I represent a condominium association through its board of directors, and I want to withdraw because the board keeps rejecting my advice. Can I tell the individual unit owners why I'm withdrawing, since it might benefit the association?

Plain-English summary

The inquiring attorney represented an unincorporated condominium association, managed by a duly elected board of directors with authority to hire counsel and file suit for the association. At the association's request, the attorney filed a complaint against a unit owner, with the association and its president as plaintiffs. The attorney later sought to withdraw from that litigation and from representing the association, citing a breach of the written representation agreement and the board's repeated failure to accept the attorney's legal advice. The attorney believed disclosing the withdrawal reasons to the individual unit owners would benefit the association, noting that while communication generally ran through the board, unit owners occasionally called about association matters.

The panel applied Rule 1.13 (Organization as Client), quoting subsection (a), which provides that a lawyer retained by an organization represents the organization acting through its duly authorized constituents, not the individual constituents themselves. It quoted the rule's commentary explaining that when a constituent communicates with the organization's lawyer in an organizational capacity, that communication is protected by Rule 1.6, and that constituents of an organizational client are not themselves the lawyer's clients, so the lawyer may not disclose representation-related information to them except as the organization authorizes or Rule 1.6 otherwise permits. The commentary further clarified that Rule 1.13(b)'s authority to address organizational misconduct does not limit or expand the lawyer's Rule 1.6 responsibilities.

Applying that framework, the panel concluded the attorney represented the condominium association through its board, not the individual unit owners, and that the reasons for withdrawal constitute information relating to the representation, protected by Rule 1.6. Disclosing those reasons to the unit owners would therefore violate Rule 1.6.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer for an organizational client such as a condominium association represents the organization through its board, not the individual members or unit owners, and that Rule 1.6 confidentiality extends to the lawyer's reasons for withdrawing from the representation. The opinion treats a lawyer's belief that disclosure would benefit the organization as immaterial to whether Rule 1.6 permits the disclosure absent the organization's authorization.

Common questions

Q: I represent an organization through its board. Can I talk directly to individual members or unit owners about problems with the board?

A: Not about information relating to the representation, absent the organization's authorization. The panel held the individual constituents are not the lawyer's clients, even when they occasionally contact the lawyer about organizational matters.

Q: Does it matter that I think disclosure would actually help the organization?

A: Not under this opinion. The panel's conclusion did not turn on whether disclosure might benefit the association; it turned on whether the information was protected by Rule 1.6, which it was.

Q: If I'm withdrawing from representing an organization because the board won't take my advice, can I explain that to the people ultimately affected, like unit owners?

A: No, per this opinion. The panel held the reasons for withdrawal are information relating to the representation of the organizational client and remain protected by Rule 1.6 even from constituents who might be affected.

Background and rules framework

The opinion applies Rule 1.13 (Organization as Client), the Model Rule counterpart of the same number, quoting subsections (a) through (d) in full, including the identification-of-client requirement in subsection (d) and the resignation provision in subsection (c). It also applies Rule 1.6 (Confidentiality of Information), relying on Rule 1.13's commentary to explain how Rule 1.6 confidentiality operates when the client is an organization communicating through its constituents.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (Confidentiality of Information) / RI Rule 1.6
• MR 1.13(a)-(d) (Organization as Client) / RI Rule 1.13(a)-(d), including commentary on confidentiality and organizational constituents

See also

• ABA Formal Op. 91-361: Representation of a Partnership
• RI EAP Op. 2002-02: Municipal Attorney's Client Is the Council, Not Individual Members: Billing-Record Confidentiality

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202003-04.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                  Rhode Island Supreme Court Ethics Advisory Panel
                        Opinion No. 2003-04 Request No. 865
                         Issued September 11, 2003

Facts:

     The inquiring attorney is the attorney for an unincorporated condominium association

which is managed by a duly elected board of directors. The board of directors has the authority
to hire legal counsel as well as to file suit on behalf of the association. The board of directors
retained the inquiring attorney to represent the association.

    At the request of the association, the inquiring attorney filed a complaint

against a unit owner. Plaintiffs in the pending lawsuit are the association and its
president.

    The inquiring attorney seeks to withdraw from the litigation and from the representation

of the association, citing breach of the written representation agreement and consistent failure of
the board of directors to accept his/her legal advice. The inquiring attorney believes that it
would benefit the association to disclose his/her reasons for withdrawing to the individual unit
owners. The inquiring attorney states that while he/she generally communicates directly with the
board of directors, on occasion, unit owners have called him/her on matters relating to the
association.

Issue Presented:

    The inquiring attorney asks whether communicating the reasons for his/her withdrawal

directly to the unit owners would be a violation of Rule 1.6.

Opinion:

   It is a violation of Rule 1.6 for the inquiring attorney to disclose to the individual unit

owners his/her reasons for withdrawing from the representation of the association, as those
reasons constitute “information relating to the representation” of his/her client, the condominium
association, and as such are protected by Rule 1.6.

Reasoning:

     Rule 1.13 entitled “Organization as Client” provides in pertinent part as follows:

            (a) A lawyer employed or retained by an organization represents
            the organization acting through its duty authorized constituents.

2003-04
Page 2

      (b) If a lawyer for an organization knows that an officer, employee or
      other person associated with the organization is engaged in action,
      intends to act or refuses to act in a matter related to the representation
      that is a violation of a legal obligation to the organization, or a
      violation of law which reasonably might be imputed to the
      organization, and is likely to result in substantial injury to the
      organization, the lawyer shall proceed as is reasonably necessary in the
      best interest of the organization. In determining how to proceed, the
      lawyer shall give due consideration to the seriousness of the violation
      and its consequences, the scope and nature of the lawyer's
      representation, the responsibility in the organization and the apparent
      motivation of the person involved, the policies of the organization
      concerning such matters and any other relevant considerations. Any
      measures taken shall be designed to minimize disruption of the
      organization and the risk of revealing information relating to the
      representation to persons outside the organization. Such measures may
      include among others:

            (1) asking reconsideration of the matter;

            (2) advising that a separate legal opinion on the
            matter be sought for presentation to appropriate
            authority in the organization; and

            (3) referring the matter to higher authority in the
            organization, including, if warranted by the
            seriousness of the matter, referral to the highest
            authority that can act in behalf of the organization as
            determined by applicable law.


      (c) If, despite the lawyer's efforts in accordance with paragraph
      (b), the highest authority that can act on behalf of the organization
      insists upon action, or a refusal to act, that is clearly a violation of
      law and is likely to result in substantial injury to the organization,
      the lawyer may resign in accordance with Rule 1.16.

      (d) In dealing with an organization's directors, officers,
      employees, members, shareholders or other constituents, a lawyer
      shall explain the identity of the client when it is apparent that the
      organization's interests are adverse to those of the constituents with
      whom the lawyer is dealing.

2003-04
Page3

                                            ***

   Pursuant to paragraph (a), the inquiring attorney represents the legal entity, viz, the

condominium association, acting through its duly authorized board of directors. He/she does not
represent the individual unit owners. The Commentary to Rule 1.13 discusses a lawyer’s duty of
confidentiality in the context of the organizational client. It states:

                    When one of the constituents of an organizational client
           communicates with the organization’s lawyer in that person’s
           organizational capacity, the communication is protected by Rule 1.6.
           Thus, by way of example, if an organizational client requests its lawyer
           to investigate allegations of wrongdoing, interviews made in the course
           of that investigation between the lawyer and the client’s employees or
           other constituents are covered by Rule 1.6. This does not mean,
           however, that constituents of an organizational client are the clients of
           the lawyer. The lawyer may not disclose to such constituents
           information relating to the representation except for disclosures
           explicitly or impliedly authorized by the organizational client in order to
           carry out the representation or as otherwise permitted by Rule 1.6.

    The Commentary further cautions that “[t]he authority and responsibility provided in

paragraph (b) are concurrent with the authority and responsibility provided in the Rules. In
particular, this Rule does not limit or expand the lawyer’s responsibility under Rule 1.6. . . .”

     The Panel concludes that it is a violation of Rule 1.6 for the inquiring attorney to disclose

to the individual unit owners his/her reasons for withdrawing from the representation of the
association, as those reasons constitute “information relating to the representation” of his/her
client, the condominium association, and as such are protected by Rule 1.6.