Return to Winter 2007 Acredula Index

Note to Lawyers

Reprinted from Acredula -- Winter 2007

Rule 1.13 of the new Ohio Rules of Professional Conduct, which replace Ohio’s Code of Professional Responsibility, imposes new duties for lawyers employed or retained by an organization effective February 1, 2007.

This rule repeats the substance of EC 5-19 of the Code that “[a] lawyer employed or retained by an organization owes allegiance to the organization and not to any constituent or other person connected with the organization.” Constituents mean owners and their duly authorized officers, directors, trustees, and employees.

What is new in the rule is mandatory “reporting up” or referral of a matter to a higher authority, including, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law if the lawyer “knows or reasonably should know that its constituent’s action, intended action, or refusal to act (1) violates a legal obligation to the organization, or (2) is a violation of law that reasonably might be imputed to the organization and that is likely to result in substantial injury to the organization.”

Importantly, Ohio did not adopt the “reporting out” obligation of ABA Model Rule 1.13. Instead, a lawyer for an organization is subject to the same reporting responsibilities under the Ohio Rules as a lawyer for other clients.