Rule 8. Rules of Professional Conduct. — The
ethical standards relating to the practice of law and to the administration of
law in the courts of this State shall be as hereinafter set out. [Effective
March 1, 2003]
PREAMBLE
[1] A lawyer is an expert in law pursuing a learned art in service
to clients and in the spirit of public service and engaging in these pursuits
as part of a common calling to promote justice and public good. Essential
characteristics of the lawyer are knowledge of the law, skill in applying the
applicable law to the factual context, thoroughness of preparation, practical
and prudential wisdom, ethical conduct and integrity, and dedication to justice
and the public good.
[2] A lawyer is a representative of clients, an officer of the legal
system, and a public citizen having special responsibility for the quality of
justice.
[3] As a representative of clients, a lawyer performs various
functions. As an advisor, a lawyer provides a client with an informed
understanding of the client’s legal rights and obligations and explains their
practical implications. As an advocate, a lawyer zealously asserts the client’s
position under the rules of the adversary system. As a negotiator, a lawyer
seeks a result advantageous to the client but consistent with requirements of
honest dealing with others. As an intermediary between clients, a lawyer seeks
to reconcile their divergent interests as an advisor and, to a limited extent,
as a spokesperson for each client. A lawyer acts as an evaluator by examining a
client’s legal affairs and reporting about them to the client or to others.
[4] In all professional functions a lawyer should be competent,
prompt and diligent. A lawyer should maintain communication with a client
concerning the representation. A lawyer should keep in confidence information
relating to representation of a client except so far as disclosure is required
or permitted by the Rules of Professional Conduct or other law.
[5] A lawyer’s conduct should conform to the requirements of the
law, both in professional service to clients and in the lawyer’s business and
personal affairs. A lawyer should use the law’s procedures only for legitimate
purposes and not to harass or intimidate others. A lawyer should demonstrate
respect for the legal system and for those who serve it, including judges,
other lawyers, and public officials. While it is a lawyer’s duty, when
necessary, to challenge the rectitude of official action, it is also a lawyer’s
duty to uphold legal process.
[6] As a public citizen, a lawyer should seek improvement of the
law, in the administration of justice, and in the quality of service rendered
by the legal profession. As a member of a learned profession, a lawyer should
cultivate knowledge of the law beyond its use for clients, employ that
knowledge in reform of the law, and work to strengthen legal education. A
lawyer should be mindful of deficiencies in the administration of justice and
of the fact that the poor, and sometimes persons who are not poor, cannot
afford adequate legal assistance; the lawyer should therefore devote
professional time and civic influence in their behalf. A lawyer should also aid
the legal profession in pursuing these objectives and should help the bar
regulate itself in the public interest.
[7] Many of a lawyer’s professional responsibilities are prescribed
in the Rules of Professional Conduct, as well as in substantive and procedural
law. However, a lawyer is also guided by personal conscience and the
approbation of professional peers. A lawyer should strive to attain the highest
level of skill, to improve the law and the legal profession, and to exemplify
the legal profession’s ideals of public service.
[8] A lawyer’s responsibilities as a representative of clients, an
officer of the legal system, and a public citizen are usually harmonious. Thus,
when an opposing party is well represented, a lawyer can be a zealous advocate
on behalf of a client and at the same time assume that justice is being done.
So also, a lawyer can be sure that preserving client confidences ordinarily
serves the public interest because people are more likely to seek legal advice,
and thereby heed their legal obligations, when they know their communications
will be private.
[9] In the nature of law practice, however, conflicting
responsibilities are encountered. Virtually all difficult ethical problems
arise from conflict between a lawyer’s responsibilities to clients, to the
legal system, and to the lawyer’s own interest in remaining an upright person
while earning a satisfactory living. The Rules of Professional Conduct
prescribe terms for resolving such conflicts. Within the framework of these
Rules many difficult issues of professional discretion can arise. Such issues
must be resolved through the exercise of sensitive professional and moral
judgment guided by the basic principles underlying the Rules.
[10] The legal profession is largely self-governing. Although other
professions also have been granted powers of self-government, the legal
profession is unique in this respect because of the close relationship between
the profession and the processes of government and law enforcement. This
connection is manifested in the fact that ultimate authority over the legal
profession is vested largely in the courts.
[11] To the extent that lawyers meet the obligations of their
professional calling, the occasion for government regulation is obviated.
Self-regulation also helps maintain the legal profession’s independence from
government domination. An independent legal profession is an important force in
preserving government under law, for abuse of legal authority is more readily
challenged by a profession whose members are not dependent on government for
the right to practice.
[12] The legal profession’s relative autonomy carries with it
special responsibilities of self-government. The profession has a
responsibility to assure that its regulations are conceived in the public
interest and not in furtherance of parochial or self-interested concerns of the
bar. Every lawyer is responsible for observing the Rules of Professional
Conduct. A lawyer should also aid in securing their observance by other
lawyers. Neglect of these responsibilities compromises the independence of the
profession and the public interest that it serves.
[13] Lawyers play a vital role in the preservation of society. The
fulfillment of this role requires an understanding by lawyers of their
relationship to our legal system. The Rules of Professional Conduct, when
properly applied, serve to define that relationship.
SCOPE
[1] The Rules of Professional Conduct are rules of reason. They
should be interpreted with reference to the purposes of legal representation
and of the law itself. Some of the Rules are imperatives, cast in the terms
“shall” or “shall not.” These Rules define proper conduct for purposes of
professional discipline. Others, generally cast in the term “may,” are
permissive and define areas under the Rules in which the lawyer has
professional discretion. No disciplinary action should be taken when the lawyer
chooses not to act or acts within the bounds of such discretion. Other Rules
define the nature of relationships between the lawyer and others. The Rules are
thus partly obligatory and disciplinary and partly constitutive and descriptive
in that they define a lawyer’s professional role. Many of the Comments use the
term “should.” Comments do not add obligations to the Rules, but provide either
additional guidance for practicing in compliance with the Rules or make
suggestions about good practice, which lawyers would be well-advised to heed
even though the Rules do not require them to do so.
[2] The Rules presuppose a larger legal context shaping the lawyer’s
role. That context includes court rules and statutes relating to matters of
licensure, laws defining specific obligations of lawyers, and substantive and
procedural law in general. Compliance with the Rules, as with all law in an
open society, depends primarily upon understanding and voluntary compliance,
secondarily upon reinforcement by peer and public opinion, and finally, when
necessary, upon enforcement through disciplinary proceedings. The Rules do not,
however, exhaust the moral and ethical considerations that should inform a
lawyer, for no worthwhile human activity can be completely defined by legal
rules. The Rules simply provide a framework for the ethical practice of law.
[3] Furthermore, for purposes of determining the lawyer’s authority
and responsibility, principles of substantive law external to these Rules
determine whether a client-lawyer relationship exists. Most of the duties
flowing from the client-lawyer relationship attach only after the client has
requested the lawyer to render legal services and the lawyer has agreed to do
so. But there are some duties, such as that of confidentiality under Rule 1.6,
that may attach when the lawyer agrees to consider whether a client-lawyer
relationship shall be established. Whether a client-lawyer relationship exists
for any specific purpose can depend on the circumstances and may be a question
of fact.
[4] Under various legal provisions, including constitutional,
statutory, and common law, the responsibilities of government lawyers may
differ from those of lawyers in private client-lawyer relationships. For
example, in certain circumstances, the Attorney General of Tennessee has
authority on behalf of the government to decide upon settlement or whether to
appeal from an adverse judgment. Also, certain government lawyers under the
supervision of these officers may be authorized to represent several government
agencies, officers, or employees in legal controversies in circumstances where
a private lawyer could not represent multiple private clients. Government
lawyers in Tennessee are also subject to the Open Meetings Act as interpreted
by the Tennessee courts. Further, they may have authority to represent the
“public interest” in circumstances where a private lawyer would not be
authorized to do so. These Rules do not abrogate the powers and
responsibilities of government lawyers as set forth under federal law or under
the Constitution, statutes, or common law of Tennessee. The resolution of any
conflict between these Rules and the responsibilities or authority of
government lawyers under any such legal provisions is a question of law beyond
the scope of these Rules.
[5] Failure to comply with an obligation or prohibition imposed by a
Rule is a basis for invoking the disciplinary process. The Rules presuppose
that disciplinary assessment of a lawyer’s conduct will be made on the basis of
the facts and circumstances as they existed at the time of the conduct in
question and in recognition of the fact that a lawyer often has to act upon
uncertain or incomplete evidence of the situation. Moreover, the Rules
presuppose that whether or not discipline should be imposed for a violation,
and the severity of a sanction, depend on all the circumstances, such as the
willfulness and seriousness of the violation, the presence of extenuating
factors, and whether there have been previous violations.
[6] Violation of a Rule should not give rise to a cause of action,
nor should it create any presumption that a legal duty has been breached. The
Rules are designed to provide guidance to lawyers and to provide a structure
for regulating conduct through disciplinary agencies. They are not designed to
be a basis for civil liability. Furthermore, the purpose of the Rules can be
subverted when they are invoked by opposing parties as procedural weapons. The
fact that a Rule is a just basis for a lawyer’s self-assessment or for
sanctioning a lawyer under the administration of a disciplinary authority does
not imply that an antagonist in a collateral proceeding or transaction has
standing to seek enforcement of the Rule. Accordingly, nothing in the Rules
should be deemed to augment any substantive legal duty of lawyers or the
extra-disciplinary consequences of violating such a duty.
[7] Moreover, these Rules are not intended to govern or affect
judicial application of either the attorney-client or work product privilege.
Those privileges were developed to promote compliance with law and fairness in
litigation. In reliance on the attorney-client privilege, clients are entitled
to expect that communications within the scope of the privilege will be
protected against compelled disclosure. The attorney-client privilege is that
of the client and not of the lawyer. The fact that in exceptional situations
the lawyer under the Rules has a limited discretion to disclose a client
confidence does not vitiate the proposition that, as a general matter, the
client has a reasonable expectation that information relating to the client
will not be voluntarily disclosed and that disclosure of such information may
be judicially compelled only in accordance with recognized exceptions to the
attorney-client and work product privileges.
[8] The lawyer’s exercise of discretion not to disclose information
when permitted to do so by Rule 1.6 should not be subject to reexamination.
Permitting such reexamination would be incompatible with the general policy of
promoting compliance with law through assurances that communications will be
protected against disclosure.
[9] The Comment accompanying each Rule explains and illustrates the
meaning and purpose of the Rule. The Preamble and this note on Scope provide
general orientation. The Comments are intended either as guides to
interpretation or as suggestions of good practice, but the text of each Rule is
authoritative.
[10] Standard Citation Format: Citations to each Rule of
Professional Conduct (“RPC”) shall be in the following format: Tenn. Sup. Ct.
R. 8, RPC .
ANALYSIS
Chapter 1. The Client-Lawyer Relationship
Rule 1.0 — Definitions
Rule 1.1 — Competence
Rule 1.2 — Scope of the Representation and the Allocation of
Authority Between the Lawyer and Client
Rule 1.3 — Diligence
Rule 1.4 — Communication
Rule 1.5 — Fees
Rule 1.6 — Confidentiality
Rule 1.7 — Conflict of Interest: General Rule
Rule 1.8 — Conflict of Interest: Prohibited Transactions
Rule 1.9 — Conflict of Interest: Former Client
Rule 1.10 — Imputed Disqualification: General Rule
Rule 1.11 — Successive Government and Private Employment
Rule 1.12 — Former Judge or Arbitrator
Rule 1.13 — Organizational Clients
Rule 1.14 — Client Under a Disability
Rule 1.15 — Safekeeping Property
Rule 1.16 — Declining and Terminating Representation
Rule 1.17 — Sale of a Law Practice
Chapter 2. The Lawyer as Counselor, Intermediary, and Dispute
Resolution Neutral
Rule 2.1 — Advisor
Rule 2.2 — Lawyer Serving as an Intermediary Between Clients
Rule 2.3 — Evaluation for Use by Third Persons
Rule 2.4 — Lawyer as a Dispute Resolution Neutral
Chapter 3. Advocate
Rule 3.1 — Meritorious Claims and Contentions
Rule 3.2 — Expediting Litigation
Rule 3.3 — Candor Toward the Tribunal
Rule 3.4 — Fairness to the Opposing Party and Counsel
Rule 3.5 — Impartiality and Decorum of the Tribunal
Rule 3.6 — Trial Publicity
Rule 3.7 — Lawyer as a Witness
Rule 3.8 — Special Responsibilities of a Prosecutor
Rule 3.9 — Advocate in Non-Adjudicative Proceedings
Chapter 4. Transactions With Persons Other Than Clients
Rule 4.1 — Truthfulness and Candor in Statements to Others
Rule 4.2 — Communication With a Person Represented by Counsel
Rule 4.3 — Dealing with an Unrepresented Person
Rule 4.4 — Respect for the Rights of Third Persons
Chapter 5. Law Firms, Legal Departments, and Legal Service
Organizations
Rule 5.1 — Responsibilities of a Partner, Managing Lawyer, or
Supervisory Lawyer
Rule 5.2 — Responsibilities of a Subordinate Lawyer
Rule 5.3 — Responsibilities Regarding Nonlawyer Assistants
Rule 5.4 — Professional Independence of a Lawyer
Rule 5.5 — Unauthorized Practice of Law
Rule 5.6 — Restrictions on the Right to Practice
Rule 5.7 — Responsibilities Regarding Law-Related Services
Chapter 6. Public Service
Rule 6.1 — Pro Bono Publico Representation
Rule 6.2 — Accepting Court Appointments
Rule 6.3 — Membership in Legal Services Organization
Rule 6.4 — Law Reform Activities Affecting Client Interests
Chapter 7. Information About Legal Services
Rule 7.1 — Communications Concerning a Lawyer’s Services
Rule 7.2 — Advertising and Other Communications Not Directed to
Specifically Identified Recipients
Rule 7.3 — Solicitation and Other Communications Directed to
Specifically Identified Recipients
Rule 7.4 — Communication of Fields of Practice
Rule 7.5 — Firm Names and Letterheads
Rule 7.6 — Intermediary Organizations
Chapter 8. Maintaining the Integrity of the Profession
Rule 8.1 — Bar Admission and Disciplinary Matters
Rule 8.2 — Judicial and Legal Officials
Rule 8.3 — Reporting Professional Misconduct
Rule 8.4 — Misconduct
Rule 8.5 — Disciplinary Authority; Choice of Law
Transition Rules Governing the Implementation of the Tennessee Rules
of Professional Conduct
CHAPTER 1
THE CLIENT-LAWYER RELATIONSHIP
Rule 1.0
DEFINITIONS
(a) “Belief” or “Believes” denotes that the person involved actually
supposed the fact in question to be true. A person’s belief may be inferred
from circumstances.
(b) “Consents in Writing” or “Written Consent” denotes either (i) a
written consent executed by a client, or (ii) oral consent given by a client
which the lawyer confirms in writing in a manner which can be easily understood
by the client and which is promptly transmitted to the client by means
reasonably calculated to reach the client.
(c) “Consult” or “Consultation” denotes communication of information
reasonably sufficient to permit the client to appreciate the significance of
the matter in question.
(d) “Firm” or “Law Firm” denotes a lawyer or lawyers in a private
firm, lawyers employed in the legal department of a corporation, government
agency, or other organization and lawyers employed in a legal services
organization. See also Comment [1] of RPC 1.10.
(e) “Fraud” or “Fraudulent” denotes an intentionally false or
misleading statement of material fact, an intentional omission from a statement
of fact of such additional information as would be necessary to make the
statements made not materially misleading, and such other conduct by a person
intended to deceive a person or tribunal with respect to a material issue in a
proceeding or other matter.
(f) “Knowingly,” “Known,” or “Knows” denotes actual awareness of the
fact in question. A person’s knowledge may be inferred from circumstances.
(g) “Material” or “Materially” denotes something that a reasonable
person would consider important in assessing or determining how to act in a
matter.
(h) “Partner” denotes a partner in a law firm organized as a
partnership or professional limited liability partnership, a shareholder in a
law firm organized as a professional corporation, a member in a law firm
organized as a professional limited liability company, or a sole practitioner
who employs other lawyers or nonlawyers in connection with his or her practice.
(i) “Reasonable,” “Reasonably,” or “Reasonableness” when used in
relation to conduct by a lawyer denotes the conduct of a reasonably prudent and
competent lawyer.
(j) “Reasonable Belief’” or “Reasonably Believes” when used in
reference to a lawyer denotes that the lawyer believes the matter in question
and that the circumstances are such that the belief is reasonable.
(k) “Reasonably Should Know” when used in reference to a lawyer
denotes that a lawyer of reasonable prudence and competence would ascertain the
matter in question.
(l) “Substantial” or “Substantially” denotes something that
is not only material but also of clear and weighty importance.
(m) “Tribunal” denotes a court or other adjudicative body.
(n) “Unreasonably” when used in relation to conduct by a lawyer
denotes conduct contrary to that of a reasonably prudent and competent lawyer.
COMMENT
In circumstances in which these rules require either consent in
writing or written consent, the requirement may be satisfied by an electronic
transmission that is reasonably calculated to reach the client, provided that
the transmission can be reduced to writing or permanently retained in
electronic format.
Rule 1.1
COMPETENCE
A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation.
COMMENTS
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge
and skill in a particular matter, relevant factors include the relative
complexity and specialized nature of the matter, the lawyer’s general
experience, the lawyer’s training and experience in the field in question, the
preparation and study the lawyer is able to give the matter, and whether it is
feasible to refer the matter to, or associate or consult with, a lawyer of
established competence in the field in question. In many instances, the
required proficiency is that of a general practitioner. Expertise in a
particular field of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior
experience to handle legal problems of a type with which the lawyer is
unfamiliar. A newly admitted lawyer can be as competent as a practitioner with
long experience. Some important legal skills, such as the analysis of
precedent, the evaluation of evidence, and legal drafting, are required in all
legal problems. Perhaps the most fundamental legal skill consists of
determining what kind of legal problems a situation may involve, a skill that
necessarily transcends any particular specialized knowledge. A lawyer can
provide adequate representation in a wholly novel field through necessary
study. Competent representation can also be provided through the association of
a lawyer of established competence in the field in question.
[3] In a situation in which a client is threatened with imminent and
irreparable harm, a lawyer may give advice or assistance in a matter in which
the lawyer does not have the skill ordinarily required where referral to, or
consultation or association with, another lawyer would be impractical. Even in
such a situation, however, assistance should be limited to that reasonably
necessary in the circumstances, for ill-considered action can jeopardize the
client’s interest.
[4] A lawyer may accept representation where the requisite level of
competence can be achieved by reasonable preparation. This principle applies as
well to a lawyer who is appointed as counsel for an unrepresented person. See
also RPC 6.2.
Thoroughness and Preparation
[5] Competent handling of a particular matter includes inquiry into
and analysis of the factual and legal elements of the problem, and the use of
methods and procedures meeting the standards of competent practitioners. It
also includes adequate preparation. The required attention and preparation are
determined in part by what is at stake; major litigation and complex
transactions ordinarily require more elaborate treatment than matters of lesser
consequence.
Maintaining Competence
[6] To maintain the requisite knowledge and skill, a lawyer should
engage in regular continuing study and education that is pertinent to the
lawyer’s practice and should conscientiously satisfy all requirements for
continuing legal education in all jurisdictions in which the lawyer is licensed
to practice law. If a system of peer review has been established, the lawyer
should consider making use of it in appropriate circumstances.
DEFINITIONAL CROSS-REFERENCES
“Reasonably” See RPC 1.0(i)
Rule 1.2
SCOPE OF THE REPRESENTATION AND THE ALLOCATION OF
AUTHORITY BETWEEN THE LAWYER AND CLIENT
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a
client’s decisions concerning the objectives of the representation and may take
such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client’s decision whether to settle a
matter. In a criminal case, the lawyer shall abide by the client’s decision as
to a plea to be entered, whether to waive jury trial, and whether the client
will testify.
(b) A lawyer’s representation of a client, including representation
by appointment, does not constitute an endorsement of the client’s political,
economic, social, or moral views or activities.
(c) A lawyer may limit the scope of a client’s representation if the
limitation is reasonable under the circumstances and the client gives consent,
preferably in writing, after consultation.
(d) A lawyer shall not counsel a client to engage, or assist a
client, in conduct that the lawyer knows or reasonably should know is criminal
or fraudulent, but a lawyer may discuss the legal consequences of any proposed
course of conduct with a client and may counsel or assist a client to make a
good faith effort to determine the validity, scope, meaning, or application of
the law.
COMMENTS
Allocation of Authority Between Client and Lawyer
[1] Both lawyer and client have authority and responsibility in the
objectives and means of the representation. The client has ultimate authority
to determine the purposes to be served by legal representation, within the
limits imposed by law and the lawyer’s professional obligations. Also, the
decisions specified in paragraph (a), such as whether to settle a civil matter,
must be made by the client. Other decisions may be made by the lawyer pursuant
to the lawyer’s implied authority to take action necessary to carry out the
representation, subject to the lawyer’s duty to keep the client reasonably
informed about the status of the representation. See RPC 1.4. A
clear distinction between objectives and means sometimes cannot be drawn, and
in many cases the client-lawyer relationship partakes of a joint undertaking.
In questions of means, for example, the lawyer normally will assume
responsibility for technical and legal tactical issues, but the lawyer usually
will defer to the client regarding such questions as the expense to be incurred
and concern for third persons who might be adversely affected. Law defining the
lawyer’s scope of authority in litigation varies among jurisdictions.
[2] Paragraph (a) recognizes that clients normally defer to the
special knowledge and skill of their lawyer. At the same time, a lawyer is not
required to pursue objectives or employ means simply because a client may
instruct the lawyer do so. Although a lawyer, as an agent, normally must abide
by the client’s instructions with respect to the representation, a lawyer may
always refuse to engage in conduct that the lawyer reasonably believes to be
unlawful or prohibited by the Rules of Professional Conduct and may take action
that the lawyer reasonably believes to be required by law or the Rules of
Professional Conduct. Also, if a lawyer has a fundamental disagreement with the
client about the client’s objectives or the means to be used to accomplish
them, the lawyer may withdraw from the representation. See RPC 1.16.
[3] Communication between the lawyer and the client is necessary for
the client to effectively participate in decisions relating to client’s
representation. The lawyer must, therefore, keep the client reasonably informed
about the lawyer’s actions on behalf of the client. See RPC 1.4.
[4] At the outset of a representation, the client may authorize the
lawyer to take action on the client’s behalf without further consultation.
Ordinarily, a lawyer may rely on such an advance authorization. The client may,
however, revoke such authority at any time, and a lawyer may not rely on an
advance authorization if there has been such a material change in the
circumstances known to the lawyer that the client’s prior authorization can no
longer be regarded as an adequately informed decision.
[5] In a case in which the client appears to have a mental
disability, the lawyer’s duty to abide by the client’s decisions is to be
guided by reference to Rule 1.14.
Independence From Client’s Views or Activities
[6] Legal representation should not be denied to people who are
unable to afford legal services, or whose cause is controversial or the subject
of popular disapproval. By the same token, representing a client does not
constitute approval of the client’s views or activities.
Agreements Limiting the Scope of the Representation
[7] The scope of services to be provided by a lawyer may be limited
by agreement with the client or by the terms under which the lawyer’s services
are made available to the client. When a lawyer has been retained by an insurer
to represent an insured, for example, the representation may be limited to
matters related to the insurance coverage. A limited representation may be
appropriate because the client has limited objectives for the representation.
In addition, the terms upon which representation is undertaken may exclude
specific means that might otherwise be used to accomplish the client’s
objectives. Such agreements limiting the scope of a representation may preclude
the lawyer from taking actions that the client thinks are too costly or may
permit the lawyer to refrain from taking action that the lawyer regards as
repugnant or imprudent. [Amended by order filed April 29, 2003.]
[8] Although this Rule affords the lawyer and client substantial
latitude to limit the representation, the limitation must be reasonable under
the circumstances. If, for example, a client’s objective is limited to securing
general information about the law the client needs in order to handle a common
and typically uncomplicated legal problem, the lawyer and client may agree that
the lawyer’s services will be limited to a brief telephone consultation. Such a
limitation, however, would not be reasonable if the time allotted was not
sufficient to yield advice upon which the client could rely. Although an
agreement for a limited representation does not exempt a lawyer from the duty
to provide competent representation, the limitation is a factor to be
considered when determining the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation. See RPC 1.1.
[9] Other agreements concerning a lawyer’s representation of a
client must accord with the Rules of Professional Conduct and other law. See,
e.g., RPCs 1.1, 1.8, and 5.6.
Criminal, Fraudulent, and Prohibited Transactions
[10] Paragraph (d) prohibits a lawyer from counseling or assisting a
client to engage in conduct that the lawyer knows or reasonably should know is
criminal or fraudulent. This prohibition, however, does not preclude the lawyer
from giving an honest opinion about the actual consequences that appear likely
to result from a client’s conduct. Nor does the fact that a client uses advice
in a course of action that is criminal or fraudulent of itself make a lawyer a
party to the course of action. There is a critical distinction between
presenting an analysis of legal aspects of questionable conduct and
recommending the means by which a crime or fraud might be committed with
impunity.
[11] When the client’s course of action has already begun and is
continuing, the lawyer’s responsibility is especially delicate. The lawyer may
be permitted, but is not required, by Rule 1.6 to reveal the client’s
wrongdoing. In any case, however, the lawyer is required to avoid furthering
the purpose, for example, by suggesting how it 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
RPC 1.16(a).
[12] Where the client is a fiduciary, the lawyer may be charged with
special obligations in dealings with a beneficiary.
[13] Paragraph (d) applies whether or not the defrauded party is a
party to the transaction. Hence, a lawyer must not participate in a sham
transaction; for example, a transaction to effectuate criminal or fraudulent
escape of tax liability. Paragraph (d) does not preclude undertaking a criminal
defense incident to a general retainer for legal services to a lawful
enterprise. The last clause of paragraph (d) recognizes that determining the
validity or interpretation of a statute or regulation may require a course of
action involving disobedience of the statute or regulation or of the
interpretation placed upon it by governmental authorities.
[14] If a lawyer comes to know or reasonably should know that a
client expects assistance not permitted by the Rules of Professional Conduct or
other law, or if the lawyer intends to act contrary to the client’s
instructions, the lawyer must consult with the client regarding the limitations
on the lawyer’s conduct. See RPC 1.4.
DEFINITIONAL CROSS-REFERENCES
“Consultation” See RPC 1.0(c)
“Fraudulent” See RPC 1.0(e)
“Knows” See RPC 1.0(f)
“Reasonable” See RPC 1.0(i)
“Reasonably Should Know” See RPC 1.0(k)
Rule 1.3
DILIGENCE
A lawyer shall act with reasonable diligence and promptness in
representing a client.
COMMENTS
[1] A lawyer should pursue a matter on behalf of a client despite
opposition, obstruction, or personal inconvenience to the lawyer and may take
whatever lawful and ethical measures are required to vindicate a client’s cause
or endeavor. A lawyer should act with commitment and dedication to the
interests of the client and with zeal in advocacy upon the client’s behalf.
However, a lawyer is not bound to press for every advantage that might be
realized for a client. Unless instructed by a client to the contrary, a lawyer
has professional discretion in determining the means by which a matter should
be pursued, and the lawyer is not required to abide by unreasonable client
instructions. See RPC 1.2. A lawyer’s work load should be controlled so
that each matter can be handled adequately.
[2] Perhaps no professional shortcoming is more widely resented than
procrastination. A client’s interests often can be adversely affected by the
passage of time or the change of conditions; in extreme instances, as when a
lawyer overlooks a statute of limitations, the client’s legal position may be
destroyed. Even when the client’s interests are not affected in substance,
however, unreasonable delay can cause a client needless anxiety and undermine
confidence in the lawyer’s trustworthiness.
[3] Unless the relationship is terminated as provided in Rule 1.16,
a lawyer should carry through to conclusion all matters undertaken for a
client. If a lawyer’s employment is limited to a specific matter, the
relationship terminates when the matter has been resolved. If a lawyer has
served a client over a substantial period in a variety of matters, the client
sometimes may assume that the lawyer will continue to serve on a continuing
basis unless the lawyer gives notice of withdrawal. Doubt about whether a
client-lawyer relationship still exists should be clarified by the lawyer,
preferably in writing, so that the client will not mistakenly suppose the
lawyer is looking after the client’s affairs when the lawyer has ceased to do
so. For example, if a lawyer has handled a judicial or administrative
proceeding that produced a result adverse to the client but has not been
specifically instructed concerning pursuit of an appeal, the lawyer should
advise the client of the possibility of appeal before relinquishing
responsibility for the matter.
DEFINITIONAL CROSS-REFERENCES
“Reasonable” See RPC 1.0(i)
Rule 1.4
COMMUNICATION
(a) A lawyer shall keep a client reasonably informed about the
status of a matter and comply with reasonable requests for information within a
reasonable time.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representation.
COMMENTS
Keeping the Client Reasonably Informed
[1] Reasonable communication between the lawyer and the client is
necessary for the client to effectively participate in the representation. When
a decision about the representation must be made by the client, the lawyer must
consult with and secure the client’s consent prior to taking action. Thus, a
lawyer who receives from opposing counsel an offer of settlement in a civil
controversy or a proffered plea bargain in a criminal case should promptly
inform the client of its substance, unless prior discussions with the client
have left it clear that the proposal would be unacceptable. With respect to the
decisions for which the client’s prior consent is not required by Rule 1.2, the
lawyer’s responsibility is to keep the client reasonably informed. In some
situations—depending on both the importance of the action under consideration
and the feasibility of consulting with the client—this duty will require
consultation prior to taking the action. In other circumstances, such as during
a trial when an immediate decision must be made, practical exigency may also
require a lawyer to act for a client without prior consultation. In such cases,
and in other situations in which the client has impliedly or expressly
delegated authority to the lawyer to take action without prior consultation,
the lawyer must nonetheless act reasonably to keep the client informed of
actions the lawyer has taken on the client’s behalf.
Explaining Matters
[2] The client should have sufficient information to participate
intelligently in decisions concerning the objectives of the representation and
the means by which they are to be pursued, to the extent the client is willing
and able to do so. For example, a lawyer negotiating on behalf of a client
should provide the client with facts relevant to the matter, inform the client
of communications from another party, and take other reasonable steps that
permit the client to make a decision regarding a serious offer from another
party.
[3] Ordinarily, the information to be provided is that appropriate
for a client who is a comprehending and responsible adult. However, fully
informing the client according to this standard may be impracticable, for
example, where the client is a child or has a mental disability. See RPC
1.14. When the client is an organization or group, it is often impossible or
inappropriate to inform every one of its members about its legal affairs, and
ordinarily, the lawyer should address communications to the appropriate
officials of the organization. See RPC 1.13. Where many routine matters
are involved, a system of limited or occasional reporting may be arranged with
the client. Practical exigency may also require a lawyer to act for a client
without prior consultation.
Withholding Information
[4] In some circumstances, a lawyer may be justified in delaying
transmission of information when the client would be likely to react
imprudently to an immediate communication. Thus, a lawyer might withhold a
psychiatric diagnosis of a client when the examining psychiatrist indicates
that disclosure would harm the client. A lawyer may not withhold information to
serve the lawyer’s own interest or convenience. Rules or court orders governing
litigation may provide that information supplied to a lawyer may not be
disclosed to the client. Rule 3.4(c) directs compliance with such rules or
orders.
DEFINITIONAL CROSS-REFERENCES
“Reasonable” and “Reasonably” See RPC 1.0(i)
Rule 1.5
FEES
(a) A lawyer’s fee and charges for expenses shall be reasonable. The
factors to be considered in determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly;
(2) the likelihood, if apparent to the client, that the acceptance
of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
(8) whether the fee is fixed or contingent;
(9) prior advertisements or statements by the lawyer with respect to
the fees the lawyer charges; and
(10) whether the fee agreement is in writing.
(b) When the lawyer has not regularly represented the client, the
basis or rate of the fee shall be communicated to the client, preferably in
writing, before or within a reasonable time after commencing the
representation.
(c) A fee may be contingent on the outcome of the matter for which
the service is rendered, except in a matter in which a contingent fee is
prohibited by paragraph (d) or other law. A contingent fee agreement shall be
in writing, signed by the client, and shall state the method by which the fee
is to be determined, including the percentage or percentages that shall accrue
to the lawyer in the event of litigation, settlement, trial, or appeal; other
expenses to be deducted from the recovery; and whether such expenses are to be
deducted before or after the contingent fee is calculated. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written
statement stating the outcome of the matter and whether there was a recovery,
and showing the remittance, if any, to the client and the method of its
determination.
(d) A lawyer shall not enter into an arrangement for, charge, or
collect:
(1) any fee in a domestic relations matter, the payment or amount of
which is contingent upon the securing of a divorce or the award of custodial
rights, or upon the amount of alimony or support, or the value of a property
division or settlement, unless the matter relates solely to the collection of
arrearages in alimony or child support or the enforcement of an order dividing
the marital estate and the fee arrangement is disclosed to the court; or
(2) a contingent fee for representing a defendant in a criminal
case.
(e) A division of a fee between lawyers who are not in the same firm
may be made only if:
(1) the division is in proportion to the services performed by each
lawyer or, by written consent of the client, each lawyer assumes joint
responsibility for the representation; and
(2) the client is advised of and does not object to the
participation of all the lawyers involved; and
(3) the total fee is reasonable.
COMMENTS
Basis or Rate of Fee
[1] When the lawyer has regularly represented a client, there
ordinarily will have evolved an understanding concerning the basis or rate of
the fee. In a new client-lawyer relationship, however, an understanding as to
the fee should be promptly established. It is not necessary to recite all the
factors that underlie the basis of the fee, but only those that are directly
involved in its computation. It is sufficient, for example, to state that the
basic rate is an hourly charge or a fixed amount or an estimated amount, or to
identify the factors that may be taken into account in finally fixing the fee.
When developments occur during the representation that render an earlier
estimate substantially inaccurate, a revised estimate should be provided to the
client. A written statement concerning the fee reduces the possibility of
misunderstanding. Furnishing the client with a simple memorandum or a copy of
the lawyer’s customary fee schedule is sufficient if the basis or rate of the
fee is set forth.
Terms of Payment
[2] A lawyer may require advance payment of a fee, but he or she is
obliged to return any unearned portion. See RPC 1.16(d). A lawyer may
accept property in payment for services, such as an ownership interest in an
enterprise, providing this does not involve acquisition of a proprietary
interest in the cause of action or subject matter of the litigation contrary to
Rule 1.8(j). However, a fee paid in property instead of money may be subject to
special scrutiny because it involves questions concerning both the value of the
services and the lawyer’s special knowledge of the value of the property. If
the property belongs to the client, the lawyer will also have to comply with
the requirements of Rule 1.8(a).
[3] An agreement may not be made whose terms might induce the lawyer
improperly to curtail services for the client or perform them in a way contrary
to the client’s interest. For example, a lawyer should not enter into an
agreement whereby services are to be provided only up to a stated amount when
it is foreseeable that more extensive services probably will be required,
unless the situation is adequately explained to the client. Otherwise, the
client might have to bargain for further assistance in the midst of a
proceeding or transaction. However, it is proper to define the extent of
services in light of the client’s ability to pay. A lawyer should not exploit a
fee arrangement based primarily on hourly charges by using wasteful procedures.
When there is doubt whether a contingent fee is consistent with the client’s
best interest, the lawyer should offer the client alternative bases for the fee
and explain their implications. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage.
[4] In some circumstances, other law may regulate the fees and
expenses charged by lawyers. For example, Tennessee law regulates contingent
fees in medical malpractice cases. See Tenn. Code Ann. § 29-26-120
(1980). In these circumstances, charging unlawful fees or expenses may be
considered unreasonable under section (a) of this Rule and may violate Rule 8.4
or other rules. See RPC 8.4(d) (prohibiting conduct prejudicial to the
administration of justice).[Amended by order filed April 29,2003.]
Division of Fee
[5] A division of fee is a single billing to a client covering the
fee of two or more lawyers who are not in the same firm. A division of fee
facilitates association of more than one lawyer in a matter in which neither
alone could serve the client as well, and most often is used when the fee is
contingent and the division is between a referring lawyer and a trial
specialist. Paragraph (e) permits the lawyers to divide a fee on either the
basis of the proportion of services they render or by agreement between the
participating lawyers if all assume responsibility for the representation as a
whole and the client is advised and does not object. It does not require
disclosure to the client of the share that each lawyer is to receive. Joint
responsibility for the representation entails the obligations stated in Rule
5.1 for purposes of the matter involved.
Disputes Over Fees
[6] If a procedure has been established for resolution of fee
disputes, such as an arbitration or mediation procedure established by the bar,
the lawyer should conscientiously consider submitting to it. Law may prescribe
a procedure for determining a lawyer’s fee, for example, in representation of
an executor or administrator, a class or a person entitled to a reasonable fee
as part of the measure of damages. The lawyer entitled to such a fee and a
lawyer representing another party concerned with the fee should comply with the
prescribed procedure.
DEFINITIONAL CROSS-REFERENCES
“Firm” See RPC 1.0(d)
“Reasonable” and “Reasonableness” See RPC 1.0(i)
Rule 1.6
CONFIDENTIALITY
(a) Except as provided below, a lawyer shall not reveal information
relating to the representation of a client unless the client consents after
consultation, except that the lawyer may make such disclosures as are impliedly
authorized by the client in order for the lawyer to carry out the
representation. [Amended by order filed April 29, 2003.]
(b) A lawyer may reveal information relating to the representation
of a client to the extent the lawyer reasonably believes disclosure is
necessary:
(1) to prevent the client or another person from committing a crime,
including a crime that is reasonably certain to result in substantial injury to
the financial interest or property of another, unless disclosure is prohibited
or restricted by RPC 3.3;
(2) to secure legal advice about the lawyer’s compliance with these
Rules; or
(3) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a defense to a
criminal charge or civil claim against the lawyer based upon conduct in which
the client was involved, or to respond to allegations in any proceeding
concerning the lawyer’s representation of the client.
(c) A lawyer shall reveal information relating to the representation
of a client to the extent the lawyer reasonably believes disclosure is
necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to comply with an order of a tribunal requiring disclosure, but
only if ordered to do so by the tribunal after the lawyer has asserted on
behalf of the client all non-frivolous claims that the information sought by
the tribunal is protected against disclosure by the attorney- client privilege
or other applicable law; or
(3) to comply with RPC 3.3, 4.1, or other law.
COMMENTS
[1] This Rule governs the disclosure by a lawyer of information
relating to the representation of a client during the lawyer’s representation
of the client. With respect to the use of such information to the disadvantage
of the client, see RPC 1.8(b). With respect to disclosure and adverse use of
information relating to the representation of a former client, see RPC 1.9(c).
[2] The observance of the ethical obligation of a lawyer to hold
inviolate confidential information of the client not only facilitates the full
development of facts essential to proper representation of the client, but it
also encourages people to seek early legal assistance.
[3] Almost without exception, clients come to lawyers in order to
determine what their rights are and what is, in the maze of laws and
regulations, deemed to be legal and correct. The common law recognizes that the
client’s confidences must be protected from disclosure. Based upon experience,
lawyers know that almost all clients follow the advice given, and the law is
upheld.
[4] A fundamental principle in the client-lawyer relationship is
that the lawyer maintain confidentiality of information relating to the
representation. This contributes to the trust that is the hallmark of the
client-lawyer relationship. The client is thereby encouraged to communicate
fully and frankly with the lawyer even as to embarrassing or legally damaging
subject matter.
[5] The principle of lawyer-client confidentiality is given effect
by related bodies of law, including the attorney-client privilege, the
work-product doctrine, and the rule of confidentiality established in
professional ethics. The attorney-client privilege applies in judicial and
other proceedings in which a lawyer may be called as a witness or otherwise
required to produce evidence concerning a client. The rule of client-lawyer
confidentiality applies in situations other than those where evidence is sought
from the lawyer through compulsion of law. The confidentiality rule, for
example, applies not only to matters communicated in confidence by the client,
but also to all information relating to the representation, whatever its
source. A lawyer may not disclose such information except as authorized or as
required by the Rules of Professional Conduct or other law. See also Scope
Comment [7].
[6] The requirement of maintaining confidentiality of information
relating to representation applies to government lawyers who may disagree with
the policy goals that their representation is designed to advance.
[7] Paragraph (a) prohibits a lawyer from revealing information
relating to the representation of a client. This prohibition also applies to
disclosures by a lawyer that do not in themselves reveal protected information
but could reasonably lead to the discovery of such information by a third
person. A lawyer’s use of hypotheticals to discuss issues relating to the
representation is permissible so long as there is no reasonable likelihood that
the listener will be able to ascertain the identity of the client or the
situation involved.
Authorized Disclosure
[8] A lawyer is impliedly authorized to make disclosures about a
client when appropriate in carrying out the representation, except to the
extent that the client’s instructions or special circumstances limit that
authority. In litigation, for example, a lawyer may disclose information by
admitting a fact that cannot properly be disputed, or in negotiation by making
a disclosure that facilitates a satisfactory conclusion.
[9] Lawyers in a firm may, in the course of the firm’s practice,
disclose to each other information relating to a client of the firm, unless the
client has instructed that particular information be confined to specified
lawyers.
Disclosure Adverse to Client
[10] Although the public interest is usually best served by a strict
rule requiring lawyers to preserve the confidentiality of information relating
to the representation of their clients, the confidentiality rule is subject to
limited exceptions. For example, paragraph (b)(1) enables the lawyer to reveal
information to the extent necessary to prevent the client from committing a
crime. The client can, of course, prevent such disclosure by refraining from
the wrongful conduct. Although Paragraph (b)(1) does not require that the
lawyer reveal the client’s misconduct, the lawyer may not in any way counsel
the client to engage, or assist the client, in conduct that the lawyer knows is
criminal or fraudulent. See RPC 1.2(d); see also RPC 1.16
(respecting the lawyer’s obligation or right to withdraw from the
representation of the client in such circumstances). Where the client is an
organization, the lawyer may be in doubt whether contemplated conduct will
actually be carried out by the organization’s constituents. Where necessary to
guide conduct in connection with this Rule, the lawyer may make inquiry within
the organization as indicated in RPC 1.13(b). RPC 3.3, rather than paragraph
(b)(1) of this Rule governs disclosure of a client’s intention to commit
perjury or other crimes in connection with an adjudicative proceeding.
[11] In addition, paragraph (b)(2) states that a lawyer’s
confidentiality obligations do not preclude a lawyer from securing 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)(2) permits such
disclosure because of the importance of a lawyer’s compliance with the Rules of
Professional Conduct. For the protection of the client, such disclosures may be
made only if they will be protected by the attorney-client privilege.
[12] 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 brought by the lawyer involving the conduct or
representation of a former client, such as when in-house counsel brings suit to
redress his or her discharge from an organizational employer in retaliation for
abiding by, or refusing to violate, a clear expression of public policy in the
Rules of Professional Conduct. See also RPC 1.16 Comment [4]. Other
charges can arise in a civil, criminal, or professional disciplinary 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, such as a person claiming to
have been defrauded by the lawyer and client acting together. The lawyer’s
right to respond under these circumstances arises when an assertion of such
complicity has been made. Paragraph (b)(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, of course, applies where a
proceeding has been commenced. Where practicable and not prejudicial to the
lawyer’s ability to establish the defense, the lawyer should advise the client
of the third party’s assertion and request that the client respond
appropriately. In any event, disclosure should be no greater than the lawyer
reasonably believes is necessary to vindicate innocence, the disclosure should
be made in a manner that limits access to the information to the tribunal or
other persons having a need to know it, and appropriate protective orders or
other arrangements should be sought by the lawyer to the fullest extent
practicable.
[13] A lawyer entitled to a fee is permitted by paragraph (b)(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. As stated above, the lawyer
must make every effort practicable to avoid unnecessary disclosure of
information relating to a representation, to limit disclosure to those having
the need to know it, and to obtain protective orders or make other arrangements
minimizing the risk of disclosure.
[14] Paragraph (b) permits but does not require the disclosure or
use of information relating to a client’s representation to accomplish the
purposes specified in paragraphs (b)(1) through (3). 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 any
other factors that may extenuate the conduct in question. Where practical, the
lawyer should seek to persuade the client to take suitable action. In any case,
a disclosure adverse to the client’s interest should be no greater than the
lawyer reasonably believes necessary to the purpose. A lawyer’s decision not to
take preventive action permitted by paragraph (b) does not violate this Rule.
Disclosure Otherwise Required or Authorized
[15] The Rules of Professional Conduct in various circumstances
permit or require a lawyer to disclose information relating to the
representation. See RPCs 2.2, 2.3, 3.3, and 4.1. In addition to these
provisions, a lawyer may be obligated or permitted by other provisions of law
to give information about a client. Whether another provision of law supersedes
RPC 1.6 is a matter of interpretation beyond the scope of these Rules.
[16] Paragraph (c)(1) recognizes the overriding value of life and
physical integrity and requires disclosure reasonably necessary to prevent
reasonably certain death or substantial bodily harm. Substantial bodily harm
includes life threatening and debilitating illnesses and the consequences of
child sexual abuse. Such injuries are reasonably certain to occur if they will
be suffered imminently or if there is a present and substantial threat that a
person will suffer such injuries at a later date if the lawyer fails to take
action necessary to eliminate the threat. Thus, a lawyer who knows that a
client has accidentally discharged toxic waste into a town’s water supply must
reveal this information to the authorities if there is a present and
substantial risk that a person who drinks the water will contract a
life-threatening or debilitating disease and the lawyer’s disclosure is
necessary to eliminate the threat or reduce the number of victims.
[17] As provided by paragraph (c)(2), a lawyer must also comply with
lawful orders of a tribunal, an administrative or executive agency, or a
legislative body. If a lawyer is called as a witness to give testimony
concerning a client, or is otherwise ordered to reveal information relating to
the client’s representation, the lawyer must, absent authorization from the
client to do otherwise, assert on behalf of the client all non-frivolous claims
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 should consult with the client about the possibility of
appealing the adverse ruling. See RPCs 1.4 and 1.2. Unless an appeal is
taken, the lawyer must comply with the order.
Acting Competently to Preserve Confidentiality
[18] A lawyer must act competently to safeguard information relating
to the representation of a client against inadvertent or unauthorized
disclosure by the lawyer or by other persons who are participating in the
representation of the client or who are subject to the lawyer’s supervision. See
RPCs 1.1, 5.1, and 5.3.
[19] When transmitting a communication that includes information
relating to the representation of a client, the lawyer must take reasonable
precautions to prevent the information from coming into the hands of unintended
recipients. This duty, however, does not require that the lawyer utilize
special security measures if the method of communication affords a reasonable
expectation of privacy. Special circumstances, however, may warrant special
precautions. Factors to be considered in determining the reasonableness of the
lawyer’s expectation of confidentiality include the sensitivity of the
information and the extent to which the privacy of the communication is
protected by law or by a confidentiality agreement. A client may require the
lawyer to implement special security measures not required by this Rule or may
give informed consent to the use of a means of communication that would
otherwise be prohibited by this Rule.
Former Clients
[20] The duty of confidentiality continues after the client-lawyer
relationship has been terminated. See RPC 1.9(c).
DEFINITIONAL CROSS-REFERENCES
“Consultation” See RPC 1.0(c)
“Fraud” See RPC 1.0(e)
“Reasonably” See RPC 1.0(i)
“Reasonably Believes” See RPC 1.0(j)
“Substantial” See RPC 1.0(l)
“Tribunal” See RPC 1.0(m)
Rule 1.7
CONFLICT OF INTEREST: GENERAL RULE
(a) A lawyer shall not represent a client if the representation of
that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not
adversely affect the relationship with the other client; and
(2) each client consents in writing after consultation.
(b) A lawyer shall not represent a client if the representation of
that client may be materially limited by the lawyer’s responsibilities to
another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents in writing after consultation. When
representation of multiple clients in a single matter is undertaken, the
consultation shall include explanation of the implications of the common
representation and the advantages and risks involved.
(c) A lawyer shall not represent more than one client in the same
criminal case, unless
(1) the lawyer demonstrates to the tribunal that good cause exists
to believe that no conflict of interest prohibited under this Rule presently
exists or is likely to exist; and
(2) each client consents in writing after consultation concerning
the implications of the common representation, along with the advantages and
risks involved.
COMMENTS
Loyalty to a Client
[1] Loyalty is an essential element in the lawyer’s relationship to
a client. An impermissible conflict of interest may exist before representation
is undertaken, in which event the representation should be declined. The lawyer
should adopt reasonable procedures, appropriate for the size and type of firm
and practice, to determine in both litigation and non-litigation matters the
parties and issues involved and to determine whether actual or potential
conflicts of interest exist.
[2] If such a conflict arises after representation has been
undertaken, the lawyer should withdraw from the representation. See RPC
1.16. Where more than one client is involved and the lawyer withdraws because a
conflict arises after representation, whether the lawyer may continue to
represent any of the clients is determined by RPC 1.9. As to whether a
client-lawyer relationship exists or, having once been established, is
continuing, see the Comment to RPC 1.3 and the statement in the Preamble about
the Scope of these Rules.
[3] As a general proposition, loyalty to a client prohibits
undertaking representation directly adverse to that client without that
client’s consent. Paragraph (a) expresses that general rule. Thus, a lawyer
ordinarily may not act as an advocate against a person the lawyer represents in
some other matter, even if it is wholly unrelated. On the other hand,
simultaneous representation in unrelated matters of clients whose interests are
only generally adverse, such as competing economic enterprises, does not
require consent of the respective clients. Paragraph (a) applies only when the
representation of one client would be directly adverse to the other.
[4] Loyalty to a client is also impaired when a lawyer cannot
consider, recommend, or carry out an appropriate course of action for the
client because of the lawyer’s other responsibilities or interests. The
conflict in effect forecloses alternatives that would otherwise be available to
the client. Paragraph (b) addresses such situations. A possible conflict does
not itself preclude the representation. The critical questions are the
likelihood that a conflict will eventuate and, if it does, whether it will
materially interfere with the lawyer’s independent professional judgment in
considering alternatives or otherwise foreclose courses of action that
reasonably should be pursued on behalf of the client. Consideration should be
given to whether the client wishes to accommodate the other interest involved.
Consultation and Consent
[5] A client may consent to representation notwithstanding a
conflict. However, as indicated in paragraph (a)(1) with respect to
representation directly adverse to a client, and paragraph (b)(1) with respect
to material limitations on representation of a client, when a disinterested
lawyer would conclude that the client should not agree to the representation
under the circumstances, the lawyer involved cannot properly ask for such an
agreement or provide representation on the basis of the client’s consent. When
more than one client is involved, the question of conflict must be resolved as
to each client. Moreover, there may be circumstances where it is impossible to
make the disclosure necessary to obtain consent. For example, when the lawyer
represents different clients in related matters and one of the clients refuses
to consent to the disclosure necessary to permit the other client to make an
informed decision, the lawyer cannot properly ask the latter to consent.
[6] In the absence of other law to the contrary, a government
official or entity, like any other client, may waive a conflict of interest
under this Rule.
[7] This Rule requires the lawyer either to secure a written consent
executed by the client or to memorialize an oral consent given by the client. See
RPC 1.0(b) Definitions (defining “Consents in Writing”). If it is not feasible
to secure or memorialize the writing either at the time the conflict arises or
at the time the client gives consent, then the lawyer must secure or
memorialize it within a reasonable time thereafter. The requirement of a
writing does not supplant the need in most cases for the lawyer to talk with
the client, to explain the risks and advantages, if any, of representation
burdened by a conflict of interest, to explain the reasonably available
alternatives, and to afford the client an opportunity to raise questions and
concerns. Rather, the writing is required in order to impress upon clients the
seriousness of the decision they are being asked to make and to resolve
disputes or ambiguities that might later occur by virtue of there being no
writing. The writing need not take any particular form; it should, however,
include disclosure of the relevant circumstances and reasonably foreseeable
risks of the conflict of interest, as well as memorialization of the client’s
agreement to the representation despite such risks.
Lawyer’s Interests
[8] The lawyer’s own interests should not be permitted to have an
adverse effect on the representation of a client. For example, a lawyer’s need
for income should not lead the lawyer to undertake matters that cannot be
handled competently and at a reasonable fee. See RPCs 1.1 and 1.5. If
the probity of a lawyer’s own conduct in a transaction is in serious question,
it may be difficult or impossible for the lawyer to give a client detached
advice. A lawyer may not allow related business interests to affect
representation, for example, by referring clients to an enterprise in which the
lawyer has an undisclosed interest.
Conflicts in Litigation
[9] Paragraph (a) prohibits representation of opposing parties in
litigation. Simultaneous representation of parties whose interests in
litigation may conflict, such as co-plaintiffs or co-defendants, is governed by
paragraph (b). An impermissible conflict may exist by reason of substantial
discrepancy in the parties’ testimony, by an incompatibility in positions in
relation to an opposing party, or by the fact that there are substantially
different possibilities of settlement of the claims or liabilities in question.
Such conflicts can arise in both civil and criminal cases. However, common
representation of persons having similar interests is proper if the risk of
adverse effect is minimal and the requirements of paragraph (b) are met. Compare
RPC 2.2 (involving intermediation between clients).
[10] The potential for conflict of interest in representing multiple
defendants in a criminal case is so grave that ordinarily a lawyer should
decline to represent more than one co-defendant. However, where the lawyer
chooses to undertake such a joint representation, paragraph (c) requires that
the lawyer demonstrate to the satisfaction of the tribunal that good cause
exists to believe that no conflict of interest prohibited by paragraph (b)
presently exists or is likely to exist in the future. This showing reflects the
same standard currently required by Tennessee Rule of Criminal Procedure 44(c).
[11] However, to avoid the premature disclosure of defense tactics,
strategy, or other information relating to the representation, defense counsel
may request that the tribunal hold an ex parte hearing to determine the
propriety of the joint representation. See RPC 3.3(a)(3) (setting forth
a lawyer’s duty of candor in an ex parte hearing); see also RPC
3.5(b) (permitting a lawyer to speak ex parte to a judge when permitted
to do so by law). Once the tribunal is satisfied that no good cause exists to
believe that a conflict of interest currently exists or is likely to exist, a
rebuttable presumption arises throughout the proceedings that the joint
representation comports with the requirements of this Rule. However, this
presumption in no way relieves counsel of any duty imposed under these Rules
should such an actual conflict of interest later arise.
[12] Ordinarily, a lawyer may not act as an advocate against a
client the lawyer represents in some other matter, even if the other matter is
wholly unrelated. However, there are circumstances in which a lawyer may act as
an advocate against a client. For example, a lawyer representing an enterprise
with diverse operations may accept employment as an advocate against the
enterprise in an unrelated matter if doing so will not adversely affect the
lawyer’s relationship with the enterprise or conduct of the suit and if both
clients consent upon consultation. By the same token, government lawyers in
some circumstances may represent government employees in proceedings in which a
government agency is the opposing party. The propriety of concurrent
representation can depend on the nature of the litigation. For example, a suit
charging fraud entails conflict to a degree not involved in a suit for a
declaratory judgment concerning statutory interpretation.
[13] Ordinarily a lawyer may take inconsistent legal positions in
different tribunals at different times on behalf of different clients. The mere
fact that advocating a legal position on behalf of one client might create
precedent adverse to the interests of a client represented by the lawyer in an
unrelated matter does not create a conflict of interest. A conflict of interest
exists, however, if there is a significant risk that a lawyer’s action in
behalf of one client will materially limit the lawyer’s effectiveness in
representing another client in a different case; for example, when a decision
favoring one client will create a precedent likely to seriously weaken the
position taken by the lawyer on behalf of the other client. Factors relevant in
determining whether the clients need to be advised of the risk include where
the cases are pending; whether the issue is substantive or procedural; the
temporal relationship between the matters; the significance of the issue to the
immediate and long- run interests of the clients involved; and the clients’
reasonable expectations in retaining the lawyer. If there is significant risk
of material limitation, then absent informed consent of the affected clients,
the lawyer must refuse one of the representations or withdraw from one or both
matters.
Interest of Person Paying for a Lawyer’s Service
[14] A lawyer may be paid from a source other than the client if the
client is informed of that fact and consents and if the arrangement does not
compromise the lawyer’s duty of loyalty to the client. See RPC 1.8(f).
For example, when an insurer and its insured have conflicting interests in a
matter arising from a liability insurance agreement, and the insurer is
required to provide special counsel for the insured, the arrangement should
assure the special counsel’s professional independence. So also, when a
corporation and its directors or employees are involved in a controversy in
which they have conflicting interests, the corporation may provide funds for
separate legal representation of the directors or employees if the clients
consent after consultation and the arrangement ensures the lawyer’s
professional independence.
Other Conflict Situations
[15] Conflicts of interest in contexts other than litigation
sometimes may be difficult to assess. Relevant factors in determining whether
there is potential for an adverse effect include the duration and intimacy of
the lawyer’s relationship with the client or clients involved, the functions
being performed by the lawyer, the likelihood that actual conflict will arise,
and the likely prejudice to the client from the conflict if it does arise. The
question is often one of proximity and degree.
[16] For example, a lawyer may not represent multiple parties to a
negotiation whose interests are fundamentally antagonistic to each other, but
common representation is permissible where the clients are generally aligned in
interest even though there is some difference of interest among them. See RPC
2.2 with respect to a lawyer serving two or more clients as an intermediary.
[17] Members of a family may reasonably seek joint representation by
a single lawyer in a matter affecting the family. Conflict questions may arise
in such circumstances. For example, in estate planning, a lawyer may be called
upon to prepare wills for family members, such as husband and wife, and,
depending upon the circumstances, a conflict of interest may arise. Resolution
of conflicts of interest between family members pursuant to this Rule must be
consistent with the lawyer’s duty of undivided loyalty to each client, but the
lawyer may take into account the willingness of each individual client to
accommodate the interests of the family as a whole or the individual interests
of other family members. In estate administration, the identity of the client
may be unclear. Under one view, the client is the fiduciary; under another
view, the client is the estate or trust, including its beneficiaries. The
lawyer should make clear the relationship to the parties involved.
[18] A lawyer for a corporation or other organization who is also a
member of its board of directors should determine whether the responsibilities
of the two roles may conflict. The lawyer may be called on to advise the
corporation in matters involving actions of the directors. Consideration should
be given to the frequency with which such situations may arise, the potential
intensity of the conflict, the effect of the lawyer’s resignation from the
board and the possibility of the corporation’s obtaining legal advice from
another lawyer in such situations. If there is material risk that the dual role
will compromise the lawyer’s independence of professional judgment, the lawyer
should not serve as a director.
Conflict Charged by an Opposing Party
[19] Resolving questions of conflict of interest is primarily the
responsibility of the lawyer undertaking the representation. In litigation, a
court may raise the question when there is reason to infer that the lawyer has
neglected the responsibility. Where the conflict is such as clearly to call in
question the fair or efficient administration of justice, opposing counsel may
properly raise the question. Such an objection should be viewed with caution,
however, for it can be misused as a technique of harassment.
Special Considerations in Joint Representation
[20] In considering whether to represent clients jointly in the same
matter, such as representing co-plaintiffs or co-defendants, a lawyer should be
mindful that if the joint representation fails because the potentially adverse
interests cannot be reconciled, the result can be additional cost,
embarrassment, and recrimination. Ordinarily, the lawyer will be forced to
withdraw from representing all of the clients if the joint representation
fails, unless each client consents after consultation.
[21] A particularly important factor in determining the
appropriateness of joint representation is the effect on lawyer-client
confidentiality and the attorney-client privilege. With regard to the
evidentiary attorney-client privilege, the prevailing rule is that as between
commonly represented clients, the privilege does not attach. Hence, it must be
assumed that the privilege will not protect any such communications if
litigation eventuates between the clients, and the clients should be so
advised.
[22] As to the duty of confidentiality, joint representation will
almost certainly be inadequate if one client attempts to keep something in
confidence between the lawyer and that client, which is not to be disclosed to
the other client. This is so because the lawyer has an equal duty of loyalty to
each client, and each client has the right to be informed of anything bearing
on the representation that might affect that client’s interests and to expect
that the lawyer will use that information to that client’s benefit. See RPC
1.4. The lawyer should, at the outset of the joint representation and as part
of the process of obtaining each client’s consent, advise each client that the
lawyer will share all information material to the representation with each of
the jointly represented clients, unless specifically instructed by one of the
clients not to do so. The lawyer should also advise each client that the lawyer
will abide by the client’s instructions to maintain the confidentiality of the
specified information if any client later insists that some matter material to
the representation should be kept from the other, but that it is likely that
the lawyer will be required to withdraw from the representation. In limited
circumstances, however, it may be appropriate for the lawyer to proceed with
the representation when the clients have agreed, after being properly informed,
that the lawyer will keep certain information confidential.
[23] Subject to the above limitations, each client in the joint
representation has the right to loyal and diligent representation and the
protection of RPC 1.9 concerning the obligations to a former client. Each
client also has the right to discharge the lawyer as stated in RPC 1.16.
Relation to Other Rules
[24] When a lawyer represents a client in a partisan role, whether
as an advocate, an advisor, or the author of a legal opinion to be rendered on
behalf of the client for use by a third person, this Rule provides special
protections for the client to assure that the lawyer’s loyalty will not be
diluted by interests of other clients, the lawyer, or third persons. This Rule,
however, is not applicable to conflicts of interest affecting clients the
lawyer undertakes to serve as an intermediary. If, for example, business
persons or members of a family are seeking the lawyer’s advice or assistance in
a non-adversarial effort to accomplish a common objective with respect to the
formation, conduct, modification, or termination of a consensual relation
between them, such as the formation of a business or a purchase or sale of
property, RPC 2.2 applies. Similarly, if the effectuation of an estate plan or
other gratuitous transfer entails the formation, modification, or termination
of a consensual legal relationship between clients, and the lawyer acts as an
intermediary in connection with the transaction, RPC 2.2 applies. Otherwise,
this Rule applies. Nor is this Rule applicable to conflicts of interest
affecting parties who a lawyer undertakes to serve as a dispute resolution
neutral. See RPC 2.4.
DEFINITIONAL CROSS-REFERENCES
“Consents in Writing” See RPC 1.0(b)
“Consultation” See RPC 1.0(c)
“Materially” See RPC 1.0(g)
“Reasonably Believes” See RPC 1.0(j)
Rule 1.8
CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS
(a) A lawyer shall not enter into a business transaction with a
client or knowingly acquire an ownership, possessory, security or other
pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the
interest are fair and reasonable to the client and are fully disclosed and
transmitted in writing to the client in a manner that can be reasonably
understood by the client; and
(2) the client is given a reasonable opportunity to seek the advice
of independent counsel in the transaction; and
(3) the client consents thereto in a writing signed by the client.
(b) A lawyer shall not use information relating to representation of
a client to the disadvantage of the client, unless the client consents after
consultation, except as otherwise permitted or required by RPC 1.6 or RPC 3.3.
(c) A lawyer shall not prepare an instrument giving the lawyer or a
person related to the lawyer as parent, child, sibling, or spouse any
substantial gift from a client, including a testamentary gift, except where the
client is related to the donee.
(d) Prior to the conclusion of the representation of a client, a
lawyer shall not make or negotiate an agreement giving the lawyer literary or
media rights to a portrayal or account based in substantial part on information
relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in
connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the
repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and
expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation or direction from one
other than the client unless:
(1) the client consents after consultation;
(2) there is no interference with the lawyer’s independence of
professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected
as required by RPC 1.6.
(g) A lawyer who represents two or more clients shall not
participate in making an aggregate settlement of the claims of or against the
clients, or in a criminal case an aggregated agreement as to guilty or nolo
contendere pleas, unless:
(1) the client is given a reasonable opportunity to seek the advice
of independent counsel in the transaction; and
(2) each client consents in writing after consultation, including
disclosure of the existence and nature of all the claims or pleas involved and
of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) enter into an agreement with a prospective, current, or former
client to prospectively limit the lawyer’s liability to the client for
malpractice; or
(2) settle a claim for such liability, unless:
(a) the client is represented in the matter by independent counsel;
or
(b) the lawyer fully discloses all the terms of the agreement to the
client in a manner that can reasonably be understood by the client, advises the
client to seek the advice of independent counsel, and affords the client a
reasonable opportunity to do so.
(i) A lawyer related to another lawyer as parent, child, sibling, or
spouse shall not represent a client in a representation directly adverse to a
person whom the lawyer knows is represented by the other lawyer, unless the
client consents in writing after consultation regarding the relationship.
(j) A lawyer shall not acquire a proprietary interest in the cause
of action or subject matter of litigation the lawyer is conducting for a
client, except that the lawyer may:
(1) acquire a lien granted by law to secure the lawyer’s fee or
expenses; and
(2) contract with a client for a reasonable contingent fee in a
civil case.
COMMENTS
Transactions Between Client and Lawyer
[1] As a general principle, all transactions between client and
lawyer should be fair and reasonable to the client. In such transactions, a
review by independent counsel on behalf of the client is often advisable.
Furthermore, a lawyer may not exploit information relating to the
representation to the client’s disadvantage. For example, a lawyer who has
learned that the client is investing in specific real estate may not, without
the client’s consent, seek to acquire nearby property where doing so would
adversely affect the client’s plan for investment. Paragraph (a) does not,
however, apply to standard commercial transactions between the lawyer and the
client for products or services that the client generally markets to others,
such as banking or brokerage services, medical services, products manufactured
or distributed by the client, and utilities services. In such transactions, the
lawyer has no advantage in dealing with the client, and the restrictions in
paragraph (a) are unnecessary and impracticable.
[2] A lawyer may accept a gift from a client if the transaction
meets general standards of fairness. For example, a simple gift such as a
present given at a holiday or as a token of appreciation is permitted. If
effectuation of a substantial gift requires preparing a legal instrument such
as a will or conveyance, however, the client should have the detached advice
that another lawyer can provide. Paragraph (c) recognizes an exception where
the client is a relative of the donee or the gift is not substantial.
Literary Rights
[3] An agreement by which a lawyer acquires literary or media rights
concerning the conduct of the representation creates a conflict between the
interests of the client and the personal interests of the lawyer. Measures
suitable in the representation of the client may detract from the publication
value of an account of the representation. Paragraph (d) does not prohibit a
lawyer representing a client in a transaction concerning literary property from
agreeing that the lawyer’s fee shall consist of a share in ownership in the
property, if the arrangement conforms to RPC 1.5 and paragraph (j).
Person Paying for Lawyer’s Services
[4] RPC 1.8(f) requires disclosure of the fact that the lawyer’s
services are being paid for by a third party. Such an arrangement must also
conform to the requirements of RPC 1.6 concerning confidentiality and RPC 1.7
concerning conflicts of interest. Where the client is a class, consent may be
obtained on behalf of the class by court-supervised procedure.
Limiting Liability
[5] Paragraph (h) is not intended to apply to customary
qualifications and limitations in legal opinions and memoranda.
Relationships Between Lawyers
[6] RPC 1.8(i) applies to “related” lawyers who are in different
firms. Related lawyers in the same firm are governed by RPCs 1.7, 1.9, and
1.10. The disqualification stated in RPC 1.8(i) is personal and is not imputed
to members of firms with whom the lawyers are associated. See RPC 1.10.
Acquisition of Interest in Litigation
[7] Paragraph (j) states the traditional general rule that lawyers
are prohibited from acquiring a proprietary interest in litigation. This
general rule, which has its basis in common law champerty and maintenance, is
subject to specific exceptions developed in decisional law and continued in
these Rules, such as the exception for reasonable contingent fees set forth in
RPC 1.5 and the exception for certain advances of the costs of litigation set
forth in paragraph (e).
DEFINITIONAL CROSS-REFERENCES
“Consents in Writing” See RPC 1.0(b)
“Consultation” See RPC 1.0(c)
“Knowingly” and “Knows” See RPC 1.0(f)
“Reasonable” and “Reasonably” See RPC 1.0(i)
“Substantial” See RPC 1.0(l)
Rule 1.9
CONFLICT OF INTEREST: FORMER CLIENT
(a) A lawyer who has formerly represented a client in a matter shall
not thereafter represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the interests
of the former client, unless the former client consents in writing after
consultation.
(b) Unless the former client consents in writing after consultation,
a lawyer shall not knowingly represent a person in the same or a substantially
related matter in which a firm with which the lawyer formerly was associated
had previously represented a client whose interests are materially adverse to
that person and about whom the lawyer had acquired information protected by RPC
1.6 and 1.9(c) that is material to the matter.
(c) Unless the former client consents after consultation, a lawyer
who has formerly represented a client in a matter, or whose present or former
firm has formerly represented a client in a matter, shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules otherwise permit or
require with respect to a client, or when the information has become generally
known; or
(2) reveal information relating to the representation of the former
client except as these Rules otherwise permit or require with respect to a
client.
COMMENTS
[1] After termination of a client-lawyer relationship, a lawyer may
not represent another client other than in conformity with this Rule, except
that in the case of a government or former government lawyer, RPC 1.11 applies
rather than paragraphs (a) and (b) of this Rule.
[2] The scope of a “matter” for purposes of this Rule will depend on
the facts of a particular situation or transaction. The appropriateness of the
subsequent representation will depend on the scope of the representation in the
former matter, the scope of the proposed representation in the current matter,
and its relationship to the former matter.
[3] The current matter is substantially related to the former matter
if the current matter involves the work the lawyer performed for the former
client or there is a substantial risk that representation of the present client
will involve the use of information acquired in the course of representing the
former client, unless that information has become generally known.
Changing Sides
[4] Representing one side and then switching to represent the other
in the same matter clearly implicates loyalty to the first client and
protection of that client’s confidences. Similar considerations apply in
non-litigation matters. For example, a lawyer negotiating a complex agreement
on behalf of a seller could not withdraw and represent the buyer against the
interests of the seller in the same transaction. Further, just as a lawyer may
not represent both sides concurrently in the same case, see RPC 1.7(a),
the lawyer also may not represent them consecutively.
[5] Beyond switching sides in the same matter, the concept of
substantial relationship applies to later developments arising out of the
original matter. A matter is substantially related if it involves the work the
lawyer performed for the former client. For example, a lawyer may not on behalf
of a later client attack the validity of a document that the lawyer drafted if
doing so would materially and adversely affect the former client. Similarly, a
lawyer may not represent a debtor in bankruptcy in seeking to set aside a
security interest of a creditor that is embodied in a document that the lawyer
previously drafted for the creditor.
Protecting Confidentiality
[6] The substantial relationship standard is employed most
frequently to protect the confidential information of the former client. A
subsequent matter is substantially related to an earlier matter if there is a
substantial risk that the subsequent representation will involve the use of
confidential information of the former client in violation of the restrictions
these Rules and other law place on disclosure. Substantial risk exists where
one could reasonably conclude that it would materially advance the client’s
position in the subsequent matter to use confidential information obtained in
the prior representation.
[7] Inquiries concerning the existence, exchange, and potential for
use of such confidential information may themselves raise concerns and
difficulties. A concern to protect a former client’s confidential information
would be self-defeating if, in order to obtain its protection, the former
client were required to reveal in a public proceeding the particular
communication or other confidential information that could be used in the
subsequent representation. On the other hand, closed or in camera proceedings
may implicate issues of fairness to other parties. Further, the interests of
subsequent clients also militate against extensive inquiry into the precise
nature of the lawyer’s representation of the subsequent client and the nature
of exchanges between them.
[8] The substantial relationship test attempts to avoid requiring
actual disclosure of confidential information by focusing upon the general
features of the matters involved and inferences as to the likelihood that
confidences were imparted by the former client that could be used to adverse
effect in the subsequent representation. The inquiry into the issues involved
in the prior representation should be as specific as possible without thereby
revealing the confidential client information itself or confidential
information concerning the second client. Nevertheless, the subsequent client’s
interest in selection of counsel of his or her choice requires that the lawyer
be permitted, within appropriate limits, to defeat any presumption or inference
concerning the lawyer’s receipt or exchange of confidential information.
[9] For example, a lawyer who has represented a business person and
learned extensive private financial information about that person may not then
represent that person’s spouse in seeking a divorce. Similarly, a lawyer who
has previously represented a client in securing environmental permits to build
a shopping center would be precluded from representing neighbors who sought to
oppose rezoning of the property. However, the lawyer could defend a tenant of
the completed shopping center in resisting eviction for non-payment of rent, as
no substantial relationship exists between the two matters.
[10] Information that might be confidential for some purposes under
these Rules (so that, for example, a lawyer would not be free to discuss it
publicly) might nonetheless be so general, readily observable, or of so little
value in the subsequent litigation that it should not by itself result in a
substantial relationship being found. Thus, a lawyer may master a particular
substantive area of the law while representing a client, but that does not
preclude the lawyer from later representing another client adversely to the
first in a matter involving the same legal issues, if the facts are not
substantially related. A lawyer might also have learned a former client’s
preferred approach to bargaining in settlement discussions or negotiating
business points in a transaction, willingness or unwillingness to be deposed by
an adversary, or financial ability to withstand extended litigation or contract
negotiations. Only when such information will be directly in issue or of
unusual value in the subsequent matter will it be independently relevant in
assessing a substantial relationship.
Lawyers Moving Between Firms
[11] When lawyers have been associated within a firm but then end
their association, the question of whether a lawyer should undertake
representation is more complicated. There are several competing considerations.
First, the client previously represented by the former firm must be reasonably
assured that the principle of loyalty to the client is not compromised. Second,
the rule should not be so broadly cast as to preclude other persons from having
reasonable choice of legal counsel. Third, the rule should not unreasonably
hamper lawyers from forming new associations and taking on new clients after
having left a previous association. In this connection, it should be recognized
that today many lawyers practice in firms, that many lawyers to some degree
limit their practice to one field or another, and that many move from one
association to another several times in their careers. If the concept of
imputation were applied with unqualified rigor, the result would be radical
curtailment of the opportunity of lawyers to move from one practice setting to
another and of the opportunity of clients to change counsel.
[12] Paragraph (b) operates to disqualify the lawyer only when the
lawyer involved has actual knowledge of information protected by RPC 1.6 and
1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or
information relating to a particular client of the firm, and that lawyer later
joined another firm, neither the lawyer individually nor the second firm is
disqualified from representing another client in the same or a related matter
even though the interests of the two clients conflict. See RPC 1.10(b) for the
restrictions on a firm once a lawyer has terminated association with the firm.
[13] Application of paragraph (b) depends on a situation’s
particular facts, aided by inferences, deductions, or working presumptions that
reasonably may be made about the way in which lawyers work together. A lawyer
may have general access to files of all clients of a law firm and may regularly
participate in discussions of their affairs; if so, then it should be inferred
that such a lawyer is privy to all information about all the firm’s clients. In
contrast, another lawyer may have access to the files of only a limited number
of clients and participate in discussions of the affairs of no other clients.
Under these circumstances, it should be inferred, in the absence of information
to the contrary, that such a lawyer is privy to information about the clients
actually served, but not those of other clients.
[14] Independent of the question of disqualification of a firm, a
lawyer changing professional association has a continuing duty to preserve
confidentiality of information about a client formerly represented. See RPCs
1.6 and 1.9(c).
Relation to Other Rules
[15] Except in situations governed by RPC 1.11, RPC 1.9 applies in
all circumstances in which a lawyer has previously represented a client as an
advocate, an advisor, an intermediary, or an author of a legal opinion to be
rendered on behalf of a client for use by a third person. Except as provided in
RPC 2.4, RPC 1.9 does not apply to parties being served by a lawyer as a
dispute resolution neutral. If, however, the lawyer’s service as a neutral will
be materially adverse to a former client and the dispute is substantially
related to the former representation, the lawyer must afford the former client
the protections of RPC 1.9
DEFINITIONAL CROSS-REFERENCES
“Consents in Writing” See RPC 1.0(b)
“Consultation” See RPC 1.0(c)
“Firm” See RPC 1.0(d)
“Knowingly” and Known” See RPC 1.0(f)
“Material” and “Materially” See RPC 1.0(g)
“Substantially” See RPC 1.0(l)
Rule 1.10
IMPUTED DISQUALIFICATION: GENERAL RULE
(a) Except as permitted by paragraph (c), while lawyers are
associated in a firm, none of them shall knowingly represent a client when any
one of them practicing alone would be prohibited from doing so by RPC 1.7,
1.8(c), 1.9(a), 1.9(b), or 2.2.
(b) When a lawyer has terminated an association with a firm, the
firm is not prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly associated
lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which
the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by
RPC 1.6 and 1.9(c) that is material to the matter.
(c) Except with respect to paragraph (d) below, if a lawyer is
personally disqualified from representing a person with interests adverse to a
client of a law firm with which the lawyer was formerly associated, other
lawyers currently associated in a firm with the personally disqualified lawyer
may nonetheless represent the person if both the personally disqualified lawyer
and the lawyers who will represent the person on behalf of the firm act
reasonably to:
(1) identify that the personally disqualified lawyer is prohibited
from participating in the representation of the current client; and
(2) determine that no lawyer representing the current client has
acquired any information from the personally disqualified lawyer that is
material to the current matter and is protected by RPC 1.9(c); and
(3) promptly implement screening procedures to effectively prevent
the flow of information about the matter between the personally disqualified
lawyer and the other lawyers in the firm; and
(4) advise the former client in writing of the circumstances that
warranted the implementation of the screening procedures required by this Rule
and of the actions that have been taken to comply with this Rule.
(d) The procedures set forth in paragraph (c) may not be used to
avoid imputed disqualification of the firm, if
(1) the disqualified lawyer was substantially involved in the
representation of a former client; and
(2) the lawyer’s representation of the former client was in
connection with an adjudicative proceeding that is directly adverse to the
interests of a current client of the firm; and
(3) the proceeding between the firm’s current client and the
lawyer’s former client is still pending at the time the lawyer changes firms.
(e) A disqualif