Ethics 2000

RULE 1.0: TERMINOLOGY

Comment

[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.

Model Rule 1.0

Reporter’s Explanation of Changes from Rule as Adopted in August 2001

[8] The reference to Rule 1.10 was deleted due to the decision by the House not to adopt the Commission's screening proposal in Rule 1.10(c).

RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

Comment

[8] Although paragraph (c) does not require that the client's informed consent to a limited representation be in writing, a specification of the scope of representation will normally be a necessary part of the lawyer's written communication of the rate or basis of the lawyer's fee as required by Rule 1.5(b). See Rule 1.0(e) for the definition of "informed consent."

[11] [10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. See Rule 4.1.

Model Rule 1.2

Reporter’s Explanation of Changes from Rule as Adopted in August 2001

[8] This Comment has been deleted in light of the action of the House of Delegates not to adopt the requirement that lawyers communicate in writing the basis of the fee and the scope of the representation.

[10] Given the decision of the House not to adopt proposed Rule 1.6(b)(2), the deleted sentence is inappropriate.

RULE 1.6: CONFIDENTIALITY OF INFORMATION

Comment

[7] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b) (4) (2) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct.

[8] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b) (5) (3) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

[9] A lawyer entitled to a fee is permitted by paragraph (b) (5) (3) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

[10] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b) (6) (4) permits the lawyer to make such disclosures as are necessary to comply with the law.

[11] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b) (6) (4) permits the lawyer to comply with the court's order.

[13] Paragraph (b) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in paragraphs (b)(1) through (b) (6) (4). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).

Withdrawal

[14] If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1). After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise permitted by Rule 1.6. Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like. Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13(b).

Model Rule 1.6

Reporter’s Explanation of Changes from Rule as Adopted in August 2001

[7] - [11] and [13] Citations to the Rule text were revised to reflect the decision of the House not to adopt proposed paragraphs (b)(2) and (b)(3).

Caption Add "Withdrawal"

[14] Interpreting the House of Delegates deletion of paragraph (b)(2) as evidence of an intent to retain the current Model Rule, the first three comments under the heading "withdrawal" of the current Model Rules were restored and combined as a single Comment [14].

RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

(c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9.

Comment

[6] Where the conditions of paragraph (c) are met, imputation is removed, and consent to the new representation is not required. Lawyers should be aware, however, that courts may impose more stringent obligations in ruling upon motions to disqualify a lawyer from pending litigation.

[7] Requirements for screening procedures are stated in Rule 1.0(k). Paragraph (c)(2) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[8] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[9] [6] Rule 1.10 (d) (c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each affected client or former client has given informed consent to the representation, confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Rule 1.7, Comment [22]. For a definition of informed consent, see Rule 1.0(e).

Model Rule 1.10

Reporter’s Explanation of Changes from Rules as Adopted in August 2001

TEXT:

Delete paragraph (c)

The House decided not to adopt the proposed screening provision in paragraph 1.10(c)(1), (2) and (3). In light of that action, no purpose is served by the remaining portions of paragraph (c), given that paragraph (a) already states that conflicts of one firm lawyer under Rule 1.9 are imputed to other lawyers in the firm.

COMMENT:

[6] - [8] Since the House did not approve the screening provision, the related Comments have been deleted and the remaining Comments renumbered.

[6] A citation to the Rule text was revised to reflect the deletion of paragraph (c).

RULE 1.11: SUCCESSIVE SPECIAL CONFLICTS OF INTEREST FOR FORMER
AND CURRENT GOVERNMENT OFFICERS
AND PRIVATE EMPLOYMENT EMPLOYEES

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rules 1.9(a) and (b), except that "matter" is defined as in paragraph (e) of this Rule;

(2) (1) is subject to Rule 1.9(c); and

(3) (2) shall not otherwise 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 agency consents after consultation gives its informed consent, confirmed in writing, to the representation.

Comment

[2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client under Rule 1.9 . Rule 1.10 , however, is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

[3] Paragraphs (a) (3)(2) and (d)(2) impose additional obligations on a lawyer who has served or is currently serving as an officer or employee of the government. They apply in situations where regardless of whether a lawyer is not adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph (d). As with paragraphs (a)(1) , (a)(2) and (d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.

[3] [4] Where This Rule represents a balancing of interests. On the one hand, where the successive clients are a public government agency and a private another client, public or private, the risk exists that power or discretion vested in that agency public authority might be used for the special benefit of a private the other client. A lawyer should not be in a position where benefit to a private the other client might affect performance of the lawyer's professional functions on behalf of the government public authority. Also, unfair advantage could accrue to the private other client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However On the other hand, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The provisions for screening and waiver in paragraph (b) are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in paragraphs (a)(1), (a) (3)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function.

[7] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. When disclosure is likely to significantly injure the client, a reasonable delay may be justified.

[10] For purposes of paragraph (e) of this Rule, a "matter" may continue in another form. In determining whether two particular matters are the same, the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.

Model Rule 1.11

Reporter’s Explanation of Changes from August 2001 Report

TEXT:

Delete paragraph (a)(1)

This paragraph was deleted after consultation with a number of interested Sections. The remaining paragraphs were renumbered.

COMMENT:

[2] - [4] These changes were also made due to the deletion of paragraph (a)(1).

[7] The last sentence has been deleted as confusing and unnecessary.

[10] This new Comment clarifies that two particular matters may constitute the same matter for purposes of paragraph (a)(2), depending on the circumstances. The language is drawn from but is not identical to the definition of "matter" as it is used in the federal conflicts of interest statute. Cf. 5 C.F.R. 2637.201(c)(4).

  RULE 1.12: FORMER JUDGE OR , ARBITRATOR , MEDIATOR
OR OTHER THIRD-PARTY NEUTRAL

Comment

[5] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. When disclosure is likely to significantly injure the client, a reasonable delay may be justified.

Model Rule 1.12

Reporter’s Explanation of Changes from August 2001 Report

[5] The last sentence has been deleted as confusing and unnecessary.

RULE 1.18: DUTIES TO PROSPECTIVE CLIENT

(d) Representation When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if :

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (1)

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) (ii) written notice is promptly given to the prospective client.

Comment

[7] Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d) (1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. See Rule 1.0(k) (requirements for screening procedures). Paragraph (d) (2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[8] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. When disclosure is likely to significantly injure the client, a reasonable delay may be justified.

Model Rule 1.18

Reporter’s Explanation of Changes from August 2001 Report

TEXT:

Paragraph (d): Reinsert qualification to non-consensual screening

In light of the action taken by the ABA House of Delegates on proposed Rule 1.10 screening, and in light of the proposed Fox amendment to Rule 1.18, the Commission reconsidered its earlier decision to delete the italicized language. That language appeared in earlier drafts of this Rule, and the Commission had agreed to take it out on the ground that although it should be considered in a disqualification context, it was too vague for a disciplinary standard. The Commission now believes that the reinstated language states an important prerequisite to non-consensual screening in  matters involving prospective clients.

COMMENT:

[7] Changes to this Comment are necessary to conform to the changes in paragraph (d) discussed above.

[8] The last sentence has been deleted as confusing and unnecessary.

RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS

Comment

[3] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) recognizes that states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client's crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client's crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose certain information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. The requirement of If the lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure created by this paragraph is, however, subject to the obligations created is prohibited by Rule 1.6. Rule 1.6 permits a lawyer to disclose information when necessary to prevent or rectify certain crimes or frauds. See Rule 1.6(b). If disclosure is permitted by Rule 1.6, then such disclosure is required under this Rule, but only to the extent necessary to avoid assisting a client crime or fraud.

Model Rule 4.1

Reporter’s Explanation of Changes from August 2001 Report

[3] Given the decision of the House of Delegates not to adopt the Commission's proposed Rule 1.6(b)(2), the stricken sentences are no longer appropriate.

RULE 4.4: RESPECT FOR RIGHTS OF THIRD PERSONS

(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

Comment

[2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, "document" includes e-mail or other electronic modes of transmission subject to being read or put into readable form.

Model Rule 4.4

Reporter’s Explanation of Changes from August 2001 Report

TEXT:

Paragraph (b): Add "relating to the representation of the lawyer's client"

This phrase was added in response to a proposed amendment. It clarifies that a lawyer is only required to return inadvertently sent documents that relate to the representation of the lawyer's client.

COMMENT:

[2] This change is also related to the proposed amendment discussed above.

RULE 5.6: RESTRICTIONS ON RIGHT TO PRACTICE

(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy between private parties .

Model Rule 5.6

Reporter’s Explanation of Changes from August 2001 Report

Paragraph (b): Substitute "client controversy" for "controversy between private parties"

This change clarifies that the Rule applies to settlements not only between purely private parties, but also between a private party and the government. See ABA Ethics Opinion 394.

RULE 5.7: RESPONSIBILITIES REGARDING LAW-RELATED SERVICES

(a)(2) in other circumstances by a separate an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.

Comment

[2] Rule 5.7 applies to the provision of law-related services by a lawyer even when the lawyer does not provide any legal services to the person for whom the law-related services are performed and whether the law-related services are performed through a law firm or a separate entity . The Rule identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a lawyer involved in the provision of law-related services is subject to those Rules that apply generally to lawyer conduct, regardless of whether the conduct involves the provision of legal services. See, e.g., Rule 8.4.

[3] When law-related services are provided by a lawyer under circumstances that are not distinct from the lawyer's provision of legal services to clients, the lawyer in providing the law-related services must adhere to the requirements of the Rules of Professional Conduct as provided in Rule 5.7 paragraph (a)(1). Even when the law-related and legal services are provided in circumstances that are distinct from each other, for example through separate entities or different support staff within the law firm, the Rules of Professional Conduct apply to the lawyer as provided in paragraph (a)(2) unless the lawyer takes reasonable measures to assure that the recipient of the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not apply.

Model Rule 5.7

Reporter's Explanation of Changes from August Report

TEXT:

Paragraph (a)(2): Broaden to apply to all circumstances not covered by paragraph (a)(1) and to all entities controlled by the lawyer

Paragraph (a)(2) has been broadened to cover all circumstances in which a lawyer’s provision of law-related services are distinct from the lawyer’s provision of legal services. This change, coupled with the changes to Comments [2] and [3], is intended to clarify that: (1) there can be situations in which a law firm’s provision of law-related services will be distinct from the firm’s provision of legal services, even though rendered by the firm rather than a separate entity;and (2) that in such circumstances the lawyer must comply with paragraph (a)(2). This change closes eliminates an unintended gap in the coverage of the Model Rule.

COMMENT:

[2] This change clarifies that a lawyer can directly provide law-related services in circumstances that are distinct from the lawyer’s provision of legal services. This precludes an overly restrictive reading of paragraph (a)(1) to the effect that the provision of law-related services could never be distinct from the provision of legal services if directly provided by a lawyer or law firm, rather than by a separate entity.

[3] The new sentence clarifies that paragraph (a)(2) applies in all cases in which the provision of law-related services is distinct from the provision of legal services within the meaning of paragraph (a)(1), without regard to whether the law-related services are provided directly by the lawyer or the lawyer’s firm or by a separate entity controlled by the lawyer or law firm.

RULE 7.2: ADVERTISING

Comment

[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar plan delivery system that assists prospective clients to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for prospective clients. See, e.g., the American Bar Association's Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act (requiring that organizations that are identified as lawyer referral services (i) permit the participation of all lawyers who are licensed and eligible to practice in the jurisdiction and who meet reasonable objective eligibility requirements as may be established by the referral service for the protection of prospective clients; (ii) require each participating lawyer to carry reasonably adequate malpractice insurance; (iii) act reasonably to assess client satisfaction and address client complaints; and (iv) do not refer prospective clients to lawyers who own, operate or are employed by the referral service.)

Model Rule 7.2

Reporter's Explanation of Changes from August Report

[6] The Commission believes the term "delivery system" is less confusing than "plan."

RULE 8.4: MISCONDUCT

Comment

[1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client of concerning action the client is lawfully legally entitled to take.

Model Rule 8.4

Reporter's Explanation of Changes from August Report

[1] These changes were made to conform to the language in Comment [2] of Rule 4.2.