Corporate Law’s Forgotten Constituents: Reimagining Corporate Lawyering in Routine Business Contexts

By Melissa E. Romanovich

Although they are artificial entities, corporations are operated, managed, and represented by people.  Sometimes, these people have personal interests at stake—interests that are separate and distinct from the corporation’s interests and that arise from these people acting in their corporate roles.  These personal interests and related potential liabilities range from employment concerns and civil liability to criminal prosecution and imprisonment.  Until now, however, the law has determined that, in most situations, a corporation’s lawyer neither represents the corporation’s constituents nor their personal interests.  The corporate lawyer, therefore, has the challenging role of discharging the proper ethical and legal obligations to the corporate client while ensuring that the corporation’s highest-level employees are not misled or left in dire legal straits themselves.

Professional responsibility concerns about corporate attorneys’ conduct in these contexts have gone largely undiscussed.  This Note evaluates how corporate attorneys have typically structured communications with corporations’ constituents—via the “entity theory” and, sometimes, joint representation—and suggests a new way to structure corporate counseling in routine business matters.  Accordingly, this Note proposes a new model rule—Rule 1.13(h)—for the American Bar Association to consider to allow corporate attorneys to inform officers and directors, for example, of the personal risks associated with their business conduct.  A new model rule will assist corporate attorneys in navigating the thorny ethical considerations of these uncharted waters without compromising the duties owed to the corporate client.