Although the Rules of Professional Conduct have many provisions targeted to lawyers who are in private practice, in-house lawyers, who are dedicated solely to representing their corporate client’s—and employer’s—interests, are still subject to those rules.

Notably, the nature of the in-house counsel role can pose some unique ethical considerations for attorneys whose clients also serve as their employers.

Among other things, in-house counsel may wear different hats in the course of their work, acting as both legal adviser and business adviser at times, which can lead to complicated ethics questions.

Here are some common ethics issues that in-house lawyers may face.

Conflicts of Interest—Former Clients

Rule 1.9 of the ABA Model Rules of Professional Conduct prohibits lawyers who formerly represented a client in a matter from representing an adverse party in the same or a substantially related matter, absent the former client’s informed consent. This rule is largely aimed at preventing lawyers, who acquire confidential information when working on behalf of one client, taking on a subsequent representation where that confidential information might be used to the former client’s disadvantage.

This rule can come up when lawyers move in-house from private practice. Under the rule, the in-house lawyer cannot be adverse to a client of their former law firm in a substantially related matter. Comment [7] to the rule specifically discusses lawyers changing professional associations and reminds them of their “continuing duty to preserve confidentiality of information about a client formerly represented.”

Rule 1.11 of the ABA Model Rules applies to in-house lawyers who moved from government work. Under Rule 1.11, those lawyers may not “represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government entity gives informed consent[.]” Comment [3] explains the intent of the rule, which is to guard against the lawyer’s prior position in the government sector from being used for a private client’s special benefit.

Conflicts of Interest—Representing Organizations

Lawyers in private practice may use an engagement letter to define who the client is, when taking on a new representation. For lawyers in private practice, the issue can be more complicated.

Under Rule 1.13, “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” Thus, an in-house lawyer’s client is typically the organization itself.

Section (f) advises that, “[i]n dealing with the 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.”

There may be circumstances, however, in which an in-house lawyer is providing legal support to individual employees of the company. For example, Rule 1.13 allows lawyers to represent an organization and “any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7.”

This may come up in a situation in which an in-house lawyer provides guidance to an employee who is about to be deposed in a case involving the organization. The in-house lawyer is permitted to provide advice to the employee, but the lawyer should be wary of any situations that could create a conflict, such as when the individual employee’s interests and the corporate client’s interests are adverse.

The Hybrid Role of Lawyer and Adviser

In-house lawyers frequently serve multiple roles for their companies, providing both legal and business advice. Which hat is being worn is an important consideration when reviewing issues implicating the attorney-client privilege.

Notably, the mere presence of in-house counsel during a meeting or simply copying in-house counsel as one of several recipients on a communication may not be enough to cloak the communication in privilege. Additionally, the communication must involve a request for legal advice. If a communication with an in- house counsel relates solely to business concerns, a court may conclude that the communication is not privileged.

Conducting Internal Investigations

In-house counsel frequently assist with conducting internal investigations at a company, which present their own ethical considerations. As an initial matter, interviewing an employee during a corporate investigation implicates the corporation’s privilege.

In accordance with Rule 1.13(f), in-house counsel will often advise the employee that they represent the company, not the employee as an individual, and that the lawyer is permitted to tell the company anything the employee divulges. Sometimes, for this reason, companies will elect to use outside counsel to conduct sensitive internal investigations, which, among other things, can help avoid any misunderstandings about an in-house lawyer’s role (and any potential awkwardness around the Upjohn warning that an employee’s conversations with in-house counsel are not private from their employer).

As noted above, there may be circumstances in which an in-house lawyer can represent an individual employee in an event like a deposition. However, if the employee is adverse to the company, the conflicts-of-interest rules advise that in-house counsel cannot represent both parties.

Unauthorized Practice of Law Issues

The ethical rules in some states, including Georgia, have exceptions for in-house lawyers that allow them to bypass special admission into the states when acting as in-house counsel. Specifically, Georgia Rule 5.5(d) allows domestic lawyers (i.e., lawyers who are admitted in another U.S. state or district but not admitted in Georgia) to provide in-house legal services to its client corporation, even without being admitted to the State Bar of Georgia.

Comment [16] to the ABA Rule equivalent specifically advises that this rule applies to in-house lawyers and recognizes that corporate employers are well-suited to recognize the risk of working with lawyers that are not admitted in that state: permitting lawyers to act as in-house counsel in jurisdictions in which they are not admitted “does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work.”

By being mindful of these considerations, in-house lawyers can help ensure they are compliant with ethical obligations.