Rule 1.13(b) - Flowchart

What is Rule 1.13(b) analysis used to determine?

Compliance duty when representing an organizational client. Determining if there a duty to proceed as reasonable necessary in the best interests of the org; typically this means reporting up, including to the highest authority in the org

What are the 7 questions of Rule 1.13(b) analysis?

1. Represent the entity?

2. Threat of likely substantial injury?

3. Injury to the entity?

4. Injury result of act, inaction, or plan of officer, employee, or other person associated with entity?

5. Act, inaction, or plan in a matter related to the representation?

6. Knowledge of act, inaction, or plan? (Level of confidence)

7. Does act, inaction, or plan violated a duty to the entity or impute a legal violation to the entity?

→ If yes to all 7, compliance duty.

→ If no to one, no compliance duty—stop analysis

1. If not representing the entity, what should you do? What are relevant rules?

Don’t advise; See Rules 4.2 and 4.3

2. If threat of likely substantial injury, what should you do? What are relevant rules?

May, but need not, alert client about risk of minor or remote harm; See Rule 1.13 comment 4

3. If injury to the entity, what should you do? What are relevant rules?

Don’t assist client in criminal or fraudulent conduct; See Rule 1.2(d), 1.6(b), 3.3, 4.1, 1.13 comment 6

4. If injury was the result of act, inaction, or plan of officer, employee, or other person associated with entity, what should you do? What are relevant rules?

Consider duties under Rule 1.1 and 1.4 and to counsel entity regarding external threat

5. If act, inaction, or plain was in a matter related to the representation, what should you do? What are relevant rules?

Move to next question/no relevant rules

6. If knowledge of act, inaction, or plan, what should you do? What are relevant rules?

No general duty to investigate client; See Rule 2.1 comment 5

• Suspicion coupled with duty to advise/rep may create a duty to investigate

• Note also knowledge can be inferred; lawyer cannot ignore th obvious

• See Rule 1.0(f), 1.13 comment 3

7. If act, inaction, or plan violates a duty to the entity or imputes a legal violation to the entity, what should you do? What are relevant rules?

If act, inaction, or plan is legal, generally accept entity decisions even if imprudent or unwise; see Rule 1.13 comment 3

If yes to all 7/compliance duty, when is a lawyer not required to report up?

If lawyer reasonable believes doing so is unnecessary

If yes to all 7/compliance duty, what rules are relevant?

See Rule 1.13 comment 4 for factors, including seriousness of violation and consequences, motives, and responsibility of constituent, and company policies. “Ordinarily, referral to a higher authority would be necessary.”