December 11, 2023 - On December 6th, the LSTA hosted its annual ethics webinar presented by Thomas E. Spahn, Counsel at McGuireWoods. Mr. Spahn is a brilliant speaker, and the LSTA has been so fortunate that Mr. Spahn has been willing to impart his knowledge and teach LSTA legal members about ethics for more than a decade. This year, his program used hypotheticals to address the most basic question preceding any conflicts (and many other ethics and privilege) analyses: who is your client?
Although it may seem a straightforward question, Mr. Spahn explained that in some circumstances it can be challenging to determine who one’s client is. After discussing client identity when representing the government, partnerships, associations, insureds, estates and bond deal participants, Mr. Spahn turned to addressing the client identity in the corporate context. Because all ethics duties and in most situations privilege ownership depends on properly identifying the “client”, it should come as no surprise that lawyers must always know their clients’ identity at all times. With corporate clients, this can be easier said than done. Here Mr Spahn reviewed hypotheticals which examined the client identity within the corporate entity, within a corporate family, during corporate stock and asset sale transactions, and when dealing with corporate employees.
Whether or not corporations or other legal entities themselves can be treated as “persons”, lawyers who represent such incorporeal entities must communicate with and ultimately take direction from actual persons. Those individuals might also be the lawyer’s clients. Thus, lawyers should always explicitly indicate whom (or what) they are representing at all times and in every situation. As Mr. Spahn cautioned attendees, in some situations, it is as important or even more important to explicitly disclaim an attorney-client relationship than it is to affirm one. The hypothetical examples during the presentation were excellent ways for attendees to think through the issues and understand the more nuanced situations. Click here for the slides and replay.
