qualified
legal compliance
Similarities – up-the-chain; shall committee,” if formed
40. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the that isn’t necessary in the best
organization interest of the organization to do
that is likely to result in substantial injury to the organization so, lawyer shall refer the matter to
includes providing advice higher authority in the organization
SEC Rule on securities laws re: any
17 C.F.R. § document to be
205.1 et seq. submitted to SEC
IF an attorney, THEN shall report such
appearing and practicing before the SEC, evidence to:
becomes aware of evidence of: - the issuer’s chief legal
a material violation officer, OR
by the issuer OR by any officer, director, employee, or - the issuer’s chief legal
agent of the issuer officer and the
CEO, OR
- the issuer’s “qualified
legal compliance
committee,” if formed
41. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the that isn’t necessary in the best
organization interest of the organization to do
that is likely to result in substantial injury to the organization so, lawyer shall refer the matter to
higher authority in the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
IF an attorney, THEN shall report such
appearing and practicing before the SEC, evidence to:
becomes aware of evidence of: - the issuer’s chief legal
a material violation officer, OR
by the issuer OR by any officer, director, employee, or - the issuer’s chief legal
agent of the issuer officer and the
CEO, OR
means a reporting issuer - the issuer’s “qualified
legal compliance
committee,” if formed
42. Initial Reporting Duty of
denotes actual knowledge
THEN shall proceed as is
Rule 1.13 the fact in question, which may
be inferred from circumstances reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the that isn’t necessary in the best
organization interest of the organization to do
that is likely to result in substantial injury to the organization so, lawyer shall refer the matter to
higher authority in the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
IF an attorney, THEN shall report such
appearing and practicing before the SEC, evidence to:
becomes aware of evidence of: - the issuer’s chief legal
a material violation officer, OR
by the issuer OR by any officer, director, employee, or - the issuer’s chief legal
agent of the issuer officer and the CEO,
means credible evidence, based upon which it OR
would be unreasonable, under the - the issuer’s “qualified
circumstances, for a prudent & competent legal compliance
attorney not to conclude that a violation has committee,” if formed
occurred, is ongoing, or is about to occur
43. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the that isn’t necessary in the best
organization interest of the organization to do
that is likely to result in substantial injury to the organization so, lawyer shall refer the matter to
higher authority in the organization
SEC Rule
17 C.F.R. §
205.1 et seq.
IF an attorney, THEN shall report such
appearing and practicing before the SEC, evidence to:
becomes aware of evidence of: - the issuer’s chief legal
a material violation officer, OR
by the issuer OR by any officer, director, employee, or - the issuer’s chief legal
agent of the issuer officer and the
CEO, OR
means a material violation of a federal or state
securities law, a material breach of fiduciary duty
- the issuer’s “qualified
arising under federal or state law, or a similar legal compliance
material violation of any federal or state law committee,” if formed
44. Initial Reporting Duty THEN shall proceed as is
Rule 1.13
reasonably necessary in
IF lawyer for organization knows that: the best interest of the
constituent is engaged in action, intends to act, or refuses to organization
act
in a matter related to representation
that is a violation of legal obligation to the organization OR a UNLESS lawyer reasonably believes
violation of law that reasonably might be imputed to the
allows lawyer more flexibility that isn’t necessary in the best
organization under some interest of the organization to do so,
that is likely to result in substantial injury to the organization
circumstances, such as a lawyer shall refer the matter to
constituent’s innocent higher authority in the organization
SEC Rule misunderstanding of the
17 C.F.R. § law, which the lawyer can
205.1 et seq. correct by advising constituent
IF an attorney, THEN shall report such
appearing and practicing before the SEC, evidence to:
becomes aware of evidence of: - the issuer’s chief legal
a material violation officer, OR
by the issuer OR by any officer, director, employee, or - the issuer’s chief legal
agent of the issuer officer and the
CEO, OR
- the issuer’s “qualified
legal compliance
committee,” if formed
46. Rule 1.13 (b)-(e)
Rule 1.13 (a), (f) & (g)
Reporting Up the
Entity As Client
Chain
Initial Reporting Duty
Duty to Continue Reporting
Representing Up the Chain
Representing
ONLY the the Entity
Entity AND a Option to Report Out
Constituent
47. Duty to Continue Reporting Up the Chain
Rule 1.13
SEC Rule
17 C.F.R. §
205.1 et seq.
48. Duty to Continue Reporting Up the Chain
Rule 1.13
Unless the lawyer reasonably believes that it is not necessary
in the best interest of the organization to do so, the lawyer
shall refer the matter to higher authority in the
organization, including, if warranted by the circumstances, to
the highest authority that can act on behalf of the
organization as determined by applicable law.
SEC Rule
17 C.F.R. §
205.1 et seq.
49. Duty to Continue Reporting Up the Chain
Rule 1.13
Unless the lawyer reasonably believes that it is not necessary
in the best interest of the organization to do so, the lawyer “ordinarily will be the board of
shall refer the matter to higher authority in the directors or similar governing body”
organization, including, if warranted by the circumstances, to
the highest authority that can act on behalf of the
organization as determined by applicable law.
SEC Rule
17 C.F.R. §
205.1 et seq.
50. Duty to Continue Reporting Up the Chain
Rule 1.13
Unless the lawyer reasonably believes that it is not necessary
in the best interest of the organization to do so, the lawyer “ordinarily will be the board of
shall refer the matter to higher authority in the directors or similar governing body”
organization, including, if warranted by the circumstances, to
the highest authority that can act on behalf of the
organization as determined by applicable law.
SEC Rule
17 C.F.R. §
205.1 et seq.
Unless an attorney who has made a report
reasonably believes that the chief legal officer
or the CEO of the issuer has provided an
appropriate response within a reasonable
time, the attorney shall report the evidence of
a material violation to:
51. Duty to Continue Reporting Up the Chain
Rule 1.13
Unless the lawyer reasonably believes that it is not necessary
in the best interest of the organization to do so, the lawyer “ordinarily will be the board of
shall refer the matter to higher authority in the directors or similar governing body”
organization, including, if warranted by the circumstances, to
the highest authority that can act on behalf of the
organization as determined by applicable law.
SEC Rule
17 C.F.R. §
205.1 et seq.
Unless an attorney who has made a report • audit committee of board of
reasonably believes that the chief legal officer directors; OR
or the CEO of the issuer has provided an • another committee consisting
appropriate response within a reasonable solely of independent directors;
time, the attorney shall report the evidence of OR
a material violation to: • board of directors (if no
committee consisting solely of
independent directors)
52. Duty to Continue Reporting Up the Chain
Rule 1.13
Unless the lawyer reasonably believes that it is not necessary
in the best interest of the organization to do so, the lawyer “ordinarily will be the board of
shall refer the matter to higher authority in the directors or similar governing body”
organization, including, if warranted by the circumstances, to
the highest authority that can act on behalf of the
organization as determined by applicable law.
SEC Rule
17 C.F.R. §
205.1 et seq.
Unless an attorney who has made a report • audit committee of board of
reasonably believes that the chief legal officer directors; OR
or the CEO of the issuer has provided an • another committee consisting
appropriate response within a reasonable solely of independent directors;
time, the attorney shall report the evidence of OR
a material violation to: • board of directors (if no
committee consisting solely of
means that the attorney reasonably believes:
independent directors)
• no material violation occurred, is ongoing, or is about to occur; OR
• the issuer has adopted appropriate remedial measures; OR
• the issuer has retained counsel to review the reported evidence
AND (i) substantially implemented counsel’s remedial
recommendations, or (ii) been advised that counsel may assert
colorable defense
53. Duty to Continue Reporting Up the Chain
SEC Rule
17 C.F.R.
Rule 1.13 § 205.1
et seq.
54. Rule 1.13 (b)-(e)
Rule 1.13 (a), (f) & (g)
Reporting Up the
Entity As Client
Chain
Initial Reporting Duty
Duty to Continue Reporting
Representing Up the Chain
Representing
ONLY the the Entity
Entity AND a Option to Report Out
Constituent
55. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
(2)(i) (2)(iii)
56. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent (2)(i) (2)(iii)
substantial injury
to the
organization
after lawyer
reported
constituent’s
action or
intention to act;
highest authority
that can act on
behalf of
organization
failed to address
in timely &
appropriate
manner;
action or
inaction is a
clear violation of
law
57. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent to to prevent (2)(i) (2)(iii)
client from prevent, mitigat substantial injury
committing a e or rectify to the
crime or fraud substantial organization
injury to the
that is financial after lawyer
reasonably interests or reported
certain to result property of constituent’s
in substantial another action or
injury to the intention to act;
financial that is
interests or reasonably highest authority
property of certain to result that can act on
another or has resulted behalf of
from the client's organization
in furtherance commission of a failed to address
of which the crime or fraud in timely &
client has used appropriate
or is using the in furtherance of manner;
lawyer's which the client
services has used the action or
lawyer's services inaction is a
clear violation of
law
58. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent to to prevent (2)(i) (2)(iii)
client from prevent, mitigat substantial injury
to prevent issuer to rectify the
committing a e or rectify to the
from committing consequences of a
crime or fraud substantial organization
a material material violation
injury to the
violation by the issuer
that is financial after lawyer
reasonably interests or reported
that is likely to that has caused, or
certain to result property of constituent’s
cause may
in substantial another action or
substantial cause, substantial
injury to the intention to act;
injury to the injury to the
financial that is
financial interest financial interest
interests or reasonably highest authority or property of the
property of certain to result or property of
that can act on issuer or investors
another or has resulted the issuer or
behalf of
from the client's investors
organization in furtherance of
in furtherance commission of a failed to address
of which the crime or fraud may reveal to which the
in timely & attorney’s services
client has used SEC only
appropriate were used
or is using the in furtherance of manner;
lawyer's which the client
may reveal to SEC
services has used the action or only
lawyer's services inaction is a
clear violation of
law
59. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent to to prevent (2)(i) (2)(iii)
client from prevent, mitigat substantial injury
to prevent issuer to rectify the
committing a e or rectify to the
from committing consequences of a
crime or fraud substantial organization
a material material violation
injury to the
violation by the issuer
that is financial after lawyer
reasonably interests or reported
that is likely to that has caused, or
certain to result property of constituent’s
cause may
in substantial another action or
substantial cause, substantial
injury to the intention to act;
injury to the injury to the
financial that is
financial interest financial interest
interests or reasonably highest authority or property of the
property of certain to result or property of
that can act on issuer or investors
another or has resulted the issuer or
behalf of
from the client's investors
organization fails in furtherance of
in furtherance commission of a to address in
of which the crime or fraud may reveal to which the
timely & attorney’s services
client has used SEC only
appropriate were used
or is using the in furtherance of manner;
lawyer's which the client
may reveal to SEC
services has used the action or only
lawyer's services inaction is a
clear violation of
law
60. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent to to prevent (2)(i) (2)(iii)
client from prevent, mitigat substantial injury
to prevent issuer to rectify the
committing a e or rectify to the
from committing consequences of a
crime or fraud substantial organization
a material material violation
injury to the
violation by the issuer
that is financial after lawyer
reasonably interests or reported
that is likely to that has caused, or
certain to result property of constituent’s
cause may
in substantial another action or
substantial cause, substantial
injury to the intention to act;
injury to the injury to the
financial that is
financial interest financial interest
interests or reasonably highest authority or property of the
property of certain to result or property of
that can act on issuer or investors
another or has resulted the issuer or
behalf of
from the client's investors
organization fails in furtherance of
in furtherance commission of a to address in
of which the crime or fraud may reveal to which the
timely & attorney’s services
client has used SEC only
appropriate were used
or is using the in furtherance of manner;
lawyer's which the client
may reveal to SEC
services has used the action or only
lawyer's services inaction is a
clear violation of
law
61. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent to to prevent (2)(i) (2)(iii)
client from prevent, mitigat substantial injury
to prevent issuer to rectify the
committing a e or rectify to the
from committing consequences of a
crime or fraud substantial organization
a material material violation
injury to the
violation by the issuer
that is financial after lawyer
reasonably interests or reported
that is likely to that has caused, or
certain to result property of constituent’s
cause may
in substantial another action or
substantial cause, substantial
injury to the intention to act;
injury to the injury to the
financial that is
financial interest financial interest
interests or reasonably highest authority or property of the
property of certain to result or property of
that can act on issuer or investors
another or has resulted the issuer or
behalf of
from the client's investors
organization fails in furtherance of
in furtherance commission of a to address in
of which the crime or fraud may reveal to which the
timely & attorney’s services
client has used SEC only
appropriate were used
or is using the in furtherance of manner;
lawyer's which the client
may reveal to SEC
services has used the action or only
lawyer's services inaction is a
clear violation of
law
62. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent to to prevent (2)(i) (2)(iii)
client from prevent, mitigat substantial injury
to prevent issuer to rectify the
committing a e or rectify to the
from committing consequences of a
crime or fraud substantial organization
a material material violation
injury to the
violation by the issuer
that is financial after lawyer
reasonably interests or reported
that is likely to that has caused, or
certain to result property of constituent’s
cause may
in substantial another action or
substantial cause, substantial
injury to the intention to act;
injury to the injury to the
financial that is
financial interest financial interest
interests or reasonably highest authority or property of the
property of certain to result or property of
that can act on issuer or investors
another or has resulted the issuer or
behalf of
from the client's investors
organization fails in furtherance of
in furtherance commission of a to address in
of which the crime or fraud may reveal to which the
timely & attorney’s services
client has used SEC only
appropriate were used
or is using the in furtherance of manner;
lawyer's which the client
may reveal to SEC
services has used the action or only
lawyer's services inaction is a
clear violation of
law
63. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent to to prevent (2)(i) (2)(iii)
client from prevent, mitigat substantial injury
to prevent issuer to rectify the
committing a e or rectify to the
from committing consequences of a
crime or fraud substantial organization
a material material violation
injury to the
violation by the issuer
that is financial after lawyer
reasonably interests or reported
that is likely to that has caused, or
certain to result property of constituent’s
cause may
in substantial another action or
substantial cause, substantial
injury to the intention to act;
injury to the injury to the
financial that is
financial interest financial interest
interests or reasonably highest authority or property of the
property of certain to result or property of
that can act on issuer or investors
another or has resulted the issuer or
behalf of
from the client's investors
organization fails in furtherance of
in furtherance commission of a to address in
of which the crime or fraud may reveal to which the
timely & attorney’s services
client has used SEC only
appropriate were used
or is using the in furtherance of manner;
lawyer's which the client
may reveal to SEC
services has used the action or only
lawyer's services inaction is a
clear violation of
law
64. Option to Report Out
Lawyer may reveal information to extent lawyer reasonably believes necessary:
Rule Rule Rule 17 C.F.R. § 17 C.F.R. §
1.6(b)(2) 1.6(b)(3) 1.13(c) 205.3(d) 205.3(d)
to prevent to to prevent (2)(i) (2)(iii)
client from prevent, mitigat substantial injury
to prevent issuer to rectify the
committing a e or rectify to the
from committing consequences of a
crime or fraud substantial organization
a material material violation
injury to the
violation by the issuer
that is financial after lawyer
reasonably interests or reported
that is likely to that has caused, or
certain to result property of constituent’s
cause may
in substantial another action or
substantial cause, substantial
injury to the intention to act;
injury to the injury to the
financial that is
financial interest financial interest
interests or reasonably highest authority or property of the
property of certain to result or property of
that can act on issuer or investors
another or has resulted the issuer or
behalf of
from the client's investors
organization fails in furtherance of
in furtherance commission of a to address in
of which the crime or fraud may reveal to which the
timely & attorney’s services
client has used SEC only
appropriate were used
or is using the in furtherance of manner;
lawyer's which the client
may reveal to SEC
services has used the action or only
lawyer's services inaction is a
clear violation of
law
66. Rule 1.13 (b)-(e)
Rule 1.13 (a), (f) & (g)
Reporting Up the
Entity As Client
Chain
Initial Reporting Duty
Duty to Continue Reporting
Representing Up the Chain
Representing
ONLY the the Entity
Entity AND a Option to Report Out
Constituent
