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happened after the initial attorney-client relationship was formed, it could arguably have
created a reasonable expectation by Ellen that Linda was her personal lawyer, too. To the
extent that this rose to the level of creating an attorney-client relationship with Ellen
individually, as noted above, that would be unethical. It is an improper dual representation of
clients with actually conflicting interests in the absence of an effective disclosure and consent.
The ABA rules apply a reasonable lawyer standard that prohibits representing actually
conflicting clients unless the lawyer reasonably believes that it will not materially impair their
ability to perform the required legal services competently and diligently. That conflict waiver
must be confirmed in writing by both clients affected by the joint representation, after
receiving complete disclosure of the risks from the lawyer. In California, there is no reasonable
lawyer standard; the rule applies to both potential and actual conflicts; in case of conflicts
between clients (as here), the disclosure must be in writing as well as the clients' consent to it;
and in case of personal and professional conflicts, the disclosure must be in writing. Here, no
such waiver occurred. Again, Ellen could not have authorized it herself on behalf of the
corporation, even though she was the only employee, because she was conflicted. Consent to
the dual representation could only have come from the board (since it's a nonprofit, there are
no shareholders to potentially consent instead).
Moreover, Linda should have advised Ellen to retain independent counsel (though Ellen was
free not to do so if she chose). From the fact that Ellen drafted an employment agreement, it is
unclear whether Ellen herself was a lawyer but it certainly suggests that she did not believe she
needed a lawyer of her own. Still, especially in this situation, Linda should have told Ellen this
suggestion.
In conclusion, on the facts presented (though some important ones are missing), the client was
Nonprofit only and Linda did not clearly violate any ethical rules at the point when the
relationship was created. Based on Linda's subsequent discussions with Ellen, however, it
seems clear that Ellen did not understand the scope of Linda's duties and may have believed
Linda to be her personal attorney, and therefore under the circumstances, Linda should have
disclosed the scope of representation more clearly and ideally had a written retainer
agreement making that clear to Ellen.
2.a. With respect to the employment agreement, Linda was obligated to zealously and
competently represent Nonprofit's interests.
The fact that Ellen drafted the employment agreement is not necessarily unethical in and of
itself. A lawyer is entitled to rely on their employees and independent contractors to perform
services subject to their supervision. A lawyer can also allow a client (or in this case, the
employee of a client) to prepare documents so long as the lawyer exercises diligent and
competent review and independent legal judgment in rendering advice. Here, because Ellen
was on the other side of the transaction, it was essentially her opening offer to Nonprofit.
Upon receiving the draft from Ellen, Linda was required to review the document carefully and
to attempt to revise and negotiate the terms to benefit Nonprofit. Because it was drafted by a
nonlawyer (presumably), Linda was also required to review the draft to ensure compliance with
all applicable laws. (The most significant issue presented in these facts is the salary, based on