§4.1 Identifying the Client

• Jurisdiction: Washington

I. IDENTIFYING THE CLIENT

In many cases, it will be obvious who the client is, but not always. As noted above, no attempt is made in the RPC to offer a general definition of the term. There are, however, several rules that assist in the determination of who the client is. Most important is RPC 1.13, which deals with "organization" clients and was finally adopted in Washington in 2006. Insofar as this rule and the corresponding comments address the challenge of identifying organizational clients, it will be discussed in this chapter. Discussion of conflicts of interest and confidentiality, as these issues arise in the organizational context, is deferred to Chapters 6 and 7, which examine those topics in detail. RPC 1.18, which addresses duties owed to "prospective clients," also clarifies the process of "client identification" by making clear that duties may be owed to prospective clients without needing to classify them as true clients.³

RPC 1.13 states plainly that "[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents."⁴ The Restatement of the Law Governing Lawyers adopts the same "entity" theory of organizational representation.⁵ The paradigm organization in today's world is the corporation, but the comments that accompany RPC 1.13 make clear that the principle of the rule extends to unincorporated associations and governmental organizations as well.⁶ The Restatement enlarges the list:

Such organizations include for-profit and nonprofit corporations, limited-liability companies, unincorporated associations (such as trade associations and labor unions), general and limited partnerships, professional corporations, business trusts, joint ventures, and similar organizations. An organization client may also be an informal entity such as a social club or an informal group that has established an investment pool.⁷

The simplicity of the concept, however, belies the complexities in its application. The challenge for a lawyer dealing with an organizational client, of course, is that the organization can only speak through its employees and agents, and ambiguities may arise regarding the duties owed to the legal entity that is the organization, as opposed to those owed to the constituents with whom the lawyer deals for direction and advice. Moreover, in some instances the law designates an individual to speak for an entity and makes that individual the lawyer's client, rather than the entity, contrary to what an uninformed observer might suppose. Thus, general principles of law say that a lawyer representing a decedent's estate or a trust or a guardianship "estate" represents not the entity but the personal representative or the trustee or guardian acting in a fiduciary capacity.⁸ And some vehicles for collective action, such as class actions, seem to fade in and out of existence as clients depending on the purpose for which the question is asked.⁹

In today's bureaucratic world, the idea that "the government" or "General Motors" is a single...