Tough Calls: Is Your Loyalty to the Person, Office or Organization?

Editor’s Note:  This piece originally ran in the February 2018 of our Crisis Management Today newsletter.  We thought it worthwhile to run again.

A frequent concern at Hennes Communications before and during the work we do for clients is to make certain we understand who our client actually is.  In most situations, it’s an institution, organization or company – not necessarily the individual who hired us or signed the engagement letter. 

Many of our readers must make that same determination. When there are illegalities, when you see something that flies in the face of the written rules – or even unwritten corporate culture and values – where does loyalty lie? 

Please note that Hennes Communications is not a law firm and the information below does not constitute legal advice.  Should you be confronted by situations raised below, we urge you to consult your attorney for advice.

Attorneys and clients still get confused.

Whether you are general counsel for the president of the United States or the president of a university, there remains confusion about when the attorney-client privilege can be invoked, and when there is no such privilege at all.  General counsel in these situations, has always meant that the attorney represents the Office of the Presidency, and not the president himself/herself.  Wait, what????  Yes, general counsel represents the office, not the person.  Why is that important?  Because if you are general counsel for any public official, and you are giving advice to that person, the advice is only privileged if you are giving as it relates to his/her official capacity. Meaning, if your president, mayor, county executive, councilperson, trustee or school board member is alleged to have done something criminal – that action was not done in his/her official capacity, and any advice you give would not be in your capacity as general counsel and therefore, not be protected by the attorney-client privilege.

Confused yet?  Maybe this will help.

The above conundrum of representing an “office” versus representing the “person” is well-explained by someone who should know, John W. Dean III, former counsel to President Richard Nixon. Having previously been caught-up in the events leading up to the Watergate burglaries and the subsequent Watergate scandal cover-up, and eventually serving time in prison, Dean is now a Justia columnist.  In one of his columns, Dean analyzes Watergate and a more recent scandal, the Penn State child-abuse debacle, and explains why attorneys get confused, and sometimes in trouble, when they aren’t sure if their client is the “office” or the “person.”

You can read the John Dean piece here.