Ethical Duties When Representing an Organization

Arthur D. Burger | Jackson & Campbell, P.C

Mr. Burger is a national leader in legal ethics, legal malpractice, and the law governing lawyers. He has been representing prominent law firms and lawyers for over two decades. Selected repeatedly as a Best Lawyer® in Ethics and Professional Responsibility by Best Lawyers of America© and as a Super Lawyer® in Professional Liability Defense, Art litigates in the areas of legal malpractice, fiduciary duties, motions to disqualify, internal law firm disputes, and Bar disciplinary proceedings. He also serves as outside counsel to law firms and provides guidance regarding potential conflicts of interest and other ethical dilemmas.

In addition to his experience as a practitioner, Art has a deep background in the jurisprudence of ethics law. He was a member of the Editorial Board of the ABA/Bloomberg Law-Lawyers’ Manual on Professional Conduct and is an Adjunct Professor at the Antonin Scalia Law School of George Mason University, teaching a night class in Professional Responsibility. He was a member of the ten-person American Bar Association (ABA) Committee on Ethics and Professional Responsibility from 2014 to 2017; an elected District of Columbia Bar Delegate to the ABA House of Delegates from 2011 to 2012, where he worked with the ABA Ethics 20/20 Commission; a member of the District of Columbia Bar Legal Ethics Committee from 2003 to 2009; a member of the District of Columbia Bar Rules of Professional Conduct Review Committee from 1998 to 2004; and he has taught numerous District of Columbia Bar continuing legal education courses (CLE) on legal ethics and has lectured around the country.

Art also serves as an expert witness on legal ethics and the standard of care for lawyers. In Diamond Resorts vs. Newton Group Transfers, LLC, 2022 WL 1642865 (S.D. Fla. 2022), the court found him “more than qualified to give his expert opinion in matters of legal ethics.”

Ronald C. Minkoff | Frankfurt Kurnit Klein & Selz P.C

Ronald C. Minkoff is a partner in the Litigation Group and Chair of the Professional Responsibility Group. Mr. Minkoff is one of New York State’s leading practitioners in the field of attorney ethics and professional responsibility, representing attorneys in a wide variety of matters including law firm partnership agreements, attorney departures and lateral hires, attorney discipline cases, legal fee disputes and legal malpractice and professional liability cases on behalf of both plaintiffs and defendants. He also provides ethics opinions and advice to a wide variety of law firm clients. He often serves as an expert witness in legal malpractice lawsuits and attorneys’ fees disputes.

Mr. Minkoff is a member of several Bar Ethics Committees, including the Committee on Standards of Attorney Conduct (COSAC) and the Committee on Attorney Professionalism of the New York State Bar Association. He is also the Treasurer of the New York County Lawyers’ Association, Co-Chair of NYCLA’s Task Force on Professionalism, a member of the American Bar Association Standing Committee on the Delivery of Legal Services, and a past President of the Association of Professional Responsibility Lawyers.

He has written extensively for the New York Professional Responsibility Report, The Professional Lawyer, The New York Law Journal, and other publications. Mr. Minkoff is the former co-Managing Editor of the New York Legal Ethics Reporter and author of Lexology’s New York Professional Negligence Navigator. He has taught Professional Responsibility at Columbia University School of Law, New York University School of Law, Fordham Law School, Brooklyn Law School and Benjamin N. Cardozo School of Law. He is a frequent lecturer on the law of lawyering.

In addition, Mr. Minkoff represents businesses and individual professionals and executives in a wide variety of commercial litigation, including business break-ups, securities lawsuits, and domestic and international trade disputes. He has over 30 years of experience representing law firm partners and law firms in partnership formations, partnership disputes, lateral transitions and law-firm dissolutions. And he represents an internationally known petro-chemist in an oil and gas venture dispute.

Mr. Minkoff was a member of Chief Judge Lippman’s Task Force on Commercial Litigation in the 21st Century. He is on the Executive Committee of the New York State Bar Association. Mr. Minkoff was named Best Lawyers in America’s 2019 “Lawyer of the Year” in Legal Malpractice Law – Defendants and 2011 and 2024 “New York Ethics and Professional Responsibility Lawyer of the Year.” He is also recognized by Best Lawyers for his work in Commercial Litigation. He has been named a New York area “Super Lawyer” for Professional Liability: Defense Work and Business Litigation by Super Lawyers magazine for eighteen consecutive years.

I. The nature and application of Rule 1.13 | 1:00pm – 1:30pm

• What is an “organization”?
• How and why are it different from representing a group of individuals?
• Defining “constituents”
• Potential hazards

II. Who speaks for the client? | 1:30pm – 2:00pm

• The rights of clients to make decisions under Rule 1.2 and to be kept informed and consulted under Rule 1.4
• Determining which constituents have the legal authority to speak for the organization
• Dealing with “deadlock”

Break | 2:00pm – 2:10pm

III. Applying the duty of confidentiality and the attorney-client privilege to organization clients | 2:10pm – 2:40pm

• The “managing group” theory and Upjohn v. U.S.
• Communications go in two directions
• Assessing the varying roles of constituents under particular circumstances
• When the interests of an organization and a constituent may diverge and the duty of fair notice

IV. Going “up-the-ladder” | 2:40pm – 3:10pm

• The nature of “friendly” disclosures
• The criteria that trigger the duty
• Similarities and differences with the confidentiality exceptions in Rule 1.6(b) (2) and (b)(3)
• Practical aspects of carrying out the duty
• What happens when going “up the ladder” fails?
• The interaction between Rule 1.13 and Rule 1.6 (client confidentiality)