THE OKLAHOMA BAR JOURNAL 70 | APRIL 2025 Ethics & Professional Responsibility ABA Formal Opinion 514 By Richard Stevens THERE ARE TIMES WHEN a lawyer may be required to give legal advice to their organizational clients about conduct that may create legal risk for nonclient constituents of the organization. Both in-house and outside counsel advise organizations about contracts, regulatory requirements and many other issues up to and including potential criminal liability. When a lawyer does this, they communicate advice to individuals who are likely to implement and act on that advice. Except for extraordinary circumstances, such as when a constituent of the organization becomes a co-client, the organization remains the client. Recently released ABA Formal Opinion 514 provides ethical guidance to lawyers about such a situation. The opinion describes its application as follows: (1) a lawyer – in-house or outside counsel – is giving advice to an organization client through a constituent about future action the organization may choose to take; (2) the lawyer knows or reasonably should know that the constituents are likely to have their own legal interests at stake – for example, where the lawyer is advising the organization about possible future conduct for which the constituents may be subject to personal civil or criminal liability; and (3) the lawyer does not intend to create a client-lawyer relationship with the constituent or otherwise to assume fiduciary or contractual duties to the constituent. ADVICE TO THE ORGANIZATION ABA Formal Opinion 514 makes it clear that lawyers who work for an organization can only give advice to their clients by relaying that information to nonclients who are constituents of the client. This may create uncertainty about the lawyer’s role and application of legal advice. That uncertainty may not be present in representations of all organizations. In cases where the lawyer or firm is pursuing an investigation of misconduct allegations, the lawyer’s role is to gather information and later present it to one or more representatives of the organization. The opinion continues by stating: In the context of a formal internal investigation of alleged wrongdoing, the divergence of the organization’s interests and those of the individual constituents who are suspected of wrongdoing should ordinarily be clear. However, such divergence of interest in other contexts may often be less clear. In most cases, the interests of constituents in the organization itself may be aligned, but in many cases, they may not be identical. ABA Formal Opinion 514 acknowledges that the lawyer generally does not owe duties under the Rules of Professional Conduct to constituents of an organization unless the lawyer also represents those constituents. This opinion addresses the question of “whether the professional responsibilities of a lawyer representing the organization require the lawyer to inform the organization when proposed future conduct may pose legal risk for the organization’s constituents.” The opinion concludes that Model Rule 1.4(b) (identical to Oklahoma’s rule) and Model Rule 2.1 (also identical to Oklahoma’s rule) allows and, in some situations, may require a lawyer to provide such information. ORPC 1.4(b) outlines “the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive.” ORPC 2.1 provides, as follows: Duties to Organizational Clients and Constituents
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