REPORT OF THE SELECT COMMITTEE

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APPPOINTED BY THE COURT OF APPEALS OF

MARYLAND TO STUDY THE ETHICS 2000

AMENDMENTS TO THE ABA MODEL RULES OF

PROFESSIONAL CONDUCT

December 16, 2003

COMMITEE MEMBERS

The Honorable Lawrence F. Rodowsky, Chair

Albert D. Brault, Esq.

Alvin I. Frederick, Esq.

Andrew J. Graham, Esq.

Christopher B. Kehoe, Esq.

Linda H. Lamone, Esq.

Thomas E. Lynch, III, Esq.

M. Peter Moser, Esq.

Midgett S. Parker, Jr., Esq.

Pamela J. White, Esq.

Vera Lynne White, Esq.

Professor Robert J. Rubinson, Reporter

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. The Committee’s Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

C. The Format of This Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. RECOMMENDED MARYLAND RULES OF PROFESSIONAL

CONDUCT WITH MODEL RULES COMPARISON. . . . . . . . . . . . . . . . . 3

Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rule 1.0. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CLIENT-LAWYER RELATIONSHIP

Rule 1.1. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rule 1.2. Scope of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Rule 1.3. Diligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Rule 1.4. Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rule 1.5. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Rule 1.6. Confidentiality of Information . . . . . . . . . . . . . . . . . . . . . . . . .25

Rule 1.7. Conflict of Interest: General Rule. . . . . . . . . . . . . . . . . . . . . . .31

Rule 1.8. Conflict of Interest: Current Clients: Specific Rules . . . . . . 40

Rule 1.9. Duties to Former Clients. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Rule 1.10. Imputation of Conflicts of Interest: General Rule. . . . . . . . . 50

Rule 1.11. Special Conflicts of Interest for Former and Current

Government Officers and Employees . . . . . . . . . . . . . . . . . . . 53

Rule 1.12. Former Judge, Arbitrator, Mediator Or Other Third-Party

Neutral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Rule 1.13. Organization as Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59

Rule 1.14. Client With Diminished Capacity. . . . . . . . . . . . . . . . . . . . . . .63

Rule 1.15. Safekeeping Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Rule 1.16. Declining or Terminating Representation. . . . . . . . . . . . . . . . 68

Rule 1.17. Sale of Law Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71

Rule 1.18. Duties to Prospective Client. . . . . . . . . . . . . . . . . . . . . . . . . . . .74

COUNSELOR

Rule 2.1 Advisor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Rule 2.2. [DELETED]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Rule 2.3. Evaluation for Use by Third Parties . . . . . . . . . . . . . . . . . . . . . 79

Rule 2.4. Lawyer Serving as Third-Party Neutral . . . . . . . . . . . . . . . . . . 81

ADVOCATE

Rule 3.1. Meritorious Claims and Contentions. . . . . . . . . . . . . . . . . . . . . . 83

Rule 3.2. Expediting Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Rule 3.3. Candor Toward the Tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Rule 3.4. Fairness to Opposing Party and Counsel . . . . . . . . . . . . . . . . . . 89

Rule 3.5. Impartiality and Decorum of Tribunal . . . . . . . . . . . . . . . . . . . . 91

Rule 3.6. Trial Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Rule 3.7. Lawyer as Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96

Rule 3.8. Special Responsibilities of a Prosecutor . . . . . . . . . . . . . . . . . . . . 98

Rule 3.9. Advocate in Nonadjudicative Proceedings . . . . . . . . . . . . . . . . . .100

TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

Rule 4.1. Truthfulness in Statements to Others . . . . . . . . . . . . . . . . . . . . . .102

Rule 4.2. Communication with Person Represented by Counsel . . . . . . . .104

Rule 4.3. Dealing with Unrepresented Person . . . . . . . . . . . . . . . . . . . . . . . 107

Rule 4.4. Respect for Rights of Third Parties . . . . . . . . . . . . . . . . . . . . . . . 108

LAW FIRMS AND ASSOCIATIONS

Rule 5.1. Responsibilities of Partners, Managers, and Supervisory

Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Rule 5.2. Responsibilities of a Subordinate Lawyer . . . . . . . . . . . . . . . . . . 111

Rule 5.3. Responsibilities Regarding Nonlawyer Assistants . . . . . . . . . . . 112

Rule 5.4. Professional Independence of a Lawyer . . . . . . . . . . . . . . . . . . . . 113

Rule 5.5. Unauthorized Practice of Law: Multijurisdictional Practice

Of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Rule 5.6. Restrictions on Right To Practice. . . . . . . . . . . . . . . . . . . . . . . . . . 120

Rule 5.7. Responsibilities Regarding Law-Related Services . . . . . . . . . . . . 121

PUBLIC SERVICE

Rule 6.1. Pro Bono Publico Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124

Rule 6.2. Accepting Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Rule 6.3. Membership in Legal Services Organization . . . . . . . . . . . . . . . 127

Rule 6.4. Law Reform Activities Affecting Client Interests . . . . . . . . . . . 128

Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services

Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

INFORMATION ABOUT LEGAL SERVICES

Rule 7.1. Communications Concerning a Lawyer’s Services . . . . . . . . . . 131

Rule 7.2. Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Rule 7.3. Direct Contact with Prospective Clients . . . . . . . . . . . . . . . . . . . 135

Rule 7.4. Communication of Fields of Practice. . . . . . . . . . . . . . . . . . . . . . 138

Rule 7.5. Firm Names and Letterhead . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139

Rule 7.6. Political Contributions To Obtain Government Legal

Engagements or Appointments by Judges [not recommended

for adoption] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

MAINTAINING THE INTEGRITY OF THE PROFESSION

Rule 8.1. Bar Admission and Disciplinary Matters . . . . . . . . . . . . . . . . . 142

Rule 8.2. Judicial and Legal Officials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Rule 8.3 Reporting Professional Misconduct . . . . . . . . . . . . . . . . . . . . . . 146

Rule 8.4. Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Rule 8.5. Disciplinary Authority: Choice of Law . . . . . . . . . . . . . . . . . . . 150

APPENDIX: MARYLAND STATE BAR ASSOCIATION CODE OF

CIVILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

III. CONCURRING MINORITY REPORT RE: NEWLY PROPOSED RULE

8.4(E) AND COMMENT [5] – LAWYER MANIFESTING BIAS OR

PREJUDICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

IV. RECOMMENDATIONS FOR FURTHER STUDY . . . . . . . . . . . . . . . . . . . 157

A. Admission on Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

B. Pro Hac Vice Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

C. Non-U.S. Lawyers Licensing as Consultants . . . . . . . . . . . . . . . . . . . . 158

D. Temporary Practice for Foreign Lawyers . . . . . . . . . . . . . . . . . . . . . . 159

Exhibit A: Maine’s Draft Rule Regarding Regional Reciprocal

Admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Exhibit B: ABA Model Rule for the Licensing of Legal Foreign

Consultants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

Exhibit C: Model Rule for Temporary Practice by Foreign Lawyers . . 167

V. COMPARISON OF RECOMMENDED RULES TO CURRENT MARYLAND

RULES OF PROFESSIONAL CONDUCT

Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

Rule 1.0. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

CLIENT-LAWYER RELATIONSHIP

Rule 1.1. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

Rule 1.2. Scope of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

Rule 1.3. Diligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

Rule 1.4. Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

Rule 1.5. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

Rule 1.6. Confidentiality of Information . . . . . . . . . . . . . . . . . . . . . . . . . 192

Rule 1.7. Conflict of Interest: General Rule. . . . . . . . . . . . . . . . . . . . . . .200

Rule 1.8. Conflict of Interest: Current Clients: Specific Rules . . . . . . .211

Rule 1.9. Duties to Former Clients. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219

Rule 1.10. Imputation of Conflicts of Interest: General Rule. . . . . . . . . .223

Rule 1.11. Special Conflicts of Interest for Former and Current

Government Officers and Employees . . . . . . . . . . . . . . . . . . . .229

iii

Rule 1.12. Former Judge, Arbitrator, Mediator Or Other Third-Party

Neutral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .234

Rule 1.13. Organization as Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .236

Rule 1.14. Client With Diminished Capacity. . . . . . . . . . . . . . . . . . . . . . . .240

Rule 1.15. Safekeeping Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244

Rule 1.16. Declining or Terminating Representation. . . . . . . . . . . . . . . . . 246

Rule 1.17. Sale of Law Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .249

Rule 1.18. Duties to Prospective Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . .252

COUNSELOR

Rule 2.1 Advisor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .254

Rule 2.2. [DELETED]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .255

Rule 2.3. Evaluation for Use by Third Parties . . . . . . . . . . . . . . . . . . . . . . .259

Rule 2.4. Lawyer Serving as Third-Party Neutral . . . . . . . . . . . . . . . . . . . 261

ADVOCATE

Rule 3.1. Meritorious Claims and Contentions. . . . . . . . . . . . . . . . . . . . . . .263

Rule 3.2. Expediting Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .264

Rule 3.3. Candor Toward the Tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . . .265

Rule 3.4. Fairness to Opposing Party and Counsel . . . . . . . . . . . . . . . . . . . 269

Rule 3.5. Impartiality and Decorum of Tribunal . . . . . . . . . . . . . . . . . . . . .271

Rule 3.6. Trial Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273

Rule 3.7. Lawyer as Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277

Rule 3.8. Special Responsibilities of a Prosecutor . . . . . . . . . . . . . . . . . . . . .279

Rule 3.9. Advocate in Nonadjudicative Proceedings . . . . . . . . . . . . . . . . . . .281

TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

Rule 4.1. Truthfulness in Statements to Others . . . . . . . . . . . . . . . . . . . . . . 283

Rule 4.2. Communication with Person Represented by Counsel . . . . . . . . 285

Rule 4.3. Dealing with Unrepresented Person . . . . . . . . . . . . . . . . . . . . . . . 288

Rule 4.4. Respect for Rights of Third Parties . . . . . . . . . . . . . . . . . . . . . . . .289

LAW FIRMS AND ASSOCIATIONS

Rule 5.1. Responsibilities of Partners, Managers, and Supervisory

Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290

Rule 5.2. Responsibilities of a Subordinate Lawyer . . . . . . . . . . . . . . . . . . 293

Rule 5.3. Responsibilities Regarding Nonlawyer Assistants . . . . . . . . . . . .294

Rule 5.4. Professional Independence of a Lawyer . . . . . . . . . . . . . . . . . . . .295

Rule 5.5. Unauthorized Practice of Law: Multijurisdictional Practice

Of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .297

Rule 5.6. Restrictions on Right To Practice. . . . . . . . . . . . . . . . . . . . . . . . . .302

Rule 5.7. Responsibilities Regarding Law-Related Services . . . . . . . . . . . .303

PUBLIC SERVICE

Rule 6.1. Pro Bono Publico Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306

Rule 6.2. Accepting Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .308

Rule 6.3. Membership in Legal Services Organization . . . . . . . . . . . . . . . 309

Rule 6.4. Law Reform Activities Affecting Client Interests . . . . . . . . . . . 310

Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services

Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315

INFORMATION ABOUT LEGAL SERVICES

Rule 7.1. Communications Concerning a Lawyer’s Services . . . . . . . . . . .313

Rule 7.2. Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

Rule 7.3. Direct Contact with Prospective Clients . . . . . . . . . . . . . . . . . . . 317

Rule 7.4. Communication of Fields of Practice. . . . . . . . . . . . . . . . . . . . . . 321

Rule 7.5. Firm Names and Letterhead. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322

Rule 7.6. Political Contributions To Obtain Government Legal

Engagements or Appointments by Judges [not recommended

for adoption] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

MAINTAINING THE INTEGRITY OF THE PROFESSION

Rule 8.1. Bar Admission and Disciplinary Matters . . . . . . . . . . . . . . . . . 325

Rule 8.2. Judicial and Legal Officials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327

Rule 8.3 Reporting Professional Misconduct . . . . . . . . . . . . . . . . . . . . . . 329

Rule 8.4. Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331

Rule 8.5. Disciplinary Authority: Choice of Law . . . . . . . . . . . . . . . . . . . 333

VI. PUBLIC COMMENTS AND COMMITTEE RESPONSES . . . . . . . . . . . . 335

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335

B. Public Comments and Committee Responses . . . . . . . . . . . . . . . . . . . 335

1. Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335

2. Rule 1.0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340

3. Rule 1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340

4. Rule 1.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341

5. Rule 1.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351

6. Rule 1.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354

7. Rule 1.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355

8. Rule 1.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356

9. Rule 1.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

10. Rule 1.18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

11. Rule 2.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368

12. Rule 2.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370

13. Rule 3.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371

14. Rule 4.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372

15. Rule 4.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373

16. Rule 5.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373

17. Rule 5.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

18. Rule 6.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379

19. Rule 8.4(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388

20. Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406

20. Further Issue Regarding Limited Representation. . . . . . . . . . 407

21. The MSBA Civility Guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . 408

REPORT OF THE SELECT COMMITTEE

APPOINTED BY THE COURT OF APPEALS OF

MARYLAND TO STUDY THE ETHICS 2000

AMENDMENTS TO THE ABA MODEL RULES

OF PROFESSIONAL CONDUCT

I. Introduction

A. Background

In 1997, the American Bar Association convened “The Commission on

Evaluation of the Rules of Professional Conduct,” better known as the “Ethics 2000

Commission.” This Commission issued recommendations, which were then debated and

adopted in various forms by the ABA House of Delegates. In April 2002, the Maryland

Court of Appeals appointed a Committee to examine the Ethics 2000 changes to the ABA

Model Rules and recommend which changes, if any, would be appropriate for the

Maryland Rules of Professional Conduct. This Report contains this Committee’s

proposed changes.

B. The Committee’s Procedure

The Committee undertook an exhaustive examination of the Maryland Rules of

Professional Conduct and the ABA Model Rules of Professional Conduct. After reaching

consensus on changes the Committee believed were warranted, the Committee solicited

public comment by sending its proposals to interested bar associations and posting its

proposal on the Maryland Judiciary’s website. The Committee received a substantial

number of comments. The Committee carefully reviewed these comments, and, in some

cases, modified its proposal in light of them.

In most instances, the Committee chose either to retain existing Maryland

language or to incorporate language from the Model Rules. Sometimes a proposed Rule

contains both language from the ABA Model Rules while retaining some existing

Maryland language. In addition, given that this review necessitated a wholesale

examination of all the relevant rules and their associated comments, we have on rare

occasions proposed changes different from ABA or existing Maryland language. A

handful of these changes are based upon language not ultimately adopted by the ABA

House of Delegates but that, in the judgment of the Committee, sets forth language

appropriate for this State. On even more rare occasions, the Committee drafted its own

language when existing language did not appear adequate.

The preparation of this proposal has been an exercise in building consensus within

the Committee. Not all Committee members agree with all proposed changes. All

members, however, believe that the proposal on balance achieves greater clarity and more

effective guidelines designed to promote conduct that will benefit both the legal

profession and the public it serves. Individual Committee members have had the option

to submit a separate report that reflects their views on individual points of this proposal,

although the absence of such a report should not imply unanimity on the part of the

Committee for any particular change.

C. The Format of this Report

This Report is in six sections. After this Introduction, the next section contains a

“clean” or unmarked version of the Committee’s Proposed Maryland Rules of

Professional Conduct. The third section contains a Concurring Minority Report

regarding Rule 8.4(e). The fourth section contains the Committee’s Recommendations

for Further Study. The fifth section contains a “redlined” version of the Committee’s

Recommended Maryland Rules of Professional Conduct showing changes from existing

Maryland language. The final section contains public comments and Committee

responses to them.

As an aid to the Court, the Committee has included a “Model Rules Comparison”

after the text and Comment for each proposed Rule. This “Model Rules Comparison”

summarizes the origins of the language of the proposed Rule. Depending on the Court’s

ultimate decisions as to which changes, if any, it chooses to adopt, it may wish to include

this “Model Rules Comparison” as a permanent feature of the Maryland Rules of

Professional Conduct.

II. RECOMMENDED MARYLAND LAWYERS’

RULES OF PROFESSIONAL CONDUCT

WITH MODEL RULES COMPARISON

PREAMBLE: A LAWYER’S RESPONSIBILITIES

[1] A lawyer, as a member of the legal profession, is a representative of clients, an

officer of the legal system and a public citizen having special responsibility for the

quality of justice.

[2] As a representative of clients, a lawyer performs various functions. As

advisor, a lawyer provides a client with an informed understanding of the client's legal

rights and obligations and explains their practical implications. As advocate, a lawyer

zealously asserts the client's position under the rules of the adversary system. As

negotiator, a lawyer seeks a result advantageous to the client but consistent with

requirements of honest dealing with others. As evaluator, a lawyer acts by examining a

client's legal affairs and reporting about them to the client or to others.

[3] In addition to these representational functions, a lawyers may serve as a thirdparty neutral, a nonrepresentational role helping the parties to resolve a dispute or other

matter. Some of these Rules apply directly to lawyers who are or have served as thirdparty neutrals. See, e.g., Rule 1.12 and 2.4. In addition, there are Rules that apply to

lawyers who are not active in the practice of law or to practicing lawyers even when they

are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in

the conduct of a business is subject to discipline for engaging in conduct involving

dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.

[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, access to

the legal system, the administration of justice and 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. In addition, a lawyer should further the

public’s understanding of and confidence in the rule of law and the justice system

because legal institutions in a constitutional democracy depend on popular participation

and support to maintain their authority. 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. Therefore, all lawyers should devote

professional time and resources and use civic influence to ensure equal access to our

system of justice for all those who because of economic or social barriers cannot afford

or secure adequate legal counsel. A lawyer should 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 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 ethical person while earning a satisfactory living. The Rules of

Professional Conduct often prescribe terms for resolving such conflicts. Within the

framework of these Rules, however, 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. These principles

include the lawyer’s obligation zealously to protect and pursue a client’s legitimate

interests, within the bounds of the law, while maintaining a professional, courteous and

civil attitude toward all persons involved in the legal system.

[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 selfinterested concerns of the bar. Every lawyer is responsible for observance of 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 which 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

[14] 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 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

discretion to exercise professional judgment. 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 guidance for practicing in

compliance with the Rules.

[15] 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. The

Comments are sometimes used to alert lawyers to their responsibilities under such other

law.

[16] 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.

[17] 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 attach when the lawyer agrees to consider whether a

client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer

relationship exists for any specific purpose can depend on the circumstances and may be

a question of fact.

[18] Under various legal provisions, including constitutional, statutory and

common law, the responsibilities of government lawyers may include authority

concerning legal matters that ordinarily reposes in the client in private client-lawyer

relationships. For example, a lawyer for a government agency may have authority on

behalf of the government to decide upon settlement or whether to appeal from an adverse

judgment. Such authority in various respects is generally vested in the attorney general

and the state's attorney in state government, and their federal counterparts, and the same

may be true of other government law officers. Also, lawyers under the supervision of

these officers may be authorized to represent several government agencies in

intragovernmental legal controversies in circumstances where a private lawyer could not

represent multiple private clients. These Rules do not abrogate any such authority.

[19] 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, extenuating factors and whether there have

been previous violations.

[20] Violation of a Rule should not itself give rise to a cause of action against a

lawyer nor should it create any presumption in such a case that a legal duty has been

breached. In addition, violation of a Rule does not necessarily warrant any other

nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. 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. Nevertheless, in some

circumstances, a lawyer’s violation of a Rule may be evidence of breach of the applicable

standard of conduct.

[21] 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 as guides to interpretation, but the text of each

Rule is authoritative.

[22] In May 1997, the Maryland State Bar Association’s Board of Governors

approved an aspirational Code of Civility for all lawyers and judges in Maryland. All

Maryland lawyers and judges should honor and voluntarily adhere to the standards set

forth in this Code. Civility is a cornerstone of the legal profession. The principles in the

Code of Civility are not intended to replace, but supplement all existing codes, rules and

statutes concerning lawyers’ and judges’ professional conduct. The Code of Civility is

reprinted as an Appendix to these Rules.

Model Rules Comparison.-With the exception of wording changes to Comment

[20] and the substantial retention of Comment [22] from pre-existing language, the Scope

and Preamble are substantially similar to the language of the Ethics 2000 Amendments to

the ABA Model Rules of Professional Conduct.

Rule 1.0. Terminology.

(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) “Confirmed in writing,” when used in reference to the informed consent of a

person, denotes informed consent that is given in writing by the person or a writing that a

lawyer promptly transmits to the person confirming an oral informed consent. See

paragraph (f) for the definition of “informed consent.” If it is not feasible to obtain or

transmit the writing at the time the person gives informed consent, then the lawyer must

obtain or transmit it within a reasonable time thereafter.

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 law partnership,

professional corporation, sole proprietorship or other association authorized to practice

law; or lawyers employed in a legal services organization or the legal department of a

corporation, government or other organization.

(e) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the

substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.

(f) “Informed consent” denotes the agreement by a person to a proposed course of

conduct after the lawyer has communicated adequate information and explanation about

the material risks of and reasonably available alternatives to the proposed course of

conduct.

(g) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in

question. A person's knowledge may be inferred from circumstances.

(h) “Law firm.” See Rule 1.0(d).

(i) "Partner" denotes a member of a partnership, a shareholder in a law firm

organized as a professional corporation, or a member of an association authorized to

practice law.

(j) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer

denotes the conduct of a reasonably prudent and competent lawyer.

(k) "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.

(l) "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.

(m) “Screened” denotes the isolation of a lawyer from any participation in a

matter through the timely imposition of procedures within a firm that are reasonably

adequate under the circumstances to protect information that the isolated lawyer is

obligated to protect under these Rules or other law.

(n) "Substantial" when used in reference to degree or extent denotes a material

matter of clear and weighty importance.

(o) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or

a legislative body, administrative agency or other body acting in an adjudicative capacity.

A legislative body, administrative agency or other body acts in an adjudicative capacity

when a neutral official, after the presentation of evidence or legal argument by a party or

parties, will render a binding legal judgment directly affecting a party’s interests in a

particular matter.

(p) “Writing” or “written” denotes a tangible or electronic record of a

communication or representation, including handwriting, typewriting, printing,

photostating, photography, audio or videorecording and e-mail. A “signed” writing

includes an electronic sound, symbol or process attached to or logically associated with a

writing and executed or adopted by a person with the intent to sign the writing.

COMMENT

[1] Confirmed in Writing. – If it is not feasible to obtain or transmit a written

confirmation at the time the client gives informed consent, then the lawyer must obtain or

transmit it within a reasonable time thereafter. If a lawyer has obtained a client’s

informed consent, the lawyer may act in reliance on that consent so long as it is

confirmed in writing within a reasonable time thereafter.

[2] Firm.–Whether two or more lawyers constitute a firm within paragraph (c) can

depend on the specific facts. For example, two practitioners who share office space and

occasionally consult or assist each other ordinarily would not be regarded as constituting

a firm. However, if they present themselves to the public in a way that suggests that they

are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes

of the Rules. The terms of any formal agreement between associated lawyers are relevant

in determining whether they are a firm, as is the fact that they have mutual access to

information concerning the clients they serve. Furthermore, it is relevant in doubtful

cases to consider the underlying purpose of the Rule that is involved. A group of lawyers

could be regarded as a firm for purposes of the Rule providing that the same lawyer

should not represent opposing parties in litigation, while it might not be so regarded for

purposes of the Rule that information acquired by one lawyer is attributed to another.

[3] With respect to the law department of an organization, including the

government, there is ordinarily no question that the members of the department constitute

a firm within the meaning of the Rules of Professional Conduct. There can be

uncertainty, however, as to the identity of the client. For example, it may not be clear

whether the law department of a corporation represents a subsidiary or an affiliated

corporation, as well as the corporation by which the members of the department are

directly employed. A similar question can arise concerning an unincorporated

association and its local affiliates.

[4] Similar questions can also arise with respect to lawyers in legal aid and legal

services organizations. Depending upon the structure of the organization, the entire

organization or different components of it may constitute a firm or firms for purposes of

these Rules.

[5] Fraud.-When used in these Rules, the terms “fraud” or “fraudulent” refer to

conduct that is characterized as such under the substantive or procedural law of the

applicable jurisdiction and has a purpose to deceive. This does not include merely

negligent misrepresentation or negligent failure to apprise another of relevant

information. For purposes of these Rules, it is not necessary that anyone has suffered

damages or relied on the misrepresentation or failure to inform.

[6] Informed Consent.-Many of the Rules of Professional Conduct require the

lawyer to obtain the informed consent of a client or other person (e.g., a former client or,

under certain circumstances, a prospective client) before accepting or continuing

representation or pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b).

The communication necessary to obtain such consent will vary according to the Rule

involved and the circumstances giving rise to the need to obtain informed consent. The

lawyer must make reasonable efforts to ensure that the client or other person possesses

information reasonably adequate to make an informed decision. Ordinarily, this will

require communication that includes a disclosure of the facts and circumstances giving

rise to the situation, any explanation reasonably necessary to inform the client or other

person of the material advantages and disadvantages of the proposed course of conduct

and a discussion of the client’s or other person’s options and alternatives. In some

circumstances it may be appropriate for a lawyer to advise a client or other person of

facts or implications already known to the client or other person to seek the advice of

other counsel. A lawyer need not inform a client or other person of facts or implications

already known to the client or other person; nevertheless, a lawyer who does not

personally inform the client or other person assumes the risk that the client or other

person is inadequately informed and the consent is invalid. In determining whether the

information and explanation provided are reasonably adequate, relevant factors include

whether the client or other person is experienced in legal matters generally and in making

decisions of the type involved, and whether the client or other person is independently

represented by other counsel in giving the consent. Normally, such persons need less

information and explanation than others, and generally a client or other person who is

independently represented by other counsel in giving the consent should be assumed to

have given informed consent.

[7] Obtaining informed consent will usually require an affirmative response by

the client or other person. In general, a lawyer may not assume consent from a client’s or

other person’s silence. Consent may be inferred, however, from the conduct of the client

or other person who has reasonably adequate information about the matter. A number of

Rules require that a person’s consent be confirmed in writing. See Rules 1.7(b) and

1.9(a). For a definition of “writing” and “confirmed in writing,” see paragraphs (p) and

(b). Other Rules require that a client’s consent be obtained in a writing signed by the

client. See, e.g., Rules 1.5(c) and 1.8(a). For a definition of “signed,” see paragraph (p).

[8] Screened.-This definition applies to situations where screening of a personally

disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules

1.11, 1.12 or 1.18.

[9] The purpose of screening is to assure the affected parties that confidential

information known by the personally disqualified lawyer remains protected. The

personally disqualified lawyer should acknowledge the obligation not to communicate

with any of the other lawyers in the firm with respect to the matter. Similarly, other

lawyers in the firm who are working on the matter should be informed that the screening

is in place and that they may not communicate with the personally disqualified lawyer

with respect to the matter. Additional screening measures that are appropriate for the

particular matter will depend on the circumstances. To implement, reinforce and remind

all affected lawyers of the presence of the screening, it may be appropriate for the firm to

undertake such procedures as a written undertaking by the screened lawyer to avoid any

communication with other firm personnel and any contact with any firm files or other

materials relating to the matter, written notice and instructions to all other firm personnel

forbidding any communication with the screened lawyer relating to the matter, denial of

access by the screened lawyer to firm files or other materials relating to the matter and

periodic reminders of the screen to the screened lawyer and all other firm personnel.

[10] In order to be effective, screening measures must be implemented as soon as

practical after a lawyer or law firm knows or reasonably should know that there is a need

for screening.

Model Rules Comparison.-Rule 1.0 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except

for the retention of the definition of “consult” and “consultation,” the addition of a crossreference to “law firm,” and the appropriate redesignation of subsections.

CLIENT-LAWYER RELATIONSHIP.

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.

COMMENT

[1] Legal Knowledge and Skill – 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 an emergency 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 an emergency, however,

assistance should be limited to that reasonably necessary in the circumstances, for illconsidered action under emergency conditions 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 applies as well to a lawyer who is

appointed as counsel for an unrepresented person. See also Rule 6.2.

[5] Thoroughness and Preparation – Competent handling of a particular matter

includes inquiry into and analysis of the factual and legal elements of the problem, and

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

extensive treatment than matters of lesser complexity. An agreement between the lawyer

and the client regarding the scope of the representation may limit the matters for which

the lawyer is responsible. See Rule 1.2(c).

[6] Maintaining Competence – To maintain the requisite knowledge and skill, a

lawyer should keep abreast of changes in the law and its practice, engage in continuing

study and education and comply with all continuing legal education requirements to

which the lawyer is subject.

Model Rules Comparison.-Rule 1.0 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct.

Rule 1.2. Scope of Representation and Allocation of Authority between Client and

Lawyer.

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions

concerning the objectives of the representation and, when appropriate, shall consult with

the client as to the means by which they are to be pursued. A lawyer 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, after consultation with the lawyer, 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.

reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that

the lawyer knows 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.

COMMENT

[1] Scope of Representation – Both lawyer and client have authority and

responsibility in the objectives and means of 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. Within those limits, a client

also has a right to consult with the lawyer about the means to be used in pursuing those

objectives. At the same time, a lawyer is not required to pursue objectives or employ

means simply because a client may wish that the lawyer do so. A clear distinction

between objectives and means sometimes cannot be drawn, and in many cases the clientlawyer relationship partakes of a joint undertaking. In questions of means, the lawyer

should assume responsibility for technical and legal tactical issues, but should defer to the

client regarding such questions as the expense to be incurred and concern for third

persons who might be adversely affected.

[2] On occasion, however, a lawyer and a client may disagree about the means to

be used to accomplish the client’s objectives. Because of the varied nature of the matters

about which a lawyer and client might disagree and because the actions in question may

implicate the interests of a tribunal or other persons, this Rule does not prescribe how

such disagreements are to be resolved. Other law, however, may be applicable and

should be consulted by the lawyer. The lawyer should also consult with the client and

seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing

and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw

from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the

disagreement by discharging the lawyer. See Rule 1.16(a)(3).

[3] At the outset of a representation, the client may authorize the lawyer to take

specific action on the client’s behalf without further consultation. Absent a material

change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance

authorization. The client may, however, revoke such authority at any time.

[4] In a case in which the client appears to be suffering diminished capacity, the

lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.

[5] Independence from Client's Views or Activities – 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.

[6] Agreements Limiting Scope of Representation – 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 limitations may exclude

actions that the client thinks are too costly or that the lawyer regards as repugnant or

imprudent.

[7] 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 form 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 Rule 1.1.

[8] All agreements concerning a lawyer’s representation of a client must accord

with the Rules of Professional Conduct and other law. See, e.g., Rule 1.1, 1.8 and 5.6.

[9] Criminal, Fraudulent and Prohibited Transactions –Paragraph (d) prohibits a

lawyer from knowingly counseling or assisting a client to commit a crime or fraud. 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. The fact that

a client uses advice in a course of action that is criminal or fraudulent does not, 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.

[10] When the client's course of action has already begun and is continuing, the

lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the

client, for example, by drafting or delivering documents that the lawyer knows are

fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not

continue assisting a client in conduct that the lawyer originally supposed was legally

proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw

from the representation of the client in the matter. See Rule 1.16(a). In some cases

withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice

of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like.

See Rules 1.6, 4.1.

[11] Where the client is a fiduciary, the lawyer may be charged with special

obligations in dealings with a beneficiary.

[12] Paragraph (d) applies whether or not the defrauded party is a party to the

transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal

or fraudulent avoidance 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.

[13] 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 Rule 1.4(a)(4).

Model Rules Comparison.-Rule 1.2 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except

for wording changes in Rule 1.2(a) and the retention of existing Maryland language in

Comment [1].

Rule 1.3. Diligence.

A lawyer shall act with reasonable diligence and promptness in representing a

client.

COMMENT

[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 must

also act with commitment and dedication to the interests of the client and with zeal in

advocacy upon the client's behalf. A lawyer is not bound, however, to press for every

advantage that might be realized for a client. For example, a lawyer may have authority

to exercise professional discretion in determining the means by which a matter should be

pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not

require the use of offensive tactics or preclude the treating of all persons involved in the

legal process with courtesy and respect.

[2] A lawyer's workload must be controlled so that each matter can be handled

competently.

[3] 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. A lawyer’s duty to act

with reasonable promptness, however, does not preclude the lawyer from agreeing to a

reasonable request for a postponement that will not prejudice the lawyer’s client.

[4] 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 and the lawyer and

client have not agreed that the lawyer will handle the matter on appeal, the lawyer must

consult with the client about the possibility of appeal before relinquishing responsibility

for the matter. See Rule 1.4. Whether the lawyer is obligated to prosecute the appeal for

the client depends on the scope of the representation the lawyer has agreed to provide to

the client. See Rule 1.2.

[5] To prevent neglect of client matters in the event of a sole practitioner’s death

or disability, the duty of diligence may require that each sole practitioner prepare a plan,

in conformity with applicable rules, that designates another competent lawyer to review

client files, notify each client of the lawyer’s death or disability, and determine whether

there is a need for immediate protective action. C.f. Md. Rule 16-777 (providing for

appointment of a conservator to inventory the files of an attorney who is deceased or has

abandoned the practice of law, and to take other appropriate action to protect the

attorney’s clients in the absence of a plan to protect clients’ interests).

Model Rules Comparison.-Rule 1.3 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except

for Comment [5], which incorporates Maryland law.

Rule 1.4. Communication.

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with

respect to which the client’s informed consent, as defined in Rule

1.0(f), is required by these Rules;

(2) keep the client reasonably informed about the status of the matter;

(3) promptly comply with reasonable requests for information; and

(4) consult with the client about any relevant limitation on the lawyer’s

conduct when the lawyer knows that the client expects assistance not permitted by

the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit

the client to make informed decisions regarding the representation.

COMMENT

[1] Reasonable communication between the lawyer and the client is necessary for

the client effectively to participate in the representation.

[2] Communicating with Client. – If these Rules require that a particular decision

about the representation be made by the client, paragraph (a)(1) requires that the lawyer

promptly consult with and secure the client’s consent prior to taking action unless prior

discussions with the client have resolved what action the client wants the lawyer to take.

For example, a lawyer who receives from opposing counsel an offer of settlement in a

civil controversy or a proffered plea bargain in a criminal case must promptly inform the

client of its substance unless the client has previously indicated that the proposal will be

acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.

See Rule 1.2(a).

[3] Under Rule 1.2(a), a lawyer is required, when appropriate, to consult with the

client about the means to be used to accomplish the client’s objectives. 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

action. In other circumstances, such as during a trial when an immediate decision must

be made, the exigency of the situation may require the lawyer to act without prior

consultation. In such cases the lawyer must nonetheless act reasonably to inform the

client of actions the lawyer has taken on the client’s behalf. Additionally, paragraph

(a)(2) requires that the lawyer keep the client reasonably informed about the status of the

matter, such as significant developments affecting the timing or the substance of the

representation.

[4] A lawyer’s regular communication with clients will minimize the occasions on

which a client will need to request information concerning the representation. When a

client makes a reasonable request for information, however, paragraph (a)(3) requires

prompt compliance with the request, or if a prompt response is not feasible, that the

lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request and advise

the client when a response may be expected. Client telephone calls should be promptly

returned or acknowledged.

[5] Explaining Matters. - 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. Adequacy of communication depends in part on the kind of advice or assistance

that is involved. For example, where there is time to explain a proposal made in a

negotiation, the lawyer should review all important provisions with the client before

proceeding to an agreement. In litigation a lawyer should explain the general strategy

and prospects of success and ordinarily should consult the client on tactics that are likely

to result in significant expense or to injure or coerce others. On the other hand, a lawyer

ordinarily will not be expected to describe trial or negotiation strategy in detail. The

guiding principle is that the lawyer should fulfill reasonable client expectations for

information consistent with the duty to act in the client's best interests, and the client's

overall requirements as to the character of representation. In certain circumstances, such

as when a lawyer asks a client to consent to a representation affected by a conflict of

interest, the client must give informed consent, as defined in Rule 1.0(f).

[6] 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 suffers

from diminished capacity. See Rule 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; ordinarily, the lawyer should address communications to the appropriate officials

of the organization. See Rule 1.13. Where many routine matters are involved, a system

of limited or occasional reporting may be arranged with the client.

[7] Withholding Information – 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 or the interests or convenience of another person. 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.

Model Rules Comparison.-Rule 1.4 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except

for the deletion of Model Rule 1.4(a)(2) and the redesignation of subsections as

appropriate, and wording changes to Comment [3].

Rule 1.5. Fees.

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable

fee or an unreasonable amount for expenses. 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 of 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; and

(8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses

for which the client will be responsible shall be communicated to the client, preferably in

writing, before or within a reasonable time after commencing the representation, except

when the lawyer will charge a regularly represented client on the same basis or rate. Any

changes in the basis or rate of the fee or expenses shall also be communicated to the

client.

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 a 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 settlement, trial or appeal;

litigation and other expenses to be deducted from the recovery; and whether such

expenses are to be deducted before or after the contingent fee is calculated. The

agreement must clearly notify the client of any expenses for which the client will be

responsible whether or not the client is the prevailing party. Upon conclusion of a

contingent fee matter, the lawyer shall provide the client with a written statement stating

the outcome of the matter, and, if there is a recovery, showing the remittance 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 custody of a child or upon the

amount of alimony or support or property settlement, or upon the amount of an

award pursuant to Sections 8-201 through 213 of Md. Code Ann., Fam. Law; 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 each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the joint representation and the agreement is

confirmed in writing; and

(3) the total fee is reasonable.

COMMENT

[1] Reasonableness of Fee and Expenses. – Paragraph (a) requires that lawyers

charge fees that are reasonable under the circumstances. The factors specified in (1)

through (8) are not exclusive. Nor will each factor be relevant in each instance.

Paragraph (a) also requires that expenses for which the client will be charged must be

reasonable. A lawyer may seek reimbursement for the cost of services performed inhouse, such as copying, or for other expenses incurred in-house, such as telephone

charges, either by charging a reasonable amount to which the client has agreed in

advance or by charging an amount that reasonably reflects the cost incurred by the

lawyer.

[2] Basis or Rate of Fee – When the lawyer has regularly represented a client,

they ordinarily will have evolved an understanding concerning the basis or rate of the fee

and the expenses for which the client will be responsible. In a new client-lawyer

relationship, however, an understanding as to fees and expenses must be promptly

established. Generally, it is desirable to furnish the client with at least a simple

memorandum or copy of the lawyer’s customary fee arrangements that states the general

nature of the legal services to be provided, the basis, rate, or total amount of the fee and

whether and to what extent the client will be responsible for any costs, expenses or

disbursements in the course of representation. A written statement concerning the terms

of the engagement reduces the possibility of misunderstanding.

[3] Contingent fees, like any other fees, are subject to the reasonableness standard

of paragraph (a) of this Rule. In determining whether a particular contingent fee is

reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer

must consider the factors that are relevant under the circumstances. Applicable law may

impose limitations on contingent fees, such as a ceiling on the percentage allowable, or

may require a lawyer to offer clients an alternative basis for the fee. Applicable law may

also apply to situations other than a contingent fee, for example, government regulations

regarding fees in certain tax matters.

[4] Terms of Payment – A lawyer may require advance payment of a fee, but is

obliged to return any unearned portion. See Rule 1.15(c); Comment [3] to Rule 1.15;

Rule 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(i). However, a fee paid in property instead of money may be subject to the

requirements of Rule 1.8(a) because such fees often have the essential qualities of a

business transaction with the client.

[5] 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.

[6] Prohibited Contingent Fees – Paragraph (d) prohibits a lawyer from charging

a contingent fee in a domestic relations matter when payment is contingent upon the

securing of a divorce or upon the amount of alimony or support or property settlement to

be obtained. This provision does not preclude a contract for a contingent fee for legal

representation in connection with the recovery of post-judgment balances due under

support, alimony or other financial orders because such contracts do not implicate the

same policy concerns.

[7] Division of Fee – 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 agrees to the joint representation, which is confirmed in writing.

Contingent fee agreements must be in a writing signed by the client and must otherwise

comply with paragraph (c) of this Rule. Joint responsibility for the representation entails

financial and ethical responsibility for the representation as if the lawyers were associated

in a partnership. A lawyer should only refer a matter to a lawyer whom the referring

lawyer reasonably believes is competent to handle the matter. See Rule 1.1.

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in

the future for work done when lawyers were previously associated in a law firm.

[9] Disputes over Fees – If a procedure has been established for resolution of fee

disputes, such as an arbitration or mediation procedure established by the bar, the lawyer

must comply with the procedure when it is mandatory, and even when it is voluntary, 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.

Cross references. — See Post v. Bregman, 349 Md. 142 (1998) and Son v.

Margolius, 349 Md. 441 (1998).

Model Rules Comparison.-Rule 1.5 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except

that it retains existing Maryland language in Rule 1.5(d)(1) and adds wording changes to

Rule 1.5(e)(2) and Comment [7].

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to representation of a client

unless the client gives informed consent, the disclosure is impliedly authorized in order to

carry out the representation, or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to

the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is

reasonably certain to result in substantial injury to the financial interests or

property of another and in furtherance of which the client has used or is using the

lawyer’s services;

(3) to prevent, mitigate, or rectify substantial injury to the financial

interests or property of another that is reasonably certain to result or has resulted

from the client’s commission of a crime or fraud in furtherance of which the client

has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these Rules,

a court order or other law;

(5) 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, civil

claim, or disciplinary complaint 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; or

(6) to comply with these Rules, a court order or other law.

COMMENT

[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. See Rule 1.18

for the lawyer's duties with respect to information provided to the lawyer by a

prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating

to the lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for

the lawyer's duties with respect to the use of such information to the disadvantage of

clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the

absence of the client's informed consent, the lawyer must not reveal information relating

to the representation. See Rule 1.0(f) for the definition of informed consent. This

contributes to the trust that is the hallmark of the client-lawyer relationship. The client is

thereby encouraged to seek legal assistance and to communicate fully and frankly with

the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs

this information to represent the client effectively and, if necessary, to advise the client to

refrain from wrongful conduct. Almost without exception, clients come to lawyers in

order to determine their rights and what is, in the complex of laws and regulations,

deemed to be legal and correct. Based upon experience, lawyers know that almost all

clients follow the advice given, and the law is upheld.

[3] The principle of client-lawyer confidentiality is given effect by related bodies

of law: the attorney-client privilege, the work product doctrine and the rule of

confidentiality established in professional ethics. The attorney-client privilege and workproduct doctrine apply 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 required by the Rules of Professional

Conduct or other law. See also Scope.

[4] 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 a hypothetical 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.

[5] Implied Authority to Disclose - Except to the extent that the client's

instructions or special circumstances limit that authority, a lawyer is impliedly authorized

to make disclosures about a client when appropriate in carrying out the representation. In

some situations, for example, a lawyer may be impliedly authorized to admit a fact that

cannot properly be disputed, or to make a disclosure that facilitates a satisfactory

conclusion to a matter. 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.

[6] Disclosure Adverse to Client – 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. Paragraph (b), however, permits disclosure only to the extent the lawyer

reasonably believes the disclosure is necessary to accomplish one of the purposes

specified. Where practicable, the lawyer should first seek to persuade the client to take

suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the

client's interest should be no greater than the lawyer reasonably believes necessary to

accomplish the purpose. If the disclosure will be made in connection with a judicial

proceeding, 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.

[7] Paragraph (b) permits, but does not require the disclosure of information

relating to a client's representation to accomplish the purposes specified in paragraphs

(b)(1) through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may

consider such factors as the nature of the lawyer's relationship with the client and with

those who might be injured by the client, the lawyer's own involvement in the transaction

and factors that may extenuate the conduct in question. A lawyer's decision not to

disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be

required, however, by other Rules regardless of whether the disclosure is permitted by

Rule 1.6. See Rules 1.2(d), 3.3(a)(4), 4.1(b), 8.1 and 8.3. A lawyer representing an

organization may in some circumstances be permitted to disclose information regardless

of whether the disclosure is permitted by Rule 1.6(b). See Rule 1.13(c).

[8] Paragraph (b)(1) recognizes the overriding value of life and physical integrity

and permits disclosure reasonably believed necessary to prevent reasonably certain death

or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered

imminently or if there is a present and substantial threat that a person will suffer such

harm 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 may 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 reasonably believes disclosure is necessary to

eliminate the threat or reduce the number of victims.

[9] Paragraph (b)(2) is a limited exception to the rule of confidentiality that

permits the lawyer to reveal information to the extent necessary to enable affected

persons or appropriate authorities to prevent the client from committing a crime or a

fraud, as defined in Rule 1.0(e), that is reasonably certain to result in substantial injury to

the financial or property interests of another and in furtherance of which the client has

used or is using the lawyer's services. Such a serious abuse of the client-lawyer

relationship by the client forfeits the protection of this Rule. The client can, of course,

prevent such disclosure by refraining from the wrongful conduct. Although paragraph

(b)(2) does not require the lawyer to reveal the client's misconduct, the lawyer may not

counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See

Rule 1.2(d). See also Rule 1.16 with respect to 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 should consult Rule 1.13(b).

[10] Paragraph (b)(3) addresses the situation in which the lawyer does not learn

of a client's criminal or fraudulent act in furtherance of which the lawyer's services were

used until after the act has occurred. Although the client no longer has the option of

preventing disclosure by refraining from the wrongful conduct, there will be situations in

which the loss suffered by the affected person can be prevented, rectified or mitigated. In

such situations, the lawyer may disclose information relating to the representation to the

extent necessary to enable the affected persons to prevent or mitigate reasonably certain

losses or to attempt to recoup their losses. Paragraph (b)(3) does not apply when a person

who has committed a crime or fraud thereafter employs a lawyer for representation

concerning that offense.

[11] A lawyer's confidentiality obligations do not preclude a lawyer from securing

confidential legal advice about the lawyer's personal responsibility to comply with these

Rules, a court order or other law. In most situations, disclosing information to secure

such advice will be impliedly authorized for the lawyer to carry out the representation.

Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such

disclosure because of the importance of a lawyer's compliance with the law.

[12] Withdrawal – If the lawyer knows that the lawyer's services will be used by

the client in materially furthering a course of criminal or fraudulent conduct, the lawyer

must withdraw, as stated in Rule 1.16 (a)(1). After withdrawal the lawyer is required to

refrain from making disclosure of the client's confidences, except as otherwise provided

in Rule 1.6 or in other Rules.

[13] If the lawyer knows that despite the withdrawal the client is continuing in

conduct that is criminal or fraudulent, and is making use of the fact that the lawyer was

involved in the matter, the lawyer may have to take positive steps to avoid being held to

have assisted the conduct. See Rules 1.2(d) and 4.1(b). In other situations not involving

such assistance, the lawyer has discretion to make disclosure of otherwise confidential

information only in accordance with Rules 1.6 and 1.13(c). Neither this Rule nor Rule

1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal,

and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the

like.

[14] Dispute Concerning Lawyer's Conduct – Where a legal claim or disciplinary

charge alleges complicity of the lawyer in a client's conduct or other misconduct of the

lawyer involving representation of the client, the lawyer may respond to the extent the

lawyer reasonably believes necessary to establish a defense. The same is true with

respect to a claim involving the conduct or representation of a former client. Such a

charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on

a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a

third person, for example, a person claiming to have been defrauded by the lawyer and

client acting together. The lawyer's right to respond arises when an assertion of such

complicity has been made. Paragraph (b)(5) does not require the lawyer to await the

commencement of an action or proceeding that charges such complicity, so that the

defense may be established by responding directly to a third party who has made such an

assertion. The right to defend also applies, of course, where a proceeding has been

commenced.

[15] A lawyer entitled to a fee is permitted by paragraph (b)(5) 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.

[16] Disclosures Otherwise Required or Authorized – As noted in Comment 7,

Rules 3.3(b) and 4.1(b) require disclosure in some circumstances regardless of whether

the disclosure is permitted by Rule 1.6. Circumstances may be such that disclosure is

required under other Rules, for example, Rule 1.2(d), in order to avoid assisting a client

to perpetrate a crime or fraud.

[17] Other law may require that a lawyer disclose information about a client.

Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these

Rules. When disclosure of information relating to the representation appears to be

required by other law, the lawyer must discuss the matter with the client to the extent

required by Rule 1.4. If, however, the other law supersedes this Rule and requires

disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary

to comply with the law.

[18] A lawyer may be ordered to reveal information relating to the representation

of a client by a court or by another tribunal or governmental entity claiming authority

pursuant to other law to compel the disclosure. Absent informed consent of the client to

do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that

the order is not authorized by other law or that the information sought is protected against

disclosure by the attorney-client privilege or other applicable law. In the event of an

adverse ruling, the lawyer must consult with the client about the possibility of appeal to

the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6)

permits the lawyer to comply with the court's order.

[19] Acting Competently to Preserve Confidentiality – A lawyer must act

competently to safeguard information relating to the representation of a client against

inadvertent or unauthorized disclosure by the lawyer or other persons who are

participating in the representation of the client or who are subject to the lawyer's

supervision. See Rules 1.1, 5.1 and 5.3.

[20] 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 use 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.

[21] Former Client – The duty of confidentiality continues after the client-lawyer

relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition

against using such information to the disadvantage of the former client.

Model Rules Comparison.-Rule 1.6 retains elements of existing Md. Rule 1.6

language, incorporates some changes from the Ethics 2000 Amendments to the ABA

Model Rules, and incorporates further revisions.

Rule 1.7. Conflict of Interest: General Rule.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a conflict of interest. A conflict of interest exists if:

(1) the representation of one client will be directly adverse to another

client; or

(2) there is a significant risk that the representation of one or more clients

will be materially limited by the lawyer's responsibilities to another client, a

former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a conflict of interest under paragraph (a), a

lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one

client against another client represented by the lawyer in the same litigation or

other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

COMMENT

[1] General Principles.- Loyalty and independent judgment are essential elements

in the lawyer's relationship to a client. Conflicts of interest can arise from the lawyer's

responsibilities to another client, a former client or a third person or from the lawyer's

own interests. For specific Rules regarding certain conflicts of interest, see Rule 1.8. For

former client conflicts of interest, see Rule 1.9. For conflicts of interest involving

prospective clients, see Rule 1.18. For definitions of "informed consent" and "confirmed

in writing," see Rule 1.0(f) and (b).

[2] Resolution of a conflict of interest problem under this Rule requires the lawyer

to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest

exists; 3) decide whether the representation may be undertaken despite the existence of a

conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients

affected under paragraph (a) and obtain their informed consent, confirmed in writing. The

clients affected under paragraph (a) include both of the clients referred to in paragraph

(a)(1) and the one or more clients whose representation might be materially limited under

paragraph (a)(2).

[3] A conflict of interest may exist before representation is undertaken, in which

event the representation must be declined, unless the lawyer obtains the informed consent

of each client under the conditions of paragraph (b). To determine whether a conflict of

interest exists, a 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

persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a

failure to institute such procedures will not excuse a lawyer's violation of this Rule. As to

whether a client-lawyer relationship exists or, having once been established, is

continuing, see Comment to Rule 1.3 and Scope.

[4] If a conflict arises after representation has been undertaken, the lawyer

ordinarily must withdraw from the representation, unless the lawyer has obtained the

informed consent of the client under the conditions of paragraph (b). See Rule 1.16.

Where more than one client is involved, whether the lawyer may continue to represent

any of the clients is determined both by the lawyer's ability to comply with duties owed

to the former client and by the lawyer's ability to represent adequately the remaining

client or clients, given the lawyer's duties to the former client. See Rule 1.9. See also

Comments [5] and [29].

[5] Unforeseeable developments, such as changes in corporate and other

organizational affiliations or the addition or realignment of parties in litigation, might

create conflicts in the midst of a representation, as when a company sued by the lawyer

on behalf of one client is bought by another client represented by the lawyer in an

unrelated matter. Depending on the circumstances, the lawyer may have the option to

withdraw from one of the representations in order to avoid the conflict. The lawyer must

seek court approval where necessary and take steps to minimize harm to the clients. See

Rule 1.16. The lawyer must continue to protect the confidences of the client from whose

representation the lawyer has withdrawn. See Rule 1.9(c).

[6] Identifying Conflicts of Interest: Directly Adverse.- Loyalty to a current client

prohibits undertaking representation directly adverse to that client without that client's

informed consent. Thus, absent consent, a lawyer may not act as an advocate in one

matter against a person the lawyer represents in some other matter, even when the matters

are wholly unrelated. The client as to whom the representation is directly adverse is likely

to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to

impair the lawyer's ability to represent the client effectively. In addition, the client on

whose behalf the adverse representation is undertaken reasonably may fear that the

lawyer will pursue that client's case less effectively out of deference to the other client,

i.e., that the representation may be materially limited by the lawyer's interest in retaining

the current client. Similarly, a directly adverse conflict may arise when a lawyer is

required to cross-examine a client who appears as a witness in a lawsuit involving

another client, as when the testimony will be damaging to the client who is represented in

the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients

whose interests are only economically adverse, such as representation of competing

economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of

interest and thus may not require consent of the respective clients.

[7] Directly adverse conflicts can also arise in transactional matters. For example,

if a lawyer is asked to represent the seller of a business in negotiations with a buyer

represented by the lawyer, not in the same transaction but in another, unrelated matter,

the lawyer could not undertake the representation without the informed consent of each

client.

[8] Identifying Conflicts of Interest: Material Limitation. – Even where there is no

direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's

ability to consider, recommend or carry out an appropriate course of action for the client

will be materially limited as a result of the lawyer's other responsibilities or interests. For

example, a lawyer asked to represent several individuals seeking to form a joint venture

is likely to be materially limited in the lawyer's ability to recommend or advocate all

possible positions that each might take because of the lawyer's duty of loyalty to the

others. The conflict in effect forecloses alternatives that would otherwise be available to

the client. The mere possibility of subsequent harm does not itself require disclosure and

consent. The critical questions are the likelihood that a difference in interests will

eventuate and, if it does, whether it will materially interfere with the lawyer's independent

professional judgment in considering alternatives or foreclose courses of action that

reasonably should be pursued on behalf of the client.

[9] Lawyer's Responsibilities to Former Clients and Other Third Persons. – In

addition to conflicts with other current clients, a lawyer's duties of loyalty and

independence may be materially limited by responsibilities to former clients under Rule

1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising

from a lawyer's service as a trustee, executor or corporate director.

[10] Personal Interest Conflicts. – The lawyer's own interests should not be

permitted to have an adverse effect on representation of a client. For example, 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. Similarly, when a

lawyer has discussions concerning possible employment with an opponent of the lawyer's

client, or with a law firm representing the opponent, such discussions could materially

limit the lawyer's representation of the client. In addition, 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 financial interest. See Rule 1.8 for

specific Rules pertaining to a number of personal interest conflicts, including business

transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7

ordinarily are not imputed to other lawyers in a law firm).

[11] When lawyers representing different clients in the same matter or in

substantially related matters are closely related by blood or marriage, there may be a

significant risk that client confidences will be revealed and that the lawyer's family

relationship will interfere with both loyalty and independent professional judgment. As a

result, each client is entitled to know of the existence and implications of the relationship

between the lawyers before the lawyer agrees to undertake the representation. Thus, a

lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may

not represent a client in a matter where that lawyer is representing another party, unless

each client gives informed consent. The disqualification arising from a close family

relationship is personal and ordinarily is not imputed to members of firms with whom the

lawyers are associated. See Rule 1.10.

[12] A sexual relationship with a client, whether or not in violation of criminal

law, will create an impermissible conflict between the interests of the client and those of

the lawyer if (1) the representation of the client would be materially limited by the sexual

relationship and (2) it is unreasonable for the lawyer to believe the lawyer can provide

competent and diligent representation. Under those circumstances, informed consent by

the client is ineffective. See also Rule 8.4.

[13] Interest of Person Paying for a Lawyer's Service. – A lawyer may be paid

from a source other than the client, including a co-client, if the client is informed of that

fact and consents and the arrangement does not compromise the lawyer's duty of loyalty

or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from

any other source presents a significant risk that the lawyer's representation of the client

will be materially limited by the lawyer's own interest in accommodating the person

paying the lawyer's fee or by the lawyer's responsibilities to a payer who is also a coclient, then the lawyer must comply with the requirements of paragraph (b) before

accepting the representation, including determining whether the conflict is consentable

and, if so, that the client has adequate information about the material risks of the

representation.

[14] Prohibited Representations .- Ordinarily, clients may consent to

representation notwithstanding a conflict. However, as indicated in paragraph (b), some

conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for

such agreement or provide representation on the basis of the client's consent. When the

lawyer is representing more than one client, the question of consentability must be

resolved as to each client.

[15] Consentability is typically determined by considering whether the interests of

the clients will be adequately protected if the clients are permitted to give their informed

consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1),

representation is prohibited if in the circumstances the lawyer cannot reasonably

conclude that the lawyer will be able to provide competent and diligent representation.

See Rule 1.1 (competence) and Rule 1.3 (diligence).

[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the

representation is prohibited by applicable law. For example, in some states substantive

law provides that the same lawyer may not represent more than one defendant in a capital

case, even with the consent of the clients, and under federal criminal statutes certain

representations by a former government lawyer are prohibited, despite the informed

consent of the former client. In addition, decisional law in some states limits the ability of

a governmental client, such as a municipality, to consent to a conflict of interest.

[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the

institutional interest in vigorous development of each client's position when the clients

are aligned directly against each other in the same litigation or other proceeding before a

tribunal. Whether clients are aligned directly against each other within the meaning of

this paragraph requires examination of the context of the proceeding. Although this

paragraph does not preclude a lawyer's multiple representation of adverse parties to a

mediation (because mediation is not a proceeding before a "tribunal" under Rule 1.0(o)),

such representation may be precluded by paragraph (b)(1).

[18] Informed Consent. – Informed consent requires that each affected client be

aware of the relevant circumstances and of the material and reasonably foreseeable ways

that the conflict could have adverse effects on the interests of that client. See Rule 1.0(f)

(informed consent). The information required depends on the nature of the conflict and

the nature of the risks involved. When representation of multiple clients in a single

matter is undertaken, the information must include the implications of the common

representation, including possible effects on loyalty, confidentiality and the attorneyclient privilege and the advantages and risks involved. See Comments [30] and [31]

(effect of common representation on confidentiality).

[19] Under some circumstances it may be 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. In some cases the alternative to common representation can be that each

party may have to obtain separate representation with the possibility of incurring

additional costs. These costs, along with the benefits of securing separate representation,

are factors that may be considered by the affected client in determining whether common

representation is in the client's interests.

[20] Consent Confirmed in Writing. – Paragraph (b) requires the lawyer to obtain

the informed consent of the client, confirmed in writing. Such a writing may consist of a

document executed by the client or one that the lawyer promptly records and transmits to

the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(p) (writing

includes electronic transmission). If it is not feasible to obtain or transmit the writing at

the time the client gives informed consent, then the lawyer must obtain or transmit it

within a reasonable time thereafter. See Rule 1.0(b). 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 with a conflict of interest, as well

as reasonably available alternatives, and to afford the client a reasonable opportunity to

consider the risks and alternatives and to raise questions and concerns. Rather, the

writing is required in order to impress upon clients the seriousness of the decision the

client is being asked to make and to avoid disputes or ambiguities that might later occur

in the absence of a writing.

[21] Revoking Consent. – A client who has given consent to a conflict may revoke

the consent and, like any other client, may terminate the lawyer's representation at any

time. Whether revoking consent to the client's own representation precludes the lawyer

from continuing to represent other clients depends on the circumstances, including the

nature of the conflict, whether the client revoked consent because of a material change in

circumstances, the reasonable expectations of the other client and whether material

detriment to the other clients or the lawyer would result.

[22] Consent to Future Conflict. – Whether a lawyer may properly request a client

to waive conflicts that might arise in the future is subject to the test of paragraph (b). The

effectiveness of such waivers is generally determined by the extent to which the client

reasonably understands the material risks that the waiver entails. The more

comprehensive the explanation of the types of future representations that might arise and

the actual and reasonably foreseeable adverse consequences of those representations, the

greater the likelihood that the client will have the requisite understanding. Thus, if the

client agrees to consent to a particular type of conflict with which the client is already

familiar, then the consent ordinarily will be effective with regard to that type of conflict.

If the consent is general and open-ended, then the consent ordinarily will be ineffective,

because it is not reasonably likely that the client will have understood the material risks

involved. On the other hand, if the client is an experienced user of the legal services

involved and is reasonably informed regarding the risk that a conflict may arise, such

consent is more likely to be effective, particularly if, e.g., the client is independently

represented by other counsel in giving consent and the consent is limited to future

conflicts unrelated to the subject of the representation. In any case, advance consent

cannot be effective if the circumstances that materialize in the future are such as would

make the conflict nonconsentable under paragraph (b).

[23] Conflicts in Litigation. – Paragraph (b)(3) prohibits representation of

opposing parties in the same litigation, regardless of the clients' consent. On the other

hand, simultaneous representation of parties whose interests in litigation may conflict,

such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may

exist by reason of substantial discrepancy in the parties' testimony, incompatibility in

positions in relation to an opposing party or the fact that there are substantially different

possibilities of settlement of the claims or liabilities in question. Such conflicts can arise

in criminal cases as well as civil. 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 codefendant. On the other hand, common representation of

persons having similar interests in civil litigation is proper if the requirements of

paragraph (b) are met.

[24] 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 on 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 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-term 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.

[25] When a lawyer represents or seeks to represent a class of plaintiffs or

defendants in a class-action lawsuit, unnamed members of the class are ordinarily not

considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this

Rule. Thus, the lawyer does not typically need to get the consent of such a person before

representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking

to represent an opponent in a class action does not typically need the consent of an

unnamed member of the class whom the lawyer represents in an unrelated matter.

[26] Nonlitigation Conflicts. – Conflicts of interest under paragraphs (a)(1) and

(a)(2) arise in contexts other than litigation. For a discussion of directly adverse conflicts

in transactional matters, see Comment [7]. Relevant factors in determining whether there

is significant potential for material limitation 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 disagreements will arise and the likely prejudice to the

client from the conflict. The question is often one of proximity and degree. See Comment

[8].

[27] For example, conflict questions may arise in estate planning and estate

administration. A lawyer may be called upon to prepare wills for several family

members, such as husband and wife, and, depending upon the circumstances, a conflict of

interest may be present. In estate administration the identity of the client may be unclear

under the law of a particular jurisdiction. Under one view, the client is the fiduciary;

under another view the client is the estate or trust, including its beneficiaries. In order to

comply with conflict of interest rules, the lawyer should make clear the lawyer's

relationship to the parties involved.

[28] Whether a conflict is consentable depends on the circumstances. 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 in

interest among them. Thus, a lawyer may seek to establish or adjust a relationship

between clients on an amicable and mutually advantageous basis; for example, in helping

to organize a business in which two or more clients are entrepreneurs, working out the

financial reorganization of an enterprise in which two or more clients have an interest or

arranging a property distribution in settlement of an estate. The lawyer seeks to resolve

potentially adverse interests by developing the parties' mutual interests. Otherwise, each

party might have to obtain separate representation, with the possibility of incurring

additional cost, complication or even litigation. Given these and other relevant factors,

the clients may prefer that the lawyer act for all of them.

[29] Special Considerations in Common Representation. – In considering

whether to represent multiple clients in the same matter, a lawyer should be mindful that

if the common 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 common representation fails. In some situations, the risk of failure is so great that

multiple representation is plainly impossible. For example, a lawyer cannot undertake

common representation of clients where contentious litigation or negotiations between

them are imminent or contemplated. Moreover, because the lawyer is required to be

impartial between commonly represented clients, representation of multiple clients is

improper when it is unlikely that impartiality can be maintained. Generally, if the

relationship between the parties has already assumed antagonism, the possibility that the

clients' interests can be adequately served by common representation is not very good.

Other relevant factors are whether the lawyer subsequently will represent both parties on

a continuing basis and whether the situation involves creating or terminating a

relationship between the parties.

[30] A particularly important factor in determining the appropriateness of

common representation is the effect on client-lawyer confidentiality and the attorneyclient privilege. With regard to the attorney-client privilege, the prevailing rule is that, as

between commonly represented clients, the privilege does not attach. Hence, it must be

assumed that if litigation eventuates between the clients, the privilege will not protect any

such communications, and the clients should be so advised.

[31] As to the duty of confidentiality, continued common representation will

almost certainly be inadequate if one client asks the lawyer not to disclose to the other

client information relevant to the common representation. 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 the right

to expect that the lawyer will use that information to that client's benefit. See Rule 1.4.

The lawyer should, at the outset of the common representation and as part of the process

of obtaining each client's informed consent, advise each client that information will be

shared and that the lawyer will have to withdraw if one client decides that some matter

material to the representation should be kept from the other. In limited circumstances, 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. For example, the lawyer may reasonably conclude that failure to disclose

one client's trade secrets to another client will not adversely affect representation

involving a joint venture between the clients and agree to keep that information

confidential with the informed consent of both clients.

[32] When seeking to establish or adjust a relationship between clients, the lawyer

should make clear that the lawyer's role is not that of partisanship normally expected in

other circumstances and, thus, that the clients may be required to assume greater

responsibility for decisions than when each client is separately represented. Any

limitations on the scope of the representation made necessary as a result of the common

representation should be fully explained to the clients at the outset of the representation.

See Rule 1.2(c).

[33] Subject to the above limitations, each client in the common representation

has the right to loyal and diligent representation and the protection of Rule 1.9

concerning the obligations to a former client. The client also has the right to discharge the

lawyer as stated in Rule 1.16.

[34] Organizational Clients. – A lawyer who represents a corporation or other

organization does not, by virtue of that representation, necessarily represent any

constituent or affiliated organization, such as a parent or subsidiary. See Rule 1.13(a).

Thus, the lawyer for an organization is not barred from accepting representation adverse

to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate

should also be considered a client of the lawyer, there is an understanding between the

lawyer and the organizational client that the lawyer will avoid representation adverse to

the client's affiliates, or the lawyer's obligations to either the organizational client or the

new client are likely to limit materially the lawyer's representation of the other client.

[35] 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 or should cease to act as the corporation's lawyer when conflicts of

interest arise. The lawyer should advise the other members of the board that in some

circumstances matters discussed at board meetings while the lawyer is present in the

capacity of director might not be protected by the attorney-client privilege and that

conflict of interest considerations might require the lawyer's recusal as a director or might

require the lawyer and the lawyer's firm to decline representation of the corporation in a

matter.

Model Rules Comparison.-Rule 1.7 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except

for omitting the word “concurrent” in Rule 1.7(a) and (b) and Comment [1], and retaining

most of existing Maryland language in Comment [12].

Rule 1.8 Conflict of Interest: Current Clients: Specific Rules.

(a) A lawyer shall not enter into a business transaction with 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

in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is

given a reasonable opportunity to seek the advice of independent legal counsel on

the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to

the essential terms of the transaction and the lawyer’s role in the transaction,

including whether the lawyer is representing the client in the transaction.

(b) A lawyer shall not use information relating to representation of a client to the

disadvantage of the client unless the client gives informed consent, except as permitted or

required by these Rules.

testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a

person related to the lawyer any substantial gift unless the lawyer or other recipient of the

gift is related to the client. For purposes of this paragraph, related persons include a

spouse, child, grandchild, parent, grandparent or other relative or individual with whom

the lawyer or the client maintains a close, familial relationship.

(d) Prior to the conclusion of 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 for representing a client from one

other than the client unless:

(1) the client gives informed consent;

(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 Rule 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 each client gives

informed consent, in a writing signed by the client or confirmed on the record before a

tribunal. The lawyer’s disclosure shall include 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) make an agreement prospectively limiting the lawyer’s liability to a

client for malpractice unless the client is independently represented in making the

agreement; or

(2) settle a claim or potential claim for such liability with an unrepresented

client or former client unless that person is advised in writing of the desirability of

seeking and is given a reasonable opportunity to seek the advice of independent

legal counsel in connection therewith.

(i) 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 authorized by law to secure the lawyer's fee or expenses;

and

(2) subject to Rule 1.5, contract with a client for a reasonable contingent

fee in a civil case.

(j) While lawyers are associated in a firm, a prohibition in the foregoing

paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

COMMENT

[1] Business Transactions Between Client and Lawyer. – A lawyer's legal skill

and training, together with the relationship of trust and confidence between lawyer and

client, create the possibility of overreaching when the lawyer participates in a business,

property or financial transaction with a client, for example, a loan or sales transaction or a

lawyer investment on behalf of a client. The requirements of paragraph (a) must be met

even when the transaction is not closely related to the subject matter of the

representation, as when a lawyer drafting a will for a client learns that the client needs

money for unrelated expenses and offers to make a loan to the client. Paragraph (a) also

applies to lawyers purchasing property from estates they represent. It does not apply to

ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5,

although its requirements must be met when the lawyer accepts an interest in the client's

business or other nonmonetary property as payment of all or part of a fee. In addition, the

Rule does not apply to standard commercial transactions between the lawyer and the

client for products or services that the client generally markets to others, for example,

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. For restrictions regarding lawyers engaged in the sale of goods or services

related to the practice of law, see Rule 5.7.

[2] Paragraph (a)(1) requires that the transaction itself be fair to the client and that

its essential terms be communicated to the client, in writing, in a manner that can be

reasonably understood. Paragraph (a)(2) requires that the client also be advised, in

writing, of the desirability of seeking the advice of independent legal counsel. It also

requires that the client be given a reasonable opportunity to obtain such advice. Paragraph

(a)(3) requires that the lawyer obtain the client's informed consent, in a writing signed by

the client, both to the essential terms of the transaction and to the lawyer's role. When

necessary, the lawyer should discuss both the material risks of the proposed transaction,

including any risk presented by the lawyer's involvement, and the existence of reasonably

available alternatives and should explain why the advice of independent legal counsel is

desirable. See Rule 1.0(f) (definition of informed consent).

[3] The risk to a client is greatest when the client expects the lawyer to represent

the client in the transaction itself or when the lawyer's financial interest otherwise poses a

significant risk that the lawyer's representation of the client will be materially limited by

the lawyer's financial interest in the transaction. Here the lawyer's role requires that the

lawyer must comply, not only with the requirements of paragraph (a), but also with the

requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks associated

with the lawyer's dual role as both legal adviser and participant in the transaction, such as

the risk that the lawyer will structure the transaction or give legal advice in a way that

favors the lawyer's interests at the expense of the client. Moreover, the lawyer must

obtain the client's informed consent. In some cases, the lawyer's interest may be such that

Rule 1.7 will preclude the lawyer from seeking the client's consent to the transaction.

[4] If the client is independently represented in the transaction, paragraph (a)(2) of

this Rule is inapplicable, and the paragraph (a)(1) requirement for full disclosure is

satisfied either by a written disclosure by the lawyer involved in the transaction or by the

client's independent counsel. The fact that the client was independently represented in the

transaction is relevant in determining whether the agreement was fair and reasonable to

the client as paragraph (a)(1) further requires.

[5] Use of Information Related to Representation. – Use of information relating

to the representation to the disadvantage of the client violates the lawyer's duty of loyalty.

Paragraph (b) applies when the information is used to benefit either the lawyer or a third

person, such as another client or business associate of the lawyer. For example, if a

lawyer learns that a client intends to purchase and develop several parcels of land, the

lawyer may not use that information to purchase one of the parcels in competition with

the client or to recommend that another client make such a purchase. The Rule does not

prohibit uses that do not disadvantage the client. For example, a lawyer who learns a

government agency's interpretation of trade legislation during the representation of one

client may properly use that information to benefit other clients. Paragraph (b) prohibits

disadvantageous use of client information unless the client gives informed consent,

except as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b),

8.1 and 8.3.

[6] Gifts to Lawyers. – 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 a client offers the lawyer a more

substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although

such a gift may be voidable by the client under the doctrine of undue influence, which

treats client gifts as presumptively fraudulent. In any event, due to concerns about

overreaching and imposition on clients, a lawyer may not suggest that a substantial gift

be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the

client as set forth in paragraph (c).

[7] If effectuation of a substantial gift requires preparing a legal instrument such

as a will or conveyance, the client should have the detached advice that another lawyer

can provide. The sole exception to this Rule is where the client is a relative of the donee.

[8] This Rule does not prohibit a lawyer from seeking to have the lawyer or a

partner or associate of the lawyer named as executor of the client's estate or to another

potentially lucrative fiduciary position. Nevertheless, such appointments will be subject

to the general conflict of interest provision in Rule 1.7 when there is a significant risk that

the lawyer's interest in obtaining the appointment will materially limit the lawyer's

independent professional judgment in advising the client concerning the choice of an

executor or other fiduciary. In obtaining the client's informed consent to the conflict, the

lawyer should advise the client concerning the nature and extent of the lawyer's financial

interest in the appointment, as well as the availability of alternative candidates for the

position.

[9] Literary Rights. – 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 Rule 1.5 and

paragraphs (a) and (i).

[10] Financial Assistance. – Lawyers may not subsidize lawsuits or

administrative proceedings brought on behalf of their clients, including making or

guaranteeing loans to their clients for living expenses, because to do so would encourage

clients to pursue lawsuits that might not otherwise be brought and because such

assistance gives lawyers too great a financial stake in the litigation. These dangers do not

warrant a prohibition on a lawyer lending a client court costs and litigation expenses,

including the expenses of medical examination and the costs of obtaining and presenting

evidence, because these advances are virtually indistinguishable from contingent fees and

help ensure access to the courts. Similarly, an exception allowing lawyers representing

indigent clients to pay court costs and litigation expenses regardless of whether these

funds will be repaid is warranted.

[11] Person Paying for a Lawyer's Services. – Lawyers are frequently asked to

represent a client under circumstances in which a third person will compensate the

lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor

(such as a liability insurance company) or a co-client (such as a corporation sued along

with one or more of its employees). Because third-party payers frequently have interests

that differ from those of the client, including interests in minimizing the amount spent on

the representation and in learning how the representation is progressing, lawyers are

prohibited from accepting or continuing such representations unless the lawyer

determines that there will be no interference with the lawyer's independent professional

judgment and there is informed consent from the client. See also Rule 5.4(c) (prohibiting

interference with a lawyer's professional judgment by one who recommends, employs or

pays the lawyer to render legal services for another).

[12] Sometimes, it will be sufficient for the lawyer to obtain the client's informed

consent regarding the fact of the payment and the identity of the third-party payer. If,

however, the fee arrangement creates a conflict of interest for the lawyer, then the lawyer

must comply with Rule. 1.7. The lawyer must also conform to the requirements of Rule

1.6 concerning confidentiality. Under Rule 1.7(a), a conflict of interest exists if there is

significant risk that the lawyer's representation of the client will be materially limited by

the lawyer's own interest in the fee arrangement or by the lawyer's responsibilities to the

third-party payer (for example, when the third-party payer is a co-client). Under Rule

1.7(b), the lawyer may accept or continue the representation with the informed consent of

each affected client, unless the conflict is nonconsentable under that paragraph. Under

Rule 1.7(b), the informed consent must be confirmed in writing.

[13] Aggregate Settlements. – Differences in willingness to make or accept an

offer of settlement are among the risks of common representation of multiple clients by a

single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before

undertaking the representation, as part of the process of obtaining the clients' informed

consent. In addition, Rule 1.2(a) protects each client's right to have the final say in

deciding whether to accept or reject an offer of settlement and in deciding whether to

enter a guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph

is a corollary of both these Rules and provides that, before any settlement offer or plea

bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of

them about all the material terms of the settlement, including what the other clients will

receive or pay if the settlement or plea offer is accepted. See also Rule 1.0(f) (definition

of informed consent). Lawyers representing a class of plaintiffs or defendants, or those

proceeding derivatively, may not have a full client-lawyer relationship with each member

of the class; nevertheless, such lawyers must comply with applicable rules regulating

notification of class members and other procedural requirements designed to ensure

adequate protection of the entire class.

[14] Limiting Liability and Settling Malpractice Claims. – Agreements

prospectively limiting a lawyer's liability for malpractice are prohibited unless the client

is independently represented in making the agreement because they are likely to

undermine competent and diligent representation. Also, many clients are unable to

evaluate the desirability of making such an agreement before a dispute has arisen,

particularly if they are then represented by the lawyer seeking the agreement. This

paragraph does not, however, prohibit a lawyer from entering into an agreement with the

client to arbitrate legal malpractice claims, provided such agreements are enforceable and

the client is fully informed of the scope and effect of the agreement. Nor does this

paragraph limit the ability of lawyers to practice in the form of a limited-liability entity,

where permitted by law, provided that each lawyer remains personally liable to the client

for his or her own conduct and the firm complies with any conditions required by law,

such as provisions requiring client notification or maintenance of adequate liability

insurance. Nor does it prohibit an agreement in accordance with Rule 1.2 that defines the

scope of the representation, although a definition of scope that makes the obligations of

representation illusory will amount to an attempt to limit liability.

[15] Agreements settling a claim or a potential claim for malpractice are not

prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take unfair

advantage of an unrepresented client or former client, the lawyer must first advise such a

person in writing of the appropriateness of independent representation in connection with

such a settlement. In addition, the lawyer must give the client or former client a

reasonable opportunity to find and consult independent counsel.

[16] Acquiring Proprietary Interest in Litigation. – Paragraph (i) states the

traditional general rule that lawyers are prohibited from acquiring a proprietary interest in

litigation. Like paragraph (e), the general rule has its basis in common law champerty and

maintenance and is designed to avoid giving the lawyer too great an interest in the

representation. In addition, when the lawyer acquires an ownership interest in the subject

of the representation, it will be more difficult for a client to discharge the lawyer if the

client so desires. The Rule is subject to specific exceptions developed in decisional law

and continued in these Rules. The exception for certain advances of the costs of litigation

is set forth in paragraph (e). In addition, paragraph (i) sets forth exceptions for liens

authorized by law to secure the lawyer's fees or expenses and contracts for reasonable

contingent fees. The law of each jurisdiction determines which liens are authorized by

law. These may include liens granted by statute, liens originating in common law and

liens acquired by contract with the client. When a lawyer acquires by contract a security

interest in property other than that recovered through the lawyer's efforts in the litigation,

such an acquisition is a business or financial transaction with a client and is governed by

the requirements of paragraph (a). Contracts for contingent fees in civil cases are

governed by Rule 1.5.

[17] Imputation of Prohibitions. – Under paragraph (i), a prohibition on conduct

by an individual lawyer in paragraphs (a) through (i) also applies to all lawyers associated

in a firm with the personally prohibited lawyer. For example, one lawyer in a firm may

not enter into a business transaction with a client of another member of the firm without

complying with paragraph (a), even if the first lawyer is not personally involved in the

representation of the client.

Model Rules Comparison.-Rule 1.8 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, except

for wording changes to Rule 1.8(a), (g), (i)(2) and Comments [1] and [17], and the

omission of Model Rule 1.8(j) with appropriate redesignation of subsections.

Rule 1.9. Duties to Former Clients.

(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 gives informed consent, confirmed in writing.

(b) 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

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules

1.6 and 1.9(c) that is material to the matter;

unless the former client gives informed consent, confirmed in writing.

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 would permit or require with respect to a

client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules

would permit or require with respect to a client.

COMMENT

[1] After termination of a client-lawyer relationship, a lawyer has certain

continuing duties with respect to confidentiality and conflicts of interest and thus may not

represent another client except in conformity with this Rule. Under this Rule, for

example, a lawyer could not properly seek to rescind on behalf of a new client a contract

drafted on behalf of the former client. So also a lawyer who has prosecuted an accused

person could not properly represent the accused in a subsequent civil action against the

government concerning the same transaction. Nor could a lawyer who has represented

multiple clients in a matter represent one of the clients against the others in the same or a

substantially related matter after a dispute arose among the clients in that matter, unless

all affected clients give informed consent. See Comment [9]. Current and former

government lawyers must comply with this Rule to the extent required by Rule 1.11.

[2] The scope of a "matter" for purposes of this Rule depends on the facts of a

particular situation or transaction. The lawyer's involvement in a matter can also be a

question of degree. When a lawyer has been directly involved in a specific transaction,

subsequent representation of other clients with materially adverse interests in that

transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a

type of problem for a former client is not precluded for that reason alone from later

representing another client in a factually distinct problem of that type even though the

subsequent representation involves a position adverse to the prior client. Similar

considerations can apply to the reassignment of military lawyers between defense and

prosecution functions within the same military jurisdictions. The underlying question is

whether the lawyer was so involved in the matter that the subsequent representation can

be justly regarded as a changing of sides in the matter in question.

[3] Matters are "substantially related" for purposes of this Rule if they involve the

same transaction or legal dispute or if there otherwise is a substantial risk that

confidential factual information as would normally have been obtained in the prior

representation would materially advance the client's position in the subsequent matter.

For example, a lawyer who has represented a businessperson 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 seeking to oppose rezoning of the property on the basis of

environmental considerations; however, the lawyer would not be precluded, on the

grounds of substantial relationship, from defending a tenant of the completed shopping

center in resisting eviction for nonpayment of rent. Information that has been disclosed to

the public or to other parties adverse to the former client ordinarily will not be

disqualifying. Information acquired in a prior representation may have been rendered

obsolete by the passage of time, a circumstance that may be relevant in determining

whether two representations are substantially related. In the case of an organizational

client, general knowledge of the client's policies and practices ordinarily will not preclude

a subsequent representation; on the other hand, knowledge of specific facts gained in a

prior representation that are relevant to the matter in question ordinarily will preclude

such a representation. A former client is not required to reveal the confidential

information learned by the lawyer in order to establish a substantial risk that the lawyer

has confidential information to use in the subsequent matter. A conclusion about the

possession of such information may be based on the nature of the services the lawyer

provided the former client and information that would in ordinary practice be learned by

a lawyer providing such services.

[4] Lawyers Moving Between Firms. – 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.

[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved

has actual knowledge of information protected by Rules 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 Rule 1.10(b) for the

restrictions on a firm once a lawyer has terminated association with the firm.

[6] 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; it should

be inferred that such a lawyer in fact 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; in the absence of

information to the contrary, it should be inferred that such a lawyer in fact is privy to

information about the clients actually served but not those of other clients. In such an

inquiry, the burden of proof ordinarily rests upon the firm whose disqualification is

sought.

[7] 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 Rules 1.6 and 1.9(c).

[8] Paragraph (c) provides that information acquired by the lawyer in the course

of representing a client may not subsequently be used or revealed by the lawyer to the

disadvantage of the client. However, the fact that a lawyer has once served a client does

not preclude the lawyer from using generally known information about that client when

later representing another client.

[9] The provisions of this Rule are for the protection of former clients and can be

waived if the client gives informed consent, which consent must be confirmed in writing

under paragraphs (a) and (b). See Rule 1.0(f). With regard to the effectiveness of an

advance waiver, see Comment [22] to Rule 1.7. With regard to disqualification of a firm

with which a lawyer is or was formerly associated, see Rule 1.10.

Model Rules Comparison.-Rule 1.9 is substantially similar to the language of

the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except

for wording changes to Comments [2] and [6].

Rule 1.10. Imputation of Conflicts of Interest: General Rule.

(a) 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 Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the

prohibited lawyer and does not present a significant risk of materially limiting the

representation of the client by the remaining lawyers in the firm.

(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 Rules

1.6 and 1.9(c) that is material to the matter.

firm shall knowingly represent a person in a matter in which the newly associated lawyer

is disqualified under Rule 1.9 unless the personally disqualified lawyer is timely screened

from any participation in the matter and is apportioned no part of the fee therefrom.

(d) A disqualification prescribed by this rule may be waived by the affected client

under the conditions stated in Rule 1.7.

(e) The disqualification of lawyers associated in a firm with former or current

government lawyers is governed by Rule 1.11.

COMMENT

[1] Definition of "firm.” – A “firm” is defined in Rule 1.0(d). Whether two or

more lawyers constitute a firm within this definition can depend on the specific facts. See

Rule 1.0, Comments [2] - [4]. A lawyer is deemed associated with a firm if held out to be

a partner, principal, associate, of counsel, or similar designation. A lawyer ordinarily is

not deemed associated with a firm if the lawyer no longer practices law and is held out as

retired or emeritus. A lawyer employed for short periods as a contract attorney ordinarily

is deemed associated with the firm only regarding matters to which the lawyer gives

substantive attention.

[2] Principles of Imputed Disqualification . – The rule of imputed disqualification

stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to

lawyers who practice in a law firm. Such situations can be considered from the premise

that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty

to the client, or from the premise that each lawyer is vicariously bound by the obligation

of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a)

operates only among the lawyers currently associated in a firm. When a lawyer moves

from one firm to another, the situation is governed by Rules 1.9(b), 1.10(b) and 1.10(c).

[3] The rule in paragraph (a) does not prohibit representation where neither

questions of client loyalty nor protection of confidential information are presented.

Where one lawyer in a firm could not effectively represent a given client because of

strong political beliefs, for example, but that lawyer will do no work on the case and the

personal beliefs of the lawyer will not materially limit the representation by others in the

firm, the firm should not be disqualified. On the other hand, if an opposing party in a case

were owned by a lawyer in the law firm, and others in the firm would be materially

limited in pursuing the matter because of loyalty to that lawyer, the personal

disqualification of the lawyer would be imputed to all others in the firm.

[4] The rule in paragraph (a) also does not prohibit representation by others in the

law firm where the person prohibited from involvement in a matter is a nonlawyer, such

as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the

lawyer is prohibited from acting because of events before the person became a lawyer,

for example, work that the person did while a law student. Such persons, however,

ordinarily must be screened from any personal participation in the matter to avoid

communication to others in the firm of confidential information that both the nonlawyers

and the firm have a legal duty to protect. See Rules 1.0(m) and 5.3.

[5] Rule 1.10(b) operates to permit a law firm, under certain circumstances, to

represent a person with interests directly adverse to those of a client represented by a

lawyer who formerly was associated with the firm. The Rule applies regardless of when

the formerly associated lawyer represented the client. However, the law firm may not

represent a person with interests adverse to those of a present client of the firm, which

would violate Rule 1.7. Moreover, the firm may not represent the person where the

matter is the same or substantially related to that in which the formerly associated lawyer

represented the client and any other lawyer currently in the firm has material information

protected by Rules 1.6 and 1.9(c).

[6] Where the conditions of paragraph (c) are met, imputation is removed, and

consent to the new representation is not required. Lawyers should be aware, however,

that courts may impose more stringent obligations in ruling upon motions to disqualify a

lawyer from pending litigation.

[7] Requirements for screening procedures are stated in Rule 1.0(m). Paragraph

established by prior independent agreement, but that lawyer may not receive

compensation directly related to the matter in which the lawyer is disqualified.

[8] Rule 1.10(d) removes imputation with the informed consent of the affected

client or former client under the conditions stated in Rule 1.7. The conditions stated in

Rule 1.7 require the lawyer to determine that t

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