道德意见216

Representation of Closely Held 公司 in Action Against Corporate Shareholder

适用的规则

• 规则1.13(a)(作为客户的组织.)

A和B各占C的50%股份, a close corporation organized under Maryland law which did business in the District of Columbia.

C had a banking relationship with U, which also extended personal loans to A and B, individually. A和B已经拖欠了对美国的贷款. C公司已在哥伦比亚特区起诉美国烟草公司, 指控非法终止银行关系.

继C公司对美国公司提起诉讼之后, U获得了对a和的判决, 是警长的死刑出售的结果, U成为A在C中50%权益的所有者. A, 然而, 坚持认为他仍然是C公司的总裁, 因为C的两个股东, B和U are deadlocked and a majority vote is needed to remove him. U has filed an action in the Maryland courts to dissolve C because of shareholder deadlock. 这一行动仍然悬而未决.

B's widow, who has succeeded to B's interest in C, wishes to maintain C's action against U. 当然，你希望停止这一行动. The question in this Inquiry is whether C's corporate lawyer, 当C由A和B控制时保留, 可以继续代表C起诉U, 现在是它50%的股东之一, 并在U的作用下溶解C.

讨论
调查受规则1管辖.13 of the District of Columbia 职业行为准则. 根据规则1.13(a), "[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." This rule embodies the well-established principle that a lawyer retained by a corporation, or by any other organization recognized as a separate legal entity, 表示实体. As stated in EC 5-18 of the former Code of Professional Responsibility, "[a] lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a shareholder, 导演, 官, 员工, 代表, 或其他与该实体有关联的人." 看到 Opinion 159 (1985); Opinion 186 (1987); 伊根v. 麦克纳马拉, 467 A.2d 733, 738 (D.C. Ct. 的应用程序. 1983).

The principle that a lawyer representing a corporation 表示实体 and not its individual shareholders or other constituents applies even when the shareholders come into conflict with the entity. 法院通常认为, 因此, that a corporation's lawyer is not disqualified from representing the corporation in litigation against its constituents. 看,e.g.博比特v. 维多利亚住宅公司., 545F. 增刊. 1124 (N.D. 生病了. 1982); Dalrymple v. 国民银行信托公司. 特拉弗斯城, 615 F. 增刊. 979 (W.D. 密歇根州. 1985); U.S. 行业,公司. v. 高盛, 421 F. 增刊. 7 (S.D.N.Y. 1976); 韦兰v. 海岸龙虾 & 捕虾公司., 537 F. 增刊. 1220 (S.D.N.Y. 1982). A different result may sometimes be required where the shareholders of a closely held corporation reasonably might have believed they had a personal lawyer-client relationship with the corporation's lawyer. 看,e.g.，罗斯曼v. 夏皮罗, 653 F. 增刊. 1441 (S.D.N.Y. 1987); 布朗斯坦案, 288 Or. 83, 602 P.2d 655 (1979); 银行, 283 Or. 459, 584 P.2d 284 (1978). 但事实并非如此, 然而, 既然在这种情况下，美国, 银行, could not reasonably believe it has or had a personal lawyer-client relationship with C's lawyer.

Since C's lawyer is not disqualified from continuing to represent C in its litigation with one of its 50% shareholders, the question arises how the lawyer is to carry out his ethical duties in this representation. 一方面，一方面, the corporate lawyer owes a duty of loyalty to the corporation, 与它的所有者和管理者截然不同, and he or she must act in the best interests of the corporation as an entity.

另一方面, the lawyer must normally follow the direction of those duly appointed or elected to act on behalf of the corporation. 看,e.g.金融通用银行股份有限公司. v. Metzger, 523 F. 增刊. 744, 764 ( D. D.C. 1981), 因缺乏管辖权而空缺n, 680 F.2d 768 (D.C. 圆形的. 1982) (". . . 实践和理论, the corporate attorney should consider himself as representing the entity interests articulated by those in current control of the management"); ABA Informal Opinion 1056 (1968); Comment, 法律职业中的法律冲突， 94哈维. L. 牧师. 1244, 1336 (1981). 规则1.13 expressly recognizes that a lawyer represents an organization such as a corporation "through its duly authorized constituents." Comment [4] further states that "[w]hen constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful."

这里的困难是公司的总裁, A, may continue to hold office only because of the shareholder deadlock; moreover, 因为他自己与美国的争端, A may have reason to disregard the corporation's interest in determining the corporation's course of action in its dispute with U. 尽管有这些困难, the corporation's lawyer may continue to take direction from A until the dispute over control of the corporation is resolved by the courts or the parties. If, 然而, the lawyer should become convinced that A's decisions are clearly in violation of A's own fiduciary duties to the corporation, the lawyer may be forced to seek guidance from the courts as to who is in control of the corporation, there being no higher authority within the corporation to whom the lawyer can turn. 在整个陈述中, the lawyer must continue to recognize that the interests of the corporation must be paramount and that he must take care to remain neutral with respect to the disputes between the present shareholders, B和U, 在A和U之间. 看到 ABA Opinion 86 (1932) ("In acting as the corporation's legal adviser [an attorney] must refrain from taking part in any controversies or factual differences which may exist among stockholders as to its control"), 经批准引用于 金融通用银行股份有限公司. v. Metzger, 523 F. 增刊. at 765.

调查90 - 1040 
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