Aba Model Rule 1.13
Paragraph (f) recognizes that the organizational components are sometimes, perhaps often, confused with respect to the role of counsel in a case. For example, a lawyer representing a company in a criminal or administrative environmental case may very well have a conflict of interest if he or she also represents workers who may have been involved in a potentially illegal dumping of toxic waste. In such a case, the lawyer must carefully identify the client and ensure that there is no confusion as to the lawyer`s role in the case. See the. Rules of conduct of prof`l r. 1.13(f) (2004) (with regard to the functions of a lawyer vis-à-vis organizational elements); see also r. 4.3 (with regard to the duties of a lawyer towards unrepresented persons); see also Bakerding v. Whittaker, 263 Sun.3d 1170 (La. Ct. App. 4th Cir. 2018).
Shareholders (or other equity participants) of an organization typically initiate a derivative action when one or more members of management have breached their duty of care or loyalty to the organization through misconduct or incapacity. Such a lawsuit does not belong to the shareholder, but to the organization. See e.B. Noe v. Roussel, 310 So. 2d 806 (La. 1975). Many almost frivolous derivative actions are „a normal incident of an organization`s affairs that must be defended by the organization`s lawyer like any other lawsuit.“ ABA Model R. 1.13 cmt.
14. In such cases, conflicts are unlikely to arise if the organization`s lawyer defends a director accused of such misconduct. On the other hand, in cases where serious and non-frivolous allegations of internal misconduct are made, they are more likely to lead to conflicts of interest. The Louisiana Supreme Court adopted this rule on January 20, 2004. It entered into force on 1 March 2004 and has not been amended since. This rule is identical to the ABA model rule of Prof`l Conduct 1.13 (2003).  When determining the way forward referred to in point (b), the lawyer should take due account of the gravity of the offence and its consequences, the responsibility within the organisation and the obvious motivation of the person concerned, the organisation`s policy with regard to those matters and any other relevant considerations. Normally, a referral to a higher authority would be necessary. However, in certain circumstances, it may be appropriate for counsel to ask the elector to reconsider the matter; For example, if the circumstances involve an innocent misunderstanding of the law by an elector and the subsequent adoption of the Bar Council, counsel may reasonably conclude that the best interests of the corporation do not require that the matter be referred to a higher court.
If a voter insists on conduct contrary to the lawyer`s opinion, he or she must take steps to have the matter reviewed by a higher authority of the organization. If the matter is sufficiently serious and important or urgent for the organization, it may be necessary to refer the matter to a higher authority of the organization, even if the lawyer has not communicated with the voter. Any measures taken should, as far as possible, minimise the risk of disclosure of representational information to persons outside the organisation. Even in cases where a lawyer is not required by Rule 1.13 to proceed, a lawyer may alert a client of the organization, including his or her highest authority, to matters that he or she reasonably believes to be of sufficient importance to justify in the best interests of the organization. .  Decisions of members of the organization must generally be accepted by counsel, even if their usefulness or prudence is questionable. Decisions relating to policies and operations, including those involving serious risks, are not, as such, the responsibility of the lawyer. However, other considerations arise if the lawyer knows that the organization may suffer significant harm through the actions of a voter who violates the law. In such a case, it may reasonably be necessary for counsel to ask the elector to reconsider the matter. If this fails, or if the matter is sufficiently serious and important to the organization, it may reasonably be necessary for the lawyer to take steps to have the matter reviewed by a higher authority of the organization.
There should be an essential justification for requesting an overhead review of the component normally responsible for it. The policy set out in the organization may define the circumstances and prescribe avenues for such a review, and a lawyer should encourage the formulation of such a policy. However, even in the absence of an organizational policy, counsel may be required to refer a case to a higher court, depending on the seriousness of the case and whether the element in question has clear grounds for acting contrary to the interests of the organization. A review by the CEO or the Board of Directors may be required if the matter is relevant in accordance with their authority. At some point, it may be helpful or essential to get independent legal advice.  An organizational client is a legal entity, but may only act through its officers, directors, employees, shareholders and other components. .