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John Gaal's Ethics Corner
Q: I represent an organizational client. I have concerns that some recent decisions made by my client contact have been ill-advised. I do not believe that anything illegal is going on, but I do question whether my client is being well served by some of these decisions. Do I have an obligation to report my concerns to anyone else in the organization?
A: Actually, no. New York's Code of Professional Responsibility, in DR 5-109, imposes an obligation on lawyers representing organizational clients to report certain matters “up the corporate ladder,” but that provision is narrowly drawn.
Under DR 5-109, a lawyer is required to take action when 1) he or she knows that an officer, employee or other person associated with the organization is engaging in action, intends to act or refuses to act 2) in a matter related to the lawyer's representation 3) that is a violation of a legal obligation owed to the organization or is a violation of law which is likely to be imputed to the organization, and 4) which is likely to cause substantial harm to the organization. Significantly, the obligation to act is only triggered by knowledge of current or future activity (not past conduct) that either breaches a legal obligation owed to the entity or which will create legal liability for the entity. Thus, in your example, DR 5-109 is not triggered. While your concerns about the advisability of some recent decisions may be well founded, there is nothing to indicate that those decisions involve any breach of a duty or will otherwise give rise to legal liability.
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