All ethics and privilege issues in the corporate context start with a basic question — who is the lawyer’s client? The default answer is that lawyers represent the incorporeal entity, acting through its “duly authorized” constituents – usually the board of directors. That doesn’t really help much, because it’s hard to communicate with an incorporeal entity.
But corporations and lawyers can agree to a different arrangement. In In re Sampedro, the court relied on a corporation board member’s declaration “affirming that ‘[i]n February 2018, the subset of the [corporate] board of directors engaged [a law firm] to provide advice on the appropriate structure’” of an engagement. No. 3:18-MC-47 (JBA), 2020 U.S. Dist. LEXIS 24114, at *6 (D. Conn. Feb. 11, 2020) (first alteration in original). This meant that “the attorney from [that law firm] was not a third party to an attorney-client relationship, and no waiver occurred by virtue of her inclusion in the email communication.” Id.
Lawyers representing corporations or any of their constituents must always know whom they represent (and whom they do not represent) – then make that clear to everyone involved.