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Tag Archive 执业规范

美国律师协会《职业行为示范规则2021版》对于律师执业中的利益冲突是如何认定的?

翻译:许馨梅

利益冲突问题一直是律师执业需要重点防范的执业风险,那么美国律师协会对于利益冲突问题又是如何规定的,我们可以借鉴一下美国律师协会《职业行为示范规则》中的相关规定,目前《职业行为示范规则》最新版为2021年版本,融冰团队许馨梅为此针对利益冲突一节进行了翻译如下​:

中文版:

《职业行为示范规则(2021年版)》

规则1.7-1.13

规则1.7 利益冲突:现有客户

(a) 除(b)款另有规定外,如果代理涉及到并存的利益冲突,律师则不可代理该客户。并存的利益冲突指:

(1) 代理某客户将直接对另一个客户不利;

(2) 一个或多个委托人的代理将受到律师对另一个委托人、前委托人、第三人责任或律师个人利益的重大限制。

(b) 尽管存在(a)款所述的并存的利益冲突,但在下列情况下,律师可代理该客户:

(1) 律师合理相信自己将能够为每位受影响的客户提供称职且勤勉的代理;

(2) 法律不禁止代理的;

(3) 该项代理不涉及在法庭审理的同一诉讼或其他法律程序中对该律师所代理的其他当事人提出的索赔主张;

(4) 每位受影响的客户均给予书面确认的知情同意。

规则1.8 利益冲突 现有客户:具体规则

(a) 律师不得与客户进行商业交易,或在明知的情形下获取对客户不利的所有权、占有权、担保或其他金钱利益,除非:

(1) 律师获得上述利益的交易及条款对委托人是公平合理的,并以委托人能够合理理解的方式以书面形式充分披露和传递;

(2) 以书面形式告知客户另外寻求独立法律顾问的可取性,同时给予客户合理的机会咨询独立法律顾问对此交易的建议;

(3) 客户以书面签署形式对交易的基本条款和律师在交易中的作用给予知情同意,包括律师是否在交易中代理客户。

(b) 除非客户给予知情同意,否则律师不得使用对客户不利的信息,除非本规则允许或要求。

(c) 律师不得向客户索取任何实质性的利益,包括遗嘱赠与,或以客户名义拟定文书,向律师或与律师有关的人提供实质性利益,除非该律师或其他受赠人与该客户有关。就本款而言,有关人士包括配偶、子女、孙子、父母、祖父母或与律师或客户保持密切家庭关系的其他亲属或个人。

(d) 在委托人的代理结束前,律师不得订立或协商任何给予律师与代理有关信息为基础的描写或叙述的文学或媒体权利的协议。

(e) 律师不得就未决或预期诉讼向委托人提供经济援助,但下列情况除外:

(1) 律师可以垫付其偿还视案件的结果而定的诉讼费用;

(2) 代理贫困委托人的律师可以代表该委托人支付诉讼费用;

(3) 无偿代理贫困客户的律师、通过非营利法律服务机构或公益组织无偿代理贫困客户的律师以及通过法学院临床或公益项目无偿代理贫困客户的律师可以向客户提供少量的食物、租金、交通费等利益以及药品和其他基本生活费。但律师:

(i) 不得承诺、保证或暗示在保留前提供此类经济利益,或作为保留后继续保持客户-律师关系的诱因;

  (ii) 不得向委托人、委托人的亲属或者与委托人有关联的任何人索取或者接受补偿;

(iii)不得宣传或宣传向潜在客户提供此类经济利益的意愿。即使本次代理有资格根据费用转移法规获得费用,也可根据本条规则获取财政援助。

(f) 律师不得因代理委托人而接受委托人以外的人的赔偿,除非:

(1) 委托人给予知情同意;

(2) 不影响律师职业判断的独立性,且不影响委托人与律师的关系;

(3) 与客户代理有关的信息已根据第1.6条规则的要求受到保护。

(g) 代理两个或两个以上委托人的律师不得参与对委托人的索赔或对委托人的索赔的综合和解,或在刑事案件中参与对有罪或无抗辩的综合协议,除非每个委托人以委托人签署的书面形式给予知情同意。律师的披露应包括所涉及的所有索赔或请求的存在和性质,以及每个人参与和解的情况。

(h) 律师不得:

(1) 订立协议以前瞻性地限制律师对委托人的医疗事故责任,除非委托人在订立协议时有独立代表;

(2) 与无人代表的委托人或前委托人解决此类责任的索赔或潜在索赔,除非该人以书面形式被告知寻求此类责任的可取性,并有寻求独立法律顾问建议的合理机会。

(i) 律师不得在其为委托人进行的诉讼事由或诉讼标的中取得所有权权益,但律师可以:

(1) 取得法律授权的留置权以保证律师费用及花销;

(2) 在民事案件中与客户签订合理费用的合同。

(j) 律师不得与委托人发生性关系,除非在委托人与律师关系开始时双方存在自愿的性关系。

(k) 当律师与律师事务所有联系时,上述(a)至(i)款中适用于其中任何一人的禁令应适用于该律所所有人。

规则1.9 对前客户的义务

(a) 以前曾在某事项上代理该客户的律师,其后不得在同一事项上或在实质上有关的事项上代理另一人,所谓实质有关指该另一人在该事项上的利益对该前客户的利益有重大不利影响,但如该前客户给予知情同意并以书面确认,则属例外。

(b)律师不得在与该律师以前有关联关系的商号先前代理客户的相同或实质上相关的事项中,在明知的情形下代理他人:

(1)与本人有重大利害关系的;

(2)律师获得了受规则1.6和1.9(c)条保护的与该事项有关的重要信息的人;除非原客户给予书面确认的知情同意。

(c)曾在某事项中代理客户的律师,或其现在或以前的事务所曾在某事项中代理客户的律师,其后不得:

(1)使用对前客户不利的与代理有关的信息,但本规则对客户允许或要求的情况除外,或在该信息已为公众所知的情况下除外;

(2)披露与代理有关的信息,但本规则允许或要求涉及客户的信息除外。

规则1.10 利益冲突的归责:一般规则

(a)虽然律师与事务所有关联关系,但当规则1.7或1.9禁止律师单独执业时,律师不得在明知的情形下代理客户,除非:

(1)该禁令基于被取消资格的律师的个人利益并不存在严重的风险,不会对该律师事务所剩余律师代理客户的工作造成实质性限制;或

(2)该禁令基于规则1.9(a)或(b)款,并源于被取消资格的律师与以前的公司的联系:

(i)对不合格的律师及时进行甄选,使其不参与任何事务,并且不从中分摊任何费用;

(ii)及时向任何受影响的前客户发出书面通知,以使前客户能够确定其是否遵守本规则的规定,其中应包括对所采用的筛选程序的说明;公司和被筛选的律师遵守本规则的声明;可在法庭上获得复核的声明;以及由公司迅速回应前客户关于筛选程序的任何书面询问或异议的协议;和

(iii)经筛选的律师和本事务所的合伙人应前客户的书面要求并在筛选程序终止后,在合理的时间间隔内向前客户提供符合本规则和筛选程序的证明。

(b)当一名律师终止与某律师事务所的合作后,该律师事务所不被禁止代理与该律师代理的、目前未由该律师代理的客户的利益有重大不利利益的人,除非:

(1)该事项与前关联律师代表委托人的事项相同或实质上相关;

(2)留在事务所的任何律师拥有受规则1.6和1.9(c)款保护的对该事项具有重大意义的信息。

(c)受影响的客户可根据规则1.7所述的条件放弃本规则规定的资格取消。

(d)公司内与前或现任政府律师有关联的律师资格的取消,适用规则1.11。

规则1.11 前任和现任政府官员和雇员的特殊利益冲突

(a)除法律另有明文准许外,曾担任政府公职人员或雇员的律师:

(1)受第1.9(c)条规限;

(2)在律师亲自参与并实质上作为公职人员或雇员参与的事项中,不得代理客户,除非有关政府机构以书面形式对代理人作出知情同意​。

(b)当一名律师根据第(a)款被取消代理资格时,该律师所属的律师事务所内的任何律师不得在知情的情况下就该事项进行或继续代表,除非:

(1)被取消资格的律师会被及时甄选出,使其不会参与有关事项,且无须分摊有关费用;

(2)及时向有关政府机构发出书面通知,以确定其是否符合本规则的规定。

(c)除非法律另有明确允许,当律师所掌握的信息是律师作为公职人员或雇员时获得的有关个人的政府机密信息时,不得代理在某一事项中其利益与该人相悖的私人客户,且在该事项中该信息可能被用来对该客户造成重大不利影响。本规则所称的”政府机密信息“,是指在适用本规则时,政府根据政府授权取得的、法律禁止向公众披露的或依据法律特权可不向公众披露的、公众无法获得的信息。该律师所属律师事务所,只有在该被取消资格的律师被及时甄别出不可参与该事项,并且没有从中分摊费用的情况下,才可就该事项进行继续代理。

(d)除法律另有明文许可外,目前担任公职人员或雇员的律师:

(1)受规则1.7和1.9约束;

(2)不得:

(i)参与律师在私人执业或非政府就业期间亲自和实质性参与的事项,除非有关政府机构以书面形式作出知情同意;

(ii)与以当事人身份或以律师身份为当事人就该律师以个人名义和实质上参与的事项进行私人雇佣谈判,但担任法官法律书记的律师除外。审裁官或仲裁员可根据第1.12(b)条的许可,并在第1.12(b)条规定的条件下就私人雇佣进行谈判。

(e)本规则中“事项”一词包括:

(1)任何司法或其他程序、申请、裁定请求或其他裁定、合同、索赔、争议、调查、控告、逮捕或其他涉及某一方或多方的特殊事项,以及

(2)有关政府机构的利益冲突规则所涵盖的任何其他事项。

规则1.12 前法官、仲裁员、调解人或其他第三方中立者

(a)除(d)款另有规定外,律师不得代理其亲自或实质上作为法官、其他裁判人员、书记员或作为仲裁员、调解人及他第三方中立者参与的事项有关的任何人,除非诉讼的所有各方以书面确认作出知情同意。

(b)如果律师亲自或实质上作为法官、其他裁判人员或仲裁员、调解人或其他第三方中立者参与过该事项,则不得与作为当事人一方或作为当事人一方律师的任何人员就雇佣事宜进行谈判。但若律师仅担任法官或者其他审判人员的书记员,可以与其亲自或者实质性参与事项的当事人一方或作为当事人一方的律师协商雇佣事宜,但必须事先通知法官或者其他审判人员。

(c)如律师因第(a)款被取消资格,则该律师所属的律师事务所内的律师不得在知情的情况下就该事项进行或继续进行代理,除非:

(1)该名不具备资格的律师被及时甄选出不得参与该事项,且并未从中分得任何费用;

(2)立即向双方及任何有关法庭发出书面通知,以使他们能够确定本规则是否得到遵守。

(d)在多成员仲裁小组中被选为一方当事人的仲裁员不被禁止随后事项中代理该方。

规则1.13 组织客户

(a)被某组织雇用或聘请的律师代理该组织应通过其正式授权的成员行事。

(b)如果某组织的律师知道某一官员、雇员或与该组织有关联的其他人正在进行诉讼,打算或拒绝就与该代理有关的违反该组织的法律义务的事项采取行动,或正在进行可合理归咎于该组织的违法行为,并且有可能对该组织造成实质损害,那么律师应根据该组织的最佳利益合理地采取必要的行动。除非律师有理由认为这样做不符合组织的最佳利益,否则律师应将该事项提交组织的上级主管部门,包括(如有必要)根据适用法律确定的可以代表组织行事的最高主管部门。

(c)除(d)款规定的情况外,如

(1)尽管律师根据(b)款的规定作出了努力,但代表本组织采取行动的最高主管部门坚持或没有及时和适当地处理行动或拒绝行动,这显然是违法的;

(2)如果律师有理由相信该违反行为必然会对组织造成重大损害,那么律师可以披露与代理有关的信息,无论规则1.6是否允许披露该信息。但前提是,在某种程度上律师合理认为有必要阻止对组织的实质性损害。

(d)第(c)款不适用于与律师代理某组织调查涉嫌违法行为、或为该组织及与该组织有关的官员、雇员或其他成员就涉嫌违法行为提出索赔进行辩护的有关信息。

(e)当律师合理地相信自己因根据(b)或(c)款所采取的行动而被解职,或在需要或允许其根据上述任何一款采取行动的情况下被解雇,应按照律师合理认为的有必要的方式进行,以确保律师的离职或退出通知到该组织的最高主管部门。

(f)律师在与组织的董事、高级职员、雇员、成员、股东或其他成员交易时,在律师知道或合理地应该知道该组织的利益与该律师所交往的其他客户的利益相抵触时,应解释该客户的身份。

(g)根据规则1.7的规定,代理某组织的律师也可以代理该组织的任何董事、高级职员、雇员、成员、股东或其他成员。该组织同意第1.7条规定的双重代表权,则该同意应由本组织的相关官员作出,而非由被代表的个人或股东作出。

英文原文​:

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

  (1) the representation of one client will be directly adverse to another client; or

  (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:      

​(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and

(3) a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses. The lawyer:

     (i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;

    (ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and

    (iii) may not publicize or advertise a willingness to provide such gifts to prospective clients. Financial assistance under this Rule may be provided even if the representation is eligible for fees under a fee-shifting statute.

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

       (1) the client gives informed consent;

       (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

      (3) information relating to representation of a client is protected as required by Rule 1.6.

(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

(h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or

(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

   (1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and

   (2) contract with a client for a reasonable contingent fee in a civil case.

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

RULE 1.9: DUTIES TO FORMER CLIENTS

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9( c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the prohibition is based upon Rule 1.9( a) or (b), and arises out of the disqualified lawyer’s association with a prior firm, and      (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;

   (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and

   (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9( c) that is material to the matter.

(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9( c); and

(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:

(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or

(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12( b) and subject to the conditions stated in Rule 1.12( b).

(e) As used in this Rule, the term “matter” includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

RULE 1.12: FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER THIRD-PARTY NEUTRAL

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

RULE 1.13: ORGANIZATION AS CLIENT

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

(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 that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.

(c) Except as provided in paragraph (d), if

(1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action or a refusal to act, that is clearly a violation of law; and

(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

(d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.

(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.

(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.

(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

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