Summary of Proposed Changes

PREAMBLE

  • removed reference in paragraph [2] to Rule 2.2, which has been deleted
  • new paragraph [3] addresses the lawyer’s role as a third-party neutral
  • added references in paragraph [6] to a lawyer’s duty to promote access to justice and to further public understanding of the law
  • added further guidance in paragraph [9] on how the principles underlying the Rules may help resolve conflicts between a lawyer’s competing responsibilities and interests

SCOPE

  • deleted material that is no longer accurate or is redundant
  • amended paragraph [20] to reflect decisions of courts on the relationship between the Rules and causes of action against a lawyer, including the admissibility of evidence of a violation of a Rule in appropriate cases

Rule 1.0 TERMINOLOGY

  • created new Rule 1.0 on Terminology
  • added new definitions of "confirmed in writing," "informed consent," "screened," "tribunal," and "writing"
  • amended definitions of "firm" and "fraud"
  • deleted definition of "consultation" because "informed consent" has replaced "consents after consultation" throughout the Rules
  • new Comment explains the definitions

Rule 1.1 COMPETENCE

  • no change to black-letter Rule
  • expanded the Comment to address agreements to limit the scope of the representation and to identify three aspects of continuing education relevant to maintaining competence

Rule 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

  • changed Rule title from "Scope of Representation"
  • added a reference in paragraph (a) to Rule 1.4, which addresses the lawyer’s duty to communicate with the client
  • added a sentence in paragraph (a) acknowledging the lawyer’s implied authority to take action to carry out the representation
  • replaced "whether to accept offer of settlement" in paragraph (a) with "whether to settle"
  • modified paragraph (c) to permit reasonable limitations on the scope of a lawyer’s representation
  • moved paragraph (e) to Rule 1.4, which, as amended, addresses all aspects of the duty to communicate
  • made extensive modifications to the Comment to provide better guidance and explanation

Rule 1.3 DILIGENCE

  • no changes to black-letter Rule
  • made changes to the Comment to clarify the lawyer’s authority and duty to take action on behalf of the client, provide support for the bar’s civility initiatives and sharpen the discussion of a lawyer’s responsibilities with respect to taking an appeal from an adverse decision

Rule 1.4 COMMUNICATION

  • combined in Rule 1.4 all aspects of a lawyer’s duty to communicate with the client
  • modified the Comment to explain more fully the lawyer’s duty to communicate with the client

Rule 1.5 FEES

  • substituted Model Code language ["A lawyer shall not make an agreement for, charge, or collect an unreasonable fee"] for current Rule [‘A lawyer’s fee shall be reasonable"] in paragraph (a)
  • added an explicit prohibition on unreasonable expenses in paragraph (a)
  • amended the list of factors to be considered in determining the reasonableness of a fee by replacing "whether the fee is fixed or contingent" in paragraph (a)(8) with "the degree of risk assumed by the lawyer"
  • added a requirement in paragraph (b) that the lawyer communicate fees, scope and expenses in writing
  • added a requirement that any changes in the basis or rate of the fee or expenses shall be in writing
  • amended paragraph (c) to clarify that contingent fee agreements must be signed by the client and must include notification regarding expenses
  • amended paragraph (e) to permit division of fees with client agreement
  • expanded the Comment to address reasonableness of fees and expenses generally, reasonableness of contingent fees and prohibited contingent fees
  • modified the Comment to reflect the changes in the Rule

Rule 1.6 CONFIDENTIALITY OF INFORMATION

  • replaced "consents after consultation" with "informed consent"
  • modified paragraph (b)(1) to permit disclosure of information related to the representation to prevent "reasonably certain" death or substantial bodily harm
  • added paragraph (b)(2), which permits disclosure of information related to the representation to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services
  • added paragraph (b)(3), which permits disclosure of information related to the representation to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services
  • added paragraph (b)(4), which permits disclosure of information related to the representation to secure legal advice about the lawyer’s compliance with the Rules
  • added paragraph (b)(5), which permits disclosure of information related to the representation to comply with other law or a court order
  • reorganized and substantially revised the Comment to provide better guidance and to reflect the changes in the Rule

Rule 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS

  • changed title from "Conflict of Interest: General Rule"
  • reorganized current Rule 1.7 to clarify the Rule and to better educate lawyers regarding the complex subject of conflict of interest
  • created a single paragraph defining "conflict of interest" and a single paragraph on consentability and informed consent
  • replaced "consent after consultation" with "informed consent" and added a requirement that informed consent be confirmed in writing
  • substantially revised the Comment to provide better guidance to lawyers

Rule 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES

  • changed title from "Conflict of Interest: Prohibited Transactions"
  • added a requirement in paragraph (a) that clients be advised in writing of the desirability of seeking the advice of independent legal counsel before entering into a business transaction with a lawyer
  • added a requirement in paragraph (a) that the client give informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction
  • replaced "consent after consultation" with "informed consent" in paragraph (b)
  • added a prohibition on lawyer solicitation of substantial gifts and changed the definition of relationships that fall within the exception for lawyers related to the client or the donee in paragraph (c)
  • replaced "consent after consultation" with "informed consent" in paragraph (f)
  • replaced "consent after consultation" with "informed consent" in paragraph (g) and added a requirement that the informed consent be in a writing signed by the client
  • split paragraph (h) into two parts: deleted the reference to "permitted by law" in paragraph (h)(1) because the phrase has no significant role in addressing these conflicts; added reference to "potential claims" in paragraph (h)(2); reworded the advice to obtain independent counsel in paragraph (h)(2) to conform to the language used in paragraph 1.8(a)
  • moved paragraph (i) to Comment [11] of Rule 1.7 where conflicts of interest arising from a lawyer’s family relationships is more appropriately addressed
  • changed "granted" to "authorized" in paragraph (i), previously paragraph (j), to clarify that the exemption applies to all liens authorized by substantive law, including those liens that are contractual in nature
  • added a new Rule prohibiting most client-lawyer sexual relationships
  • added a provision regarding imputation of conflicts in Rule 1.8, treating imputation in Rule 1.8 differently from Rule 1.10
  • made extensive changes to the Comment to address every paragraph in Rule 1.8 and to reflect the changes in the Rule

Rule 1.9 DUTIES TO FORMER CLIENTS

  • changed title from "Conflict of Interest: Former Client"
  • replaced "consent after consultation" with "informed consent" in paragraphs (a) and (b) and added a requirement that the informed consent be confirmed in writing
  • replaced specific reference to Rules 1.6 and 3.3 in paragraph (c) with general reference to the Rules because Rules other than 1.6 and 3.3 may be relevant
  • amended the Comment to clarify the operation of the Rule and to specifically note that Rule 1.11 determines when Rule 1.9 is applicable to government lawyers

Rule 1.10 IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

  • changed the title from "Imputed Disqualification: General Rule"
  • eliminated imputation of conflicts under Rule 2.2, which has been deleted, and Rule 1.8, which now contains a provision addressing imputation
  • eliminated imputation of "personal interest" conflicts
  • added a provision for screening of lateral hires under certain circumstances
  • added a provision clarifying that Rule 1.11 is the exclusive Rule governing the imputation of conflicts of interest of current or former government lawyers
  • moved the definition of "firm" and the Comments relating to the definition of "firm" to the new Rule 1.0 on Terminology
  • expanded the Comment to explain principles of imputed disqualification and to provide guidance regarding screening

Rule 1.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES

  • changed title from "Successive Government and Private Employment"
  • replaced "consent after consultation" with "informed consent" in paragraph (a) and added a requirement that the informed consent be confirmed in writing
  • clarified in paragraph (a) that individual lawyers who have served as public officers or employees are subject to Rule 1.9 regarding their obligations to former clients, except that "matter" is defined in Rule 1.11(e)
  • clarified in paragraph (b) that conflicts under paragraph (a) are not imputed to other associated lawyers when the individual lawyer is properly screened
  • added a scienter requirement in paragraph (b) to parallel Rule 1.10
  • deleted current paragraph (e) and moved the definition of "confidential government information" to paragraph (c)
  • amended paragraph (d) to clarify the relationship between this Rule and Rules 1.9 and 1.10
  • added a provision allowing the government to give its informed consent, confirmed in writing, in paragraph (d)
  • expanded and modified the Comment to reflect the changes in the Rule

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

  • changed caption from "Former Judge or Arbitrator"
  • extended the application of Rule 1.12 to mediators and other third-party neutrals
  • replaced "consent after consultation" with "informed consent" in paragraph (a) and added a requirement that the informed consent be confirmed in writing
  • expanded the Comment to explain the applicability of the Rule to third-party neutrals and to elaborate on the requirements for screening

Rule .113 ORGANIZATION AS CLIENT

  • clarified the scienter requirement in paragraph (d)
  • modified Comment [6] to more accurately reflect prevailing law regarding the identity of a government client

Rule 1.14 CLIENT WITH DIMINISHED CAPACITY

  • changed title from "Client Under a Disability"
  • changed terminology to reflect the change of focus of the Rule to the continuum of a client’s capacity
  • added guidance in paragraph (b) regarding protective measures a lawyer may take short of requesting a guardian and clarified when it is appropriate to take such action
  • substantially amended the Comment to reflect the changes in the Rule

Rule 1.15 SAFEKEEPING PROPERTY

  • added a provision to permit a lawyer to deposit funds in a client trust account in order to minimize bank changes
  • expanded paragraph (d) to cover property in which two or more persons claim interests
  • amended the Comment to reflect the changes in the Rule

Rule 1.16 DECLINING OR TERMINATING REPRESENTATION

  • clarified that "withdrawal without material adverse effect on the interest of the client" is one of seven situations when a lawyer may withdraw from the representation
  • changed permissive withdrawal in paragraph (b)(4) to situations where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
  • added a reference in paragraph (c) to applicable law requiring notice to or permission of a tribunal when terminating a representation
  • made minor changes to the Comment to reflect the changes in the Rule

Rule 1.17 SALE OF A LAW PRACTICE

  • amended paragraph (b) to permit sale of a practice to one or more lawyers as long as the entire practice is sold
  • deleted provision that permitted the purchaser to refuse to undertake the representation unless the client consented to pay the purchaser’s customary fees
  • made minor changes to the Comment to reflect the changes in the Rule

Rule 1.18 DUTIES TO PROSPECTIVE CLIENTS

  • created a new Rule outlining duties to prospective clients
  • paragraph (a) defines "prospective client"
  • paragraph (b) identities the duty of confidentiality owed prospective clients
  • paragraph (c) prohibits later representation adverse to the prospective client
  • paragraph (d) permits representation with the consent of the client, confirmed in writing; or if the lawyer who received any "significantly harmful" information is screened
  • new Comment explains the operation of the Rule

Rule 2.1 ADVISOR

  • no change to the black-letter Rule
  • amended Comment [5] to remind lawyers that informing a client of various forms of dispute resolution may be required under Rule 1.4

Rule 2.2 INTERMEDIARY

  • deleted this Rule and moved discussion of common representations to the Comment of Rule 1.7

Rule 2.3 EVALUATION FOR USE BY THIRD PARTIES

  • restructured the Rule to clarify its application in situations where the evaluation poses no significant risk to the client and in situations where there is a significant risk of material and adverse effect on the client’s interest
  • replaced "consents after consultation" with "informed consent" in paragraph (b)
  • expanded the Comment to address informed consent; added a cross-reference to Rule 4.1 regarding truthfulness in statements to others

Rule 2.4 LAWYER SERVING AS THIRD-PARTY NEUTRAL

  • created a new Rule on the lawyer’s role as third-party neutral
  • paragraph (a) defines "third-party neutral"
  • paragraph (b) requires the lawyer to inform unrepresented parties of the lawyer’s role
  • new Comment explains the operation of the Rule

Rule 3.1 MERITORIOUS CLAIMS AND CONTENTIONS

  • replaced "good faith" with "nonfrivolous" to adopt an objective standard
  • clarified that a nonfrivolous argument must have a basis in both law and fact
  • two new Comments address criminal defendants
  • modified Comment [2] to conform to changes in the Rule

Rule 3.2 EXPEDITING LITIGATION

  • no changes

Rule 3.3 CANDOR TOWARD THE TRIBUNAL

  • revised and reorganized this Rule to clarify a lawyer’s obligation of candor to the tribunal with respect to testimony given and actions taken by the client and other witnesses
  • amplified in paragraph (a) the lawyer’s duty not to make false statements to a tribunal and added obligation to correct false statements previously made
  • deleted paragraph (a)(2) regarding disclosure where necessary to avoid assisting client crime or fraud because that subject in now addressed in paragraph (b)
  • added a new paragraph (b) addressing the lawyer’s duty to preserve the integrity of the adjudicative process
  • added an exclusion in paragraph (a)(3) for the testimony of a defendant in a criminal matter
  • clarified in paragraph (a)(3) that the lawyer must take remedial measures where the lawyer comes to know that material evidence offered by the client or a witness called by the lawyer is false
  • reorganized and expanded the Comment to address some recurring situations not directly addressed in the Rule and to provide guidance regarding the operation of the Rule

Rule 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

  • no change to black-letter Rule
  • amended Comment [2] to alert lawyers to the law governing possession of physical evidence of client crimes

Rule 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL

  • created a new paragraph (c) covering post-discharge communication with jurors
  • limited paragraph (b) to communication during the proceeding
  • expanded the Comment to reflect the changes in the Rule

Rule 3.6 TRIAL PUBLICITY

  • conformed the scienter requirement to be consistent with the terminology in Rule 1.0
  • replaced "reasonable person" with "reasonable lawyer"
  • added a reference to Rule 3.8(f) regarding additional duties of prosecutors in connection with extrajudicial statements about criminal proceedings

Rule 3.7 LAWYER AS WITNESS

  • minor editing change in black-letter Rule
  • clarified in Comment that the prohibition in paragraph (a) is for the protection of the tribunal as well as the parties
  • expanded the Comment to address conflicts of interest and vicarious disqualification

Rule 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

  • incorporated current paragraph (e) into paragraph (f)
  • expanded Comment to elaborate on the rationale for the Rule

Rule 3.9 ADVOCATE IN NONADJUDICATIVE PROCEEDINGS

  • deleted the word "tribunal" to avoid confusion
  • expanded the Comment to explain the operation of the Rule

Rule 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

  • no change to the black-letter Rule
  • expanded the Comment to address misrepresentation through omissions or partially true but misleading statements and remedial measures a lawyer may be required to take to avoid assisting client crime or fraud

Rule 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

  • added reference to "court order"
  • expanded the Comment to explain the operation of the Rule and to reflect the change in the Rule; modified the explanation of the operation of the Rule with respect to a represented organization

Rule 4.3 DEALING WITH UNREPRESENTED PERSON

  • added prohibition (using language from Model Code) on giving legal advice to an unrepresented person if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client
  • expanded the Comment to reflect the changes in the Rule

Rule 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS

  • added a new paragraph regarding obligations of a lawyer upon receipt of an inadvertently sent document
  • expanded the Comment to explain the new paragraph

Rule 5.1 RESPONSIBILITIES OF PARTNERS, SUPERVISORY LAWYERS AND LAW FIRMS

  • changed title from "Responsibilities of a Partner or Supervisory Lawyer"
  • added lawyers who possess managerial authority to those responsible under this Rule
  • added law firm responsibility
  • expanded the Comment to address law firm responsibility and the responsibility to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct

Rule 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER

  • no changes

Rule 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

  • added lawyers who possess managerial authority to those responsible under this Rule
  • added law firm responsibility
  • expanded the Comment explaining the changes in the Rule

Rule 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER

  • added a provision regarding sharing of court-awarded fees with a nonprofit organization
  • expanded the Comment to discuss limits on third-party direction

Rule 5.5 UNAUTHORIZED PRACTICE OF LAW

  • added a new paragraph (b), which describes four "safe harbors" for lawyers rendering legal services in jurisdictions where they are not admitted to practice
  • clarified that paragraph (c) applies to assisting lawyers not admitted to practice in this jurisdiction
  • expanded the Comment to explain the operation of new paragraph (b)

Rule 5.6 RESTRICTIONS ON RIGHT TO PRACTICE

  • no changes to black-letter Rule
  • minor edit in the Comment

Rule 5.7 RESPONSIBILITIES REGARDING LAW-RELATED SERVICES

  • no changes to black-letter Rule
  • minor edit in the Comment

Rule 6.1 VOLUNTARY PRO BONO PUBLICO SERVICE

  • added new first sentence regarding the professional responsibility of every lawyer to provide legal services to those unable to pay
  • added a new Comment calling upon law firms to act reasonably to enable lawyers in the firm to provide pro bono services

Rule 6.2 ACCEPTING APPOINTMENTS

  • no changes

Rule 6.3 MEMBERSHIP IN LEGAL SERVICE ORGANIZATION

  • no changes

Rule 6.4 LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS

  • no changes

Rule 6.5 NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICE PROGRAMS

  • created a new Rule relaxing the conflict of interest and imputation rules in situations where a lawyer, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation that the lawyer will provide continuing representation in the matter
  • new Comment explains the operation of the Rule

Rule 7.1 COMMUNICATION CONCERNING A LAWYER’S SERVICES

  • deleted paragraphs (b) and (c) as overly broad, limiting Rule 7.1 to a prohibition against false and misleading communications
  • moved a portion of paragraph (b) to Rule 8.4 because the prohibition against stating or implying that the lawyer can achieve results by means the violate the Rules is applicable beyond advertising
  • expanded the Comment to explain circumstances under which statements raising unjustified expectations and making unsubstantiated comparisons may be false or misleading

Rule 7.2 ADVERTISING

  • deleted specification of types of public media in paragraph (a) and added a reference to electronic communication
  • deleted the requirement of retaining copies of all advertisements for two years
  • modified paragraph (c) to permit identification of a law firm as the entity responsible for an advertisement
  • modified the Comment to more accurately reflect the current state of client development activities in law firms

Rule 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENT

  • extended prohibition to "real-time electronic contact"
  • exempted contact with lawyers and with person with whom the lawyer has a close personal relationship
  • added reference to electronic communication
  • modified the Comment to reflect the changes in the Rule

Rule 7.4 COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION

  • title changed from "Communication of Fields of Practice"
  • restructured Rule to separate the two subjects addressed: communication of fields of law in which the lawyer practices, as permitted in paragraph (a), and communication of fields of law in which the lawyer claims to be certified as a specialist, covered in paragraph (d)
  • eliminated the provision that permits lawyers to claim certification as a specialist even though the certifying organization is not approved by an appropriate state authority or accredited by the ABA
  • modified the Comment to reflect the changes in the Rule

Rule 7.5 FIRM NAMES AND LETTERHEADS

  • added reference to "other professional designation" in Rule and Comment

Rule 7.6 POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT LEGAL ENGAGEMENTS OR APPOINTMENTS BY JUDGES

  • no changes

Rule 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS

  • no change in the black-letter Rule
  • modified Comment [1] to clarify the obligation to correct any prior misstatements

Rule 8.2 JUDICIAL AND LEGAL OFFICERS

  • no changes

Rule 8.3 REPORTING PROFESSIONAL MISCONDUCT

  • modified scienter requirement to conform to new Rule 1.0 on Terminology
  • replaced references to the attorney-client privilege in paragraph (c) and in Comment [5] with references to information related to the representation

Rule 8.4 MISCONDUCT

  • added material in paragraph (e) that was deleted from Rule 7.1
  • added a new Comment [1] to distinguish a violation of the Rules through the acts of another from legally advising a client concerning actions the client is lawfully entitled to take

Rule 8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW

  • expanded disciplinary enforcement jurisdiction over a lawyer not admitted in the jurisdiction if the lawyer renders or offers to render any legal services in the jurisdiction
  • changed "court" to "tribunal" in paragraph (b)
  • created new choice of law provision
  • amended the Comment to explain the changes in the Rule

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