Term
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Definition
| Corporations, any entity formed for business, a foundation, a non-profit, includes both for-profit and non-profit entities |
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Term
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Definition
| A constituent of the organization: officers, directors, employees, CEOs, board of directors, not really shareholders because they are the ones policing |
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Term
Whistleblower Provision
Three-Step Process
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Definition
1. Assess the gravity of the harm
2. Consider reporting “up”
3. Consider reporting “out” – permissive not mandatory!
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Term
| Step 1: Assessing the Gravity of the Harm |
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Definition
a. Lawyer has knowledge
b. That constituent
c. is involved in actions or omissions
d. related to representation
e. and that constitute violation of a legal obligations to org., or violations of law that could be imputed to org.
f. such that actions or omissions are likely to result in substantial injury to org. |
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Term
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Consider reporting “up” Elements |
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Definition
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Term
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Definition
Permissive, not mandatory:
a. If lawyer cannot persuade constituent to fix problem
b. action or omission is clearly violation of law (heightened from before – full violation of law)
c. Action or omission is reasonably certain to cause substantial injury to org.
d. Disclosure must be necessary to prevent substantial injury |
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Term
| Discharge or Withdrawal from Organizational Representation |
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Definition
1. If lawyer believes discharged from representation due to whistleblowing, lawyer shall notify org.’s highest authority.
2. If lawyer has withdrawn due to circumstances that require lawyer to take action under Rule 1.13, lawyer shall notify org.’s highest authority. |
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Term
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Definition
When client’s capacity to make adequately considered decisions in connection with representation is diminished. Reason for diminished capacity could be: mental impairment, minority, or other reason |
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Term
| Appointed Legal Representatives: |
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Definition
| If one has been appointed, lawyer should look to rep for decisions on behalf of client. If not, consider whether appointment is in client’s best interest. |
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Term
| When should lawyer take protective action? |
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Definition
Only if:
1. Client has diminished capacity;
2. Client is at risk of substantial physical, financial, or other harm unless action is taken, and
3. Client cannot adequately act in client’s own interest. |
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Term
| Actions Lawyers Should Take when client has diminished capacity |
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Definition
| Lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have ability to take action to protect client and, in appropriate cases, seeking appointment of a guardian at litem, conservator, or guardian. |
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Term
| Factors to Consider when deciding what action to take: |
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Definition
1. Wishes and values of client (to extent known)
2. Client’s best interests (determined objectively)
3. Goal of intruding into client’s decision-making autonomy to least extent feasible
4. Goal of maximizing client’s capacities
5. Respecting client’s family and social connections |
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Term
| Confidentiality Rule in Diminished Capacity Context |
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Definition
| Implied Authorization: Lawyer impliedly authorized to reveal confidential information concerning representation—but only to extent reasonably necessary to protect client’s interests. |
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