# Draft: March 25, 2005

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URL: https://www.frixlaw.com/law-library/documents/court_rules%3Aut%3Aea408368deee198c

## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

Draft: March 25, 2005
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Preamble: A Lawyer's Responsibilities.

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[1] A lawyer, is a representative of clients, an officer of the legal system and a public

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citizen having special responsibility for the quality of justice. Every lawyer is responsible

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to observe the law and the Rules of Professional Conduct, shall take the Attorney's

5

Oath upon admission to the practice of law, and shall be subject to the Rules of Lawyer

6

Discipline and Disability. as a member of the legal profession, is a representative of

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clients, an officer of the legal system and a public citizen having special responsibility

8

for the quality of justice.

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Attorney's Oath

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"I do solemnly swear that I will support, obey and defend the

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Constitution of the United States and the Constitution of this State; that I

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will discharge the duties of attorney and counselor at law as an officer of

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the courts of this State with honesty and fidelity; and that I will strictly

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observe the Rules of Professional Conduct promulgated by the Supreme

15

Court of the State of Utah."

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

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lawyer provides a client with an informed understanding of the client's legal rights and

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

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asserts the client's position under the rules of the adversary system. As negotiator, a

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lawyer seeks a result advantageous to the client but consistent with requirements of

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honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal

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affairs and reporting about them to the client or to others. A lawyer's representation of a

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client, including representation by appointment, does not constitute an endorsement of

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the client's political, economic, social or moral views or activities.

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[3] In addition to these representational functions, a lawyer may serve as a third-

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party neutral, a nonrepresentational role helping the parties to resolve a dispute or other

27

matter. Some of these Rules apply directly to lawyers who are or have served as third-

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party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are rules that apply to

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

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

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

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

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[4] In all professional functions a lawyer should be competent, prompt and diligent. A

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lawyer should maintain communication with a client concerning the representation. A

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lawyer should keep in confidence information relating to representation of a client

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except so far as disclosure is required or permitted by the Rules of Professional

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Conduct or other law.

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[5] A lawyer's conduct should conform to the requirements of the law, both in

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professional service to clients and in the lawyer's business and personal affairs. A

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lawyer should use the law's procedures only for legitimate purposes and not to harass

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or intimidate others. A lawyer should demonstrate respect for the legal system and for

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those who serve it, including judges, other lawyers and public officials. While it is a

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lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a

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lawyer's duty to uphold legal process.

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[6] As a public citizen, a lawyer should seek improvement of the law, access to the

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legal system, the administration of justice and the quality of service rendered by the

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legal profession. As a member of a learned profession, a lawyer should cultivate

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knowledge of the law beyond its use for clients, employ that knowledge in reform of the

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law and work to strengthen legal education. In addition, a lawyer should further the

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

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because legal institutions in a constitutional democracy depend on popular participation

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and support to maintain their authority. A lawyer should be mindful of deficiencies in the

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administration of justice and of the fact that the poor, and sometimes persons who are

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not poor, cannot afford adequate legal assistance and therefore, all lawyers should

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devote professional time and resources and use civic influence in their behalf to ensure

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equal access to our system of justice for all those who because of economic or social

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barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal

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profession in pursuing these objectives and should help the Bbar regulate itself in the

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public interest.

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[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of

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Professional Conduct, as well as substantive and procedural law. However, a lawyer is

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also guided by personal conscience and the approbation of professional peers. A lawyer

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should strive to attain the highest level of skill, to improve the law and the legal

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profession and to exemplify the legal profession's ideals of public service.

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[8] A lawyer's responsibilities as a representative of clients, an officer of the legal

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system and a public citizen are usually harmonious. Thus, when an opposing party is

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well represented, a lawyer can be a zealous advocate on behalf of a client and at the

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same time assume that justice is being done. So also, a lawyer can be sure that

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preserving client confidences ordinarily serves the public interest because people are

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more likely to seek legal advice, and thereby heed their legal obligations, when they

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know their communications will be private.

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[9] In the nature of law practice, however, conflicting responsibilities are

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encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's

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responsibilities to clients, to the legal system and to the lawyer's own interest in

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remaining an ethical person while earning a satisfactory living. The Rules of

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

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framework of these Rules, however, many difficult issues of professional discretion can

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arise. Such issues must be resolved through the exercise of sensitive professional and

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moral judgment guided by the basic principles underlying the Rules. These principles

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

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interests, within the bounds of the adversarial system, while maintaining a professional,

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courteous and civil attitude toward all persons involved in the legal system.

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[10] The legal profession is largely self-governing. Although other professions also

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have been granted powers of self-government, the legal profession is unique in this

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respect because of the close relationship between the profession and the processes of

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government and law enforcement. This connection is manifested in the fact that ultimate

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authority over the legal profession is vested largely in the courts.

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[11] To the extent that lawyers meet the obligations of their professional calling, the

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occasion for government regulation is obviated. Self-regulation also helps maintain the

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legal profession's independence from government domination. An independent legal

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profession is an important force in preserving government under law, for abuse of legal

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authority is more readily challenged by a profession whose members are not dependent

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on government for the right to practice.

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[12] The legal profession's relative autonomy carries with it special responsibilities of

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self-government. The profession has a responsibility to asensure that its regulations are

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conceived in the public interest and not in furtherance of parochial or self-interested

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concerns of the bBar.

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Professional Conduct. A lawyer should also aid in securing their observance by other

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lawyers. Neglect of these responsibilities compromises the independence of the

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profession and the public interest which it serves.

Every lawyer is responsible for observance of the Rules of

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[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role

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requires an understanding by lawyers of their relationship to our legal system. The

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Rules of Professional Conduct, when properly applied, serve to define that relationship.

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Scope.

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[14] The Rules of Professional Conduct are rules of reason. They should be

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interpreted with reference to the purposes of legal representation and of the law itself.

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Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define

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proper conduct for purposes of professional discipline. Others, generally cast in the term

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"may," are permissive and define areas under the Rules in which the lawyer has

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discretion to exercise professional judgment. No disciplinary action should be taken

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when the lawyer chooses not to act or acts within the bounds of such discretion. Other

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Rules define the nature of relationships between the lawyer and others. The Rules are

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thus partly obligatory and disciplinary and partly constitutive and descriptive in that they

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define a lawyer's professional role. Many of the Comments use the term "should."

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Comments do not add obligations to the Rules but provide guidance for practicing in

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compliance with the Rules.

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[15] The Rules presuppose a larger legal context shaping the lawyer's role. That

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context includes court rules and statutes relating to matters of licensure, laws defining

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specific obligations of lawyers and substantive and procedural law in general. The

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

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other law.

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[16] Compliance with the Rules, as with all law in an open society, depends primarily

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upon understanding and voluntary compliance, secondarily upon reinforcement by peer

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and public opinion and finally, when necessary, upon enforcement through disciplinary

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proceedings. The Rules do not, however, exhaust the moral and ethical considerations

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that should inform a lawyer, for no worthwhile human activity can be completely defined

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by legal rules. The Rules simply provide a framework for the ethical practice of law.

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[17] Furthermore, for purposes of determining the lawyer's authority and

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responsibility, principles of substantive law external to these Rules determine whether a

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client-lawyer relationship exists. Most of the duties flowing from the client-lawyer

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relationship attach only after the client has requested the lawyer to render legal services

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and the lawyer has agreed to do so. But there are some duties, such as that of

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confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a

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

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

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be a question of fact.

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

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law, the responsibilities of government lawyers may include authority concerning legal

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matters that ordinarily reposes in the client in private client-lawyer relationships. For

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example, a lawyer for a government agency may have authority on behalf of the

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government to decide upon settlement or whether to appeal from an adverse judgment.

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Such authority in various respects is generally vested in the attorney general and the

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

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

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officers

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intragovernmental legal controversies in circumstances where a private lawyer could not

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

may

be

authorized

to

represent

several

government

agencies

in

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[19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis

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for invoking the disciplinary process. The Rules presuppose that disciplinary

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assessment of a lawyer's conduct will be made on the basis of the facts and

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circumstances as they existed at the time of the conduct in question and in recognition

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of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the

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situation. Moreover, the Rules presuppose that whether or not discipline should be

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imposed for a violation, and the severity of a sanction, depend on all the circumstances,

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such as the willfulness and seriousness of the violation, extenuating factors and

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whether there have been previous violations.

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

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

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

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

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Rules are designed to provide guidance to lawyers and to provide a structure for

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regulating conduct through disciplinary agencies. They are not designed to be a basis

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for civil liability. Furthermore, the purpose of the Rules can be subverted when they are

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invoked by opposing parties as procedural weapons. The fact that a rRule is a just basis

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for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a

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disciplinary authority, does not imply that an antagonist in a collateral proceeding or

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transaction has standing to seek enforcement of the Rrule. Nevertheless, since the

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Rules do establish standards of conduct by lawyers, a lawyer’s violation of a rule may

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be evidence of breach of applicable standard of conduct.

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[21] The Ccomment accompanying each Rrule explains and illustrates the meaning

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and purpose of the Rrule. The Preamble and this note on Scope provide general

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orientation. The Ccomments are intended as guides to interpretation, but the text of

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each Rrule is authoritative.

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1

Rule 1.0. Terminology.

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(a) “Belief” or “believes” denotes that the person involved actually supposed the fact

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in question to be true. A person's belief may be inferred from circumstances.

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

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

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

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

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

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obtain or transmit it within a reasonable time thereafter.

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(c) “Consult” or “consultation” denotes communication of information reasonably
sufficient to permit the client to appreciate the significance of the matter in question.

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(d) “Firm” or “law firm” denotes a lawyer or lawyers in a private firm, law partnership,

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professional corporation, sole proprietorship or other association authorized to practice

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

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corporation or other organization and lawyers employed in a legal services organization.

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See Comment, Rule 1.10.

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(e)

“Fraud” or “fraudulent” denotes conduct having that is fraudulent under the

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

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and not merely negligent misrepresentation or failure to apprise another of relevant

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information.

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

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conduct after the lawyer has communicated adequate information and explanation

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

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of conduct.

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(g)

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“Knowingly,” “known” or “knows” denotes actual knowledge of the fact in

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

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(h) “Partner” denotes a member of a partnership and, a shareholder in a law firm

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

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practice law.

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(i)

“Reasonable” or “reasonably” when used in relation to conduct by a lawyer

denotes the conduct of a reasonably prudent and competent lawyer.

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(j) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer

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denotes that the lawyer believes the matter in question and that the circumstances are

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such that the belief is reasonable.

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(k) “Reasonably should know” when used in reference to a lawyer denotes that a

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lawyer of reasonable prudence and competence would ascertain the matter in question.

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

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

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

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protect under these Rules or other law.

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42

(m) “Substantial” when used in reference to degree or extent denotes a material
matter of clear and weighty importance.

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

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

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

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

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

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particular matter.

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

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or

representation,

including

handwriting,

typewriting,

printing,

photostating,

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

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

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

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Comment

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Confirmed in Writing

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[1] If it is not feasible to obtain or transmit a written confirmation at the time the

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client gives informed consent, then the lawyer must obtain or transmit it within a

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reasonable time thereafter. If a lawyer has obtained a client's informed consent, the

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lawyer may act in reliance on that consent so long as it is confirmed in writing within a

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reasonable time thereafter.

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Firm

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[2] Whether two or more lawyers constitute a firm within paragraph (d) can depend

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

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

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

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suggests that they are a firm or conduct themselves as a firm, they should be regarded

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as a firm for purposes of these Rules. The terms of any formal agreement between

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associated lawyers are relevant in determining whether they are a firm, as is the fact

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that they have mutual access to information concerning the clients they serve.

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Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the

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rule that is involved. A group of lawyers could be regarded as a firm for purposes of the

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rule that the same lawyer should not represent opposing parties in litigation, while it

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might not be so regarded for purposes of the rule that information acquired by one

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lawyer is attributed to another.

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

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there is ordinarily no question that the members of the department constitute a firm

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within the meaning of the Rules of Professional Conduct. There can be uncertainty,

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

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law department of a corporation represents a subsidiary or an affiliated corporation, as

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well as the corporation by which the members of the department are directly employed.

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A similar question can arise concerning an unincorporated association and its local

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affiliates.

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

84

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

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

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these Rules.

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Fraud

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[5] When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct that

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is characterized as such under the substantive or procedural law of the applicable

90

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

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misrepresentation or negligent failure to apprise another of relevant information. For

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purposes of these Rules, it is not necessary that anyone has suffered damages or relied

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on the misrepresentation or failure to inform.

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Informed Consent

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[6] Many of the Rules of Professional Conduct require the lawyer to obtain the

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informed consent of a client or other person (e.g., a former client or, under certain

97

circumstances, a prospective client) before accepting or continuing representation or

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

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communication necessary to obtain such consent will vary according to the rule involved

100

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

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

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

103

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

104

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

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

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conduct and a discussion of the client's or other person's options and alternatives. In

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

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person to seek the advice of other counsel. A lawyer need not inform a client or other

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person of facts or implications already known to the client or other person; nevertheless,

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a lawyer who does not personally inform the client or other person assumes the risk that

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the client or other person is inadequately informed and the consent is invalid. In

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determining whether the information and explanation provided are reasonably

113

adequate, relevant factors include whether the client or other person is experienced in

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legal matters generally and in making decisions of the type involved, and whether the

115

client or other person is independently represented by other counsel in giving the

116

consent. Normally, such persons need less information and explanation than others,

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and generally a client or other person who is independently represented by other

118

counsel in giving the consent should be assumed to have given informed consent.

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

120

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

121

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

122

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

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123

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

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

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Other rules require that a client's consent be obtained in a writing signed by the client.

126

See, e.g., Rules 1.8(a) and (g). For a definition of “signed,” see paragraph (o).

127

Screened

128

[8] This definition applies to situations where screening of a personally disqualified

129

lawyer is permitted to remove imputation of a conflict of interest under Rules 1.11, 1.12

130

or 1.18.

131

[9]

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

132

information known by the personally disqualified lawyer remains protected. The

133

personally disqualified lawyer should acknowledge the obligation not to communicate

134

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

135

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

136

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

137

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

138

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

139

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

140

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

141

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

142

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

143

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

144

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

145

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

146

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

147

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

148

need for screening.

149

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1

Rule 1.1. Competence.

2

A lawyer shall provide competent representation to a client. Competent

3

representation requires the legal knowledge, skill, thoroughness and preparation

4

reasonably necessary for the representation.

5

Comment

6

Legal Knowledge and Skill

7

[1] In determining whether a lawyer employs the requisite knowledge and skill in a

8

particular matter, relevant factors include the relative complexity and specialized nature

9

of the matter, the lawyer's general experience, the lawyer's training and experience in

10

the field in question, the preparation and study the lawyer is able to give the matter and

11

whether it is feasible to refer the matter to, or associate or consult with, a lawyer of

12

established competence in the field in question. In many instances, the required

13

proficiency is that of a general practitioner. Expertise in a particular field of law may be

14

required in some circumstances.

15

[2] A lawyer need not necessarily have special training or prior experience to handle

16

legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer

17

can be as competent as a practitioner with long experience. Some important legal skills,

18

such as the analysis of precedent, the evaluation of evidence and legal drafting, are

19

required in all legal problems. Perhaps the most fundamental legal skill consists of

20

determining what kind of legal problems a situation may involve, a skill that necessarily

21

transcends any particular specialized knowledge. A lawyer can provide adequate

22

representation in a wholly novel field through necessary study. Competent

23

representation can also be provided through the association of a lawyer of established

24

competence in the field in question.

25

[3] In an emergency a lawyer may give advice or assistance in a matter in which the

26

lawyer does not have the skill ordinarily required where referral to or consultation or

27

association with another lawyer would be impractical. Even in an emergency, however,

28

assistance should be limited to that reasonably necessary in the circumstances, for

29

ill-considered action under emergency conditions can jeopardize the client's interest.

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30

[4] A lawyer may accept representation where the requisite level of competence can

31

be achieved by reasonable preparation. This applies as well to a lawyer who is

32

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

33

Thoroughness and Preparation

34

[5] Competent handling of a particular matter includes inquiry into and analysis of

35

the factual and legal elements of the problem and use of methods and procedures

36

meeting the standards of competent practitioners. It also includes adequate preparation.

37

The required attention and preparation are determined in part by what is at stake; major

38

litigation and complex transactions ordinarily require more extensive treatment than

39

matters of lesser complexity and consequence. An agreement between the lawyer and

40

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

41

lawyer is responsible. See Rule 1.2(c).

42

Maintaining Competence

43

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of

44

changes in the law and its practice, engage in continuing study and education and

45

comply with all continuing legal education requirements to which the lawyer is subject.

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Draft: March 25, 2005
1
2

Rule 1.2. Scope of Rrepresentation and Allocation of Authority Between Client and
Lawyer.

3

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

4

concerning the objectives of representation, subject to paragraphs (b), (c), (d), and and,

5

as required by Rule 1.4, shall consult with the client as to the means by which they are

6

to be pursued. A lawyer may take such action on behalf of the client as is impliedly

7

authorized to carry out the representation. A lawyer shall abide by a client's decision

8

whether to accept an offer of settlement of settle a matter. In a criminal case, a the

9

lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea

10

to be entered, whether to waive jury trial and whether the client will testify.

11

(b) A lawyer’s representation of a client, including representation by appointment,

12

does not constitute an endorsement of the client’s political, economic, social or moral

13

views or activities.

14

(c)

A lawyer may limit the objectives scope of the representation if the client

15

consents after consultation limitation is reasonable under the circumstances and the

16

client gives informed consent.

17

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

18

the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal

19

consequences of any proposed course of conduct with a client and may counsel or

20

assist a client to make a good faith effort to determine the validity, scope, meaning or

21

application of the law.

22

(d) When a lawyer knows that a client expects assistance not permitted by the

23

Rules of Professional Conduct or other law, the lawyer shall consult with the client

24

regarding the relevant limitations on the lawyer's conduct.

25

Comment

26

Scope of Representation

27

Allocation of Authority between Client and Lawyer

28

[1] Both lawyer and client have authority and responsibility in the objectives and

29

means of representation. The client has Paragraph (a) confers upon the client the

30

ultimate authority to determine the purposes to be served by legal representation, within

31

the limits imposed by law and the lawyer's professional obligations. Within those limits,

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Draft: March 25, 2005
32

a client also has a right to consult with the lawyer The decisions specified in paragraph

33

(a), such as whether to settle a civil matter, must also be made by the client. See Rule

34

1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions.

35

With respect to the means by which the client’s objectives are to be pursued, the lawyer

36

shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is

37

impliedly authorized to carry out the representation.

38

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

39

be used in pursuing those objectives. At the same time, a lawyer is not required to

40

pursue objectives or employ means simply because a client may wish that the lawyer do

41

so. A clear distinction between objectives and means sometimes cannot be drawn, and

42

in many cases the client-lawyer relationship partakes of a joint undertaking. In questions

43

of means, the lawyer should assume responsibility for technical and legal tactical issues

44

but should to accomplish the client’s objectives. Clients normally defer to the special

45

knowledge and skill of their lawyer with respect to the means to be used to accomplish

46

their objectives, particularly with respect to technical, legal and tactical matters.

47

Conversely, lawyers usually defer to the client regarding such questions as the expense

48

to be incurred and concern for third persons who might be adversely affected. Law

49

defining the lawyer's scope of authority in litigation varies among jurisdictions. Because

50

of the varied nature of the matters about which a lawyer and client might disagree and

51

because the actions in question may implicate the interests of a tribunal or other

52

persons, this Rule does not prescribe how such disagreements are to be resolved.

53

Other law, however, may be applicable and should be consulted by the lawyer. The

54

lawyer should also consult with the client and seek a mutually acceptable resolution of

55

the disagreement. If such efforts are unavailing and the lawyer has a fundamental

56

disagreement with the client, the lawyer may withdraw from the representation. See

57

Rule 1.16(b)(3). Conversely, the client may resolve the disagreement by discharging

58

the lawyer. See Rule 1.16(a)(3).

59

Services Limited in Objectives or Means

60

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

61

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

15

Draft: March 25, 2005
62

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

63

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

64

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

65

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

66

Independence from Client’s Views or Activities

67

[5]

Legal representation should not be denied to people who are unable to afford

68

legal services or whose cause is controversial or the subject of popular disapproval. By

69

the same token, representing a client does not constitute approval of the client’s views

70

or activities.

71

Agreements Limiting Scope of Representation

72

[6] The objectives or scope of services The scope of services to be provided by a

73

lawyer may be limited by agreement with the client or by the terms under which the

74

lawyer's services are made available to the client. For example, a retainer may be for a

75

specifically defined purpose. Representation provided through a legal aid agency may

76

be subject to limitations on the types of cases the agency handles. When a lawyer has

77

been retained by an insurer to represent an insured, for example, the representation

78

may be limited to matters related to the insurance coverage. TheA limited

79

representation may be appropriate because the client has limited objectives for the

80

representation. In addition, the terms upon which representation is undertaken may

81

exclude specific objectives or means means that might otherwise be used to accomplish

82

the client’s objectives. Such limitations may exclude objectives or means actions that

83

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

84

[7] Although this Rule affords the lawyer and client substantial latitude to limit the

85

representation, the limitation must be reasonable under the circumstances.

86

example, a client’s objective is limited to securing general information about the law the

87

client needs in order to handle a common and typically uncomplicated legal problem,

88

the lawyer and client may agree that the lawyer’s services will be limited to a brief

89

telephone consultation. Such a limitation, however, would not be reasonable if the time

90

allotted were not sufficient to yield advice upon which the client could rely. Although an

91

agreement for a limited representation does not exempt a lawyer from the duty to

92

provide competent representation, the limitation is a factor to be considered when

16

If, for

Draft: March 25, 2005
93

determining the legal knowledge, skill, thoroughness and preparation reasonably

94

necessary for the representation. See Rule 1.1.

95

[8]

All agreements concerning a lawyer’s representation of a client An agreement

96

concerning the scope of representation must accord with the Rules of Professional

97

Conduct and other law. Thus, the client may not be asked to agree to representation so

98

limited in scope as to violate Rule 1.1 or to surrender the right to terminate the lawyer's

99

services or the right to settle litigation that the lawyer might wish to continue See, e.g.,

100

Rules 1.1, 1.8 and 5.6.

101

Criminal, Fraudulent and Prohibited Transactions

102

A lawyer is required to give [9] Paragraph (d) prohibits a lawyer from knowingly

103

counseling or assisting a client to commit a crime or fraud. This prohibition, however,

104

does not preclude the lawyer from giving an honest opinion about the actual

105

consequences that appear likely to result from a client's conduct. The Nor does the fact

106

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

107

itself, make a lawyer a party to the course of action. However, a lawyer may not

108

knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction

109

between presenting an analysis of legal aspects of questionable conduct and

110

recommending the means by which a crime or fraud might be committed with impunity.

111

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

112

lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the

113

client's wrongdoing, except where permitted by Rule 1.6. However, the lawyer is

114

required to avoid furthering the purpose, for example, by suggesting how it assisting the

115

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

116

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

117

continue assisting a client in conduct that the lawyer originally supposes is supposed

118

was legally proper but then discovers is criminal or fraudulent. Withdrawal The lawyer

119

must, therefore, withdraw from the representation, therefore, may be required. of the

120

client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be

121

insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal

122

and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

17

Draft: March 25, 2005
123
124

[11]

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

obligations in dealings with the a beneficiary.

125

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

126

transaction. Hence, a lawyer should must not participate in a sham transaction, for

127

example, a transaction to effectuate criminal or fraudulent escape avoidance of tax

128

liability. Paragraph (c)(d) does not preclude undertaking a criminal defense incident to a

129

general retainer for legal service services to a lawful enterprise. The last clause of

130

paragraph (c)(d) recognizes that determining the validity or interpretation of a statute or

131

regulation may require a course of action involving disobedience of the statute or

132

regulation or of the interpretation placed upon it by governmental authorities.

133

[13] If a lawyer comes to know or reasonably should know that a client expects

134

assistance not permitted by the Rules of Professional Conduct or other law or if the

135

lawyer intends to act contrary to the client’s instructions, the lawyer must consult with

136

the client regarding the limitations on the lawyer’s conduct. See Rule 1.4(a)(5).

137

18

Draft: March 25, 2005
1

Rule 1.3. Diligence.

2

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

3

Comment

4

[1]

A lawyer should pursue a matter on behalf of a client despite opposition,

5

obstruction or personal inconvenience to the lawyer and may take whatever lawful and

6

ethical measures are required to vindicate a client's cause or endeavor. A lawyer should

7

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

8

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

9

for every advantage that might be realized for a client. For example, A a lawyer has may

10

have authority to exercise professional discretion in determining the means by which a

11

matter should be pursued. See Rule 1.2. A The lawyer's duty to act with reasonable

12

diligence does not require the use of offensive tactics or preclude the treating of all

13

persons involved in the legal process with courtesy and respect.

14
15
16

[2] A lawyer’s work load should must be controlled so that each matter can be
handled adequately competently.
[3]

Clients resent Perhaps no professional procrastination shortcoming is more

17

widely resented than procrastination. A client's interests often can be adversely affected

18

by the passage of time or the change of conditions; in extreme instances, as when a

19

lawyer overlooks a statute of limitations, the client's legal position may be destroyed.

20

Even when the client's interests are not affected in substance, however, unreasonable

21

delay can cause a client needless anxiety and undermine confidence in the lawyer's

22

trustworthiness. A lawyer’s duty to act with reasonable promptness, however, does not

23

preclude the lawyer from agreeing to a reasonable request for a postponement that will

24

not prejudice the lawyer’s client.

25

[4] Unless the relationship is terminated as provided in Rule 1.141.16, a lawyer

26

should carry through to conclusion all matters undertaken for a client. If a lawyer's

27

employment is limited to a specific matter, the relationship terminates when the matter

28

has been resolved. If a lawyer has served a client over a substantial period in a variety

29

of matters, the client sometimes may assume that the lawyer will continue to serve on a

30

continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a

31

client-lawyer relationship still exists should be clarified by the lawyer, preferably in

19

Draft: March 25, 2005
32

writing, so that the client will not mistakenly suppose the lawyer is looking after the

33

client's affairs when the lawyer has ceased to do so. For example, if a lawyer has

34

handled a judicial or administrative proceeding that produced a result adverse to the

35

client and the lawyer and the client have not agreed that the lawyer will handle the

36

matter onbut has not been specifically instructed concerning pursuit of an appeal, the

37

lawyer should advise must consult with the client about of the possibility of appeal

38

before relinquishing responsibility for the matter.

39

lawyer is obligated to prosecute the appeal for the client depends on the scope of the

40

representation the lawyer has agreed to provide to the client. See Rule 1.2.

See Rule 1.4(a)(2). Whether the

41

[5] To prevent neglect of client matters in the event of a lawyer’s death or disability,

42

the duty of diligence may require that each lawyer prepare a plan, in conformity with

43

applicable rules, that designates another competent lawyer to review client files, notify

44

each client of the lawyer’s death or disability, and determine whether there is a need for

45

immediate protective action. Cf. Rule 27 of the Utah Rules for Lawyer Discipline and

46

Disability (providing for court appointment of a lawyer to inventory files and take other

47

protective action in absence of a plan providing for another lawyer to protect the

48

interests of the clients of a deceased or disabled lawyer).

49

[5a] Comment [5] to ABA Model Rule 1.3 refers to the duty of diligence for sole

50

practitioners only. Utah Comment [5] does not distinguish between sole practitioners

51

and lawyers practicing in a firm or other organization.

52
53

20

Draft: March 25, 2005
1

Rule 1.4. Communication.

2

(a) A lawyer shall:

3

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

4

which the client=s

5

informed consent, as defined in Rule 1.0(e), is required by these Rules;

6

(a)(2)

7

reasonably consult with the client about the means by which the client=s

objectives are to be accomplished;

8

(a)(3) keep a the client reasonably informed about the status of a the matter; and

9

(a)(4) promptly comply with reasonable requests for information; and.

10

(a)(5) consult with the client about any relevant limitation on the lawyer’s conduct

11

when the lawyer knows that the client expects assistance not permitted by the Rules of

12

Professional Conduct or other law.

13
14

(b) A lawyer shall explain a matter to the extent reasonably necessary to enable
permit the client to make informed decisions regarding the representation.

15

Comment

16

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

17

the client effectively to participate in the representation.

18

Communicating with Client

19

[2] If these Rules require that a particular decision about the representation be

20

made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and

21

secure the client=s consent prior to taking action unless prior discussions with the client

22

have resolved what action the client wants the lawyer to take. The client should have

23

sufficient information to participate intelligently in decisions concerning the objectives of

24

the representation and the means by which they are to be pursued, to the extent the

25

client is willing and able to do so. For example, a lawyer negotiating on behalf of a client

26

should provide the client with facts relevant to the matter, inform the client of

27

communications from another party and take other reasonable steps that permit the

28

client to make a decision regarding a serious offer from another party. A lawyer who

29

receives from opposing counsel an offer of settlement in a civil controversy or a

30

proffered plea bargain in a criminal case shall must promptly inform the client of its

31

substance unless prior discussions with the client have left it clear

21

the client has

Draft: March 25, 2005
32

previously indicated that the proposal will be unacceptable. See Rule 1.2(a). Even when

33

a client delegates authority to the lawyer, the client should be kept advised of

34

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

35

See Rule 1.2(a).

36

[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about

37

the means to be used to accomplish the client=s objectives. In some situations C

38

depending on both the importance of the action under consideration and the feasibility

39

of consulting with the client C this duty will require consultation prior to taking action. In

40

other circumstances, such as during a trial when an immediate decision must be made,

41

the exigency of the situation may require the lawyer to act without prior consultation. In

42

such cases the lawyer must nonetheless act reasonably to inform the client of actions

43

the lawyer has taken on the client=s behalf. Additionally, paragraph (a)(3) requires that

44

the lawyer keep the client reasonably informed about the status of the matter, such as

45

significant developments affecting the timing or the substance of the representation.

46

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

47

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

48

client makes a reasonable request for information, however, paragraph (a)(4) requires

49

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

50

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

51

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

52

promptly returned or acknowledged.

53

Explaining Matters

54

[5]

The client should have sufficient information to participate intelligently in

55

decisions concerning the objectives of the representation and the means by which they

56

are to be pursued, to the extent the client is willing and able to do so. Adequacy of

57

communication depends in part on the kind of advice or assistance that is involved. For

58

example, in negotiations where when there is time to explain a proposal made in a

59

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

60

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

61

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

62

are likely to result in significant expense or to injure or coerce others. On the other

22

Draft: March 25, 2005
63

hand, a lawyer ordinarily cannot will not be expected to describe trial or negotiation

64

strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client

65

expectations for information, whether written or oral, consistent with the duty to act in

66

the client's best interest interests and the client's overall requirements as to the

67

character of representation. In certain circumstances, such as when a lawyer asks a

68

client to consent to a representation affected by a conflict of interest, the client must

69

give informed consent, as defined in Rule 1.0(e).

70

[6] Ordinarily, the information to be provided is that appropriate for a client who is a

71

comprehending and responsible adult. However, fully informing the client according to

72

this standard may be impracticable, for example, where the client is a child or suffers

73

from mental disability diminished capacity.

74

organization or group, it is often impossible or inappropriate to inform every one of its

75

members about its legal affairs; ordinarily, the lawyer should address communications

76

to the appropriate officials of the organization. See Rule 1.13. Where many routine

77

matters are involved, a system of limited or occasional reporting may be arranged with

78

the client. Practical exigency may also require a lawyer to act for a client without prior

79

consultation.

See Rule 1.14. When the client is an

80

Withholding Information

81

[7] In some circumstances, a lawyer may be justified in delaying transmission of

82

information when the client would be likely to react imprudently to an immediate

83

communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when

84

the examining psychiatrist indicates that disclosure would harm the client. A lawyer may

85

not withhold information to serve the lawyer's own interest or convenience or the

86

interests or convenience of another person. Rules or court orders governing litigation

87

may provide that information supplied to a lawyer may not be disclosed to the client.

88

Rule 3.4(c) directs compliance with such rules or orders.

89

23

Draft: March 25, 2005
1

Rule 1.5. Fees.

2

(a) A lawyer shall not enter into make an agreement for, charge or collect an illegal

3

or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a

4

lawyer of ordinary prudence would be left with a definite and firm conviction that the fee

5

is in excess of a reasonable fee unreasonable fee or an unreasonable amount for

6

expenses.

7

reasonableness of a fee include the following:

8
9
10
11

Factors The factors to be considered as guides in determining the

(a)(1) Tthe time and labor required, the novelty and difficulty of the questions
involved and the skill requisite to perform the legal service properly;
(a)(2) Tthe likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;

12

(a)(3) Tthe fee customarily charged in the locality for similar legal services;

13

(a)(4) Tthe amount involved and the results obtained;

14

(a)(5) Tthe time limitations imposed by the client or by the circumstances;

15

(a)(6) Tthe nature and length of the professional relationship with the client;

16

(a)(7) Tthe experience, reputation and ability of the lawyer or lawyers performing the

17

services; and

18

(a)(8) Wwhether the fee is fixed or contingent.

19

(b) When the lawyer has not regularly represented the client, and it is reasonably

20

foreseeable that total attorneys fees to the client will exceed $750.00, The scope of the

21

representation and the basis or rate of the fee and expenses for which the client will be

22

responsible shall be communicated to the client, preferably in writing, before or within a

23

reasonable time after commencing the representation, except when the lawyer will

24

charge a regularly represented client on the same basis or rate. Any changes in the

25

basis or rate of the fee or expenses shall also be communicated to the client.

26

(c) A fee may be contingent on the outcome of the matter for which the service is

27

rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or

28

other law. A contingent fee agreement shall be in a writing signed by the client and shall

29

state the method by which the fee is to be determined, including the percentage or

30

percentages that shall accrue to the lawyer in the event of settlement, trial or appeal,;

31

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

24

Draft: March 25, 2005
32

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

33

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

34

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

35

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

36

outcome of the matter and, if there is a recovery, showing the remittance to the client

37

and the method of its determination.

38

(d) A lawyer shall not enter into an arrangement for, charge or collect:

39

(d)(1) Aany fee in a domestic relations matter, the payment or amount of which is

40

contingent upon the securing of a divorce or upon the amount of alimony or support, or

41

property settlement in lieu thereof; or

42

(d)(2) A a contingent fee for representing a defendant in a criminal case.

43

(e) A division of a fee between lawyers who are not in the same firm may be made

44
45

only if:
(e)(1) Tthe division is in proportion to the services performed by each lawyer or, by

46

written agreement with the client,

47

representation;

each lawyer assumes joint responsibility for the

48

(e)(2) The client is advised of and does not object to the participation of all lawyers

49

involved; andthe client agrees to the arrangement, including the share each lawyer will

50

receive, and the agreement is confirmed in writing; and

51

(e)(3) Tthe total fee is reasonable.

52

Comment

53

Reasonableness of Fee and Expenses

54

[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the

55

circumstances. The factors specified in (a)(1) through (a)(8) are not exclusive. Nor will

56

each factor be relevant in each instance. Paragraph (a) also requires that expenses for

57

which the client will be charged must be reasonable.

58

reimbursement for the cost of services performed in-house, such as copying, or for

59

other expenses incurred in-house, such as telephone charges, either by charging a

60

reasonable amount to which the client has agreed in advance or by charging an amount

61

that reasonably reflects the cost incurred by the lawyer.

62

Basis or Rate of Fee

25

A lawyer may seek

Draft: March 25, 2005
63

[2] When the lawyer has regularly represented a client, they ordinarily will have

64

evolved an understanding concerning the basis or rate of the fee and the expenses for

65

which the client will be responsible. In a new client-lawyer relationship, however, an

66

understanding as to the fee should fees and expenses must be promptly established in

67

writing, where it is reasonably foreseeable that the fees will exceed $750.00. It is not

68

necessary to recite all the factors that underlie the basis of the fee, but only those that

69

are directly involved in its computation. It is sufficient, for example, to state that the

70

basic rate is an hourly charge or a fixed amount or an estimated amount or to identify

71

the factors that may be taken into account in finally fixing the fee. When developments

72

occur during the representation that render an earlier estimate substantially inaccurate,

73

a revised estimate should be provided to the client. Generally, it is desirable to furnish

74

the client with at least a simple memorandum or copy of the lawyer’s customary fee

75

arrangements that states the general nature of the legal services to be provided, the

76

basis, rate or total amount of the fee and whether and to what extent the client will be

77

responsible for any costs, expenses or disbursements in the course of the

78

representation.

79

reduces the possibility of misunderstanding. Furnishing the client with a simple

80

memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis

81

or rate of the fee is set forth.

A written statement concerning the fee terms of the engagement

82

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

83

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

84

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

85

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

86

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

87

allowable, or may require a lawyer to offer clients an alternative basis for the fee.

88

Applicable law also may apply to situations other than a contingent fee, for example,

89

government regulations regarding fees in certain tax matters.

90

Terms of Payment

91

[4] A lawyer may require advance payment of a fee but is obligated to return any

92

unearned portion. See Rule 1.14(d)1.16(d). A lawyer may accept property in payment

93

for services, such as an ownership interest in an enterprise, providing this does not

26

Draft: March 25, 2005
94

involve acquisition of a proprietary interest in the cause of action or subject matter of the

95

litigation contrary to Rule 1.8(j)(i). However, a fee paid in property instead of money may

96

be subject to special scrutiny because it involves questions concerning both the value of

97

the services and the lawyer's special knowledge of the value of the property. the

98

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

99

business transaction with the client.

100

[5] An agreement may not be made whose terms might induce the lawyer improperly

101

to curtail services for the client or perform them in any way contrary to the client's

102

interest. For example, a lawyer should not enter into an agreement whereby services

103

are to be provided only up to a stated amount when it is foreseeable that more

104

extensive services probably will be required, unless the situation is adequately

105

explained to the client. Otherwise, the client might have to bargain for further assistance

106

in the midst of a proceeding or transaction. However, it is proper to define the extent of

107

services in light of the client's ability to pay. A lawyer should not exploit a fee

108

arrangement based primarily on hourly charges by using wasteful procedures. When

109

there is doubt whether a contingent fee is consistent with the client's best interest, the

110

lawyer should offer the client alternative bases for the fee and explain their implications.

111

Applicable law may impose limitations on contingent fees, such as a ceiling on the

112

percentage.

113

Prohibited Contingent Fees Division of Fee

114

[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic

115

relations matter when payment is contingent upon the securing of a divorce or upon the

116

amount of alimony or support or property settlement to be obtained. This provision

117

does not preclude a contract for a contingent fee for legal representation in connection

118

with the recovery of post-judgment balances due under support, alimony or other

119

financial orders because such contracts do not implicate the same policy concerns.

120

Division of Fees

121

[7] A division of fee is a single billing to a client covering the fee of two or more

122

lawyers who are not in the same firm. A division of fee facilitates association of more

123

than one lawyer in a matter in which neither alone could serve the client as well, and

124

most often is used when the fee is contingent and the division is between a referring

27

Draft: March 25, 2005
125

lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on

126

the basis of the proportion of services they render or by agreement between the

127

participating lawyers if all assume if each lawyer assumes responsibility for the

128

representation as a whole. and the client is advised and does not object. It does not

129

require disclosure to the client of In addition, the client must agree to the arrangement,

130

including the share that each lawyer is to receive, and the agreement must be

131

confirmed in writing. Contingent fee agreements must be in a writing signed by the

132

client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for

133

the representation entails the obligations stated in Rule 5.1 for purposes of the matter

134

involved. Rule 1.5(e) is not intended to prevent the sale of a law practice (including

135

goodwill) if the sale otherwise complies with the Rules of Professional Conduct. financial

136

and ethical responsibility for the representation as if the lawyers were associated in a

137

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

138

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

139
140

[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.

141

Disputes over Fees

142

[9] If a procedure has been established for resolution of fee disputes, such as an

143

arbitration or mediation procedure established by the Bar Bar, the lawyer must comply

144

with the procedure when it is mandatory, and, even when it is voluntary, the lawyer

145

should conscientiously consider submitting to it. Law may prescribe a procedure for

146

determining a lawyer's fee, for example, in representation of an executor or

147

administrator, a class or a person entitled to a reasonable fee, as part of the measure of

148

damages. The lawyer entitled to such a fee and a lawyer representing another party

149

concerned with the fee should comply with the prescribed procedure.

150

28

Draft: March 25, 2005
1

Rule 1.6. Confidentiality of Information.

2

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

3

except as stated in paragraph (b), unless the client consents after consultation unless

4

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

5

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

6
7

(b) A lawyer may reveal such information relating to the representation of a client to
the extent the lawyer reasonably believes necessary:

8

(b)(1) To prevent the client from committing a criminal or fraudulent act that the

9

lawyer believes is likely to result in to prevent reasonably certain death or substantial

10

bodily harm, or substantial injury to the financial interest or property of another;

11

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

12

certain to result in substantial injury to the financial interest or property of another and in

13

furtherance of which the client has used the lawyer’s services;

14

(b)(3) To to prevent, mitigate or rectify the consequences of a client's criminal or

15

fraudulent act in the commission of which the lawyer's services had been used

16

substantial injury to the financial interests or property of another that is reasonably

17

certain to result or has resulted from the client’s commission of a crime or fraud and in

18

furtherance of which the client has used the lawyer’s services;

19

(b)(3) (4) to secure legal advice about the lawyer’s compliance with these Rules;

20

(b)(5) To to establish a claim or defense on behalf of the lawyer in a controversy

21

between the lawyer and the client or, to establish a defense to a criminal charge or civil

22

claim against the lawyer based upon conduct in which the client was involved, or to

23

respond to allegations in any proceeding concerning the lawyer’s representation of the

24

client; or

25
26

(b)(6)(4) To to comply with the Rules of Professional Conduct or other lawthe law or
court order or when necessary to comply with these Rules.

27

(c) For purposes of this rule, Rrepresentation of a client includes counseling a

28

lawyer(s) about the need for or availability of treatment for substance abuse or

29

psychological or emotional problems by members of the Utah State Bar serving on the

30

Lawyers Helping Lawyers Committee.

31

Comment

29

Draft: March 25, 2005
32

[1]

A fundamental principle in the client-lawyer relationship is that the lawyer

33

maintain confidentiality This Rule governs the disclosure by a lawyer of information

34

relating to the representation of a client during the lawyer’s representation of the client.

35

See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer

36

by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information

37

relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and

38

1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the

39

disadvantage of clients and former clients.

40

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

41

the client’s informed consent, the lawyer must not reveal information relating to the

42

representation. See Rule 1.0(e) for the definition of informed consent. This contributes

43

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

44

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

45

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

46

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

47

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

48

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

49

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

50

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

51

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

52

bodies of law,: the attorney-client privilege in the law of evidence , the work-product

53

doctrine and the rule of confidentiality established in professional ethics. The attorney-

54

client privilege applies and work-product doctrine apply in judicial and other proceedings

55

in which a lawyer may be called as a witness or otherwise required to produce evidence

56

concerning a client. The rule of client-lawyer confidentiality applies in situations other

57

than those where evidence is sought from the lawyer through compulsion of law. The

58

confidentiality rule, for example, applies not merely only to matters communicated in

59

confidence by the client but also to all information relating to the representation,

60

whatever its source. A lawyer may not disclose such information except as authorized

61

or required by the Rules of Professional Conduct or other law. See also Scope.

30

Draft: March 25, 2005
62

[4]

Paragraph (a) prohibits a lawyer from revealing information relating to the

63

representation of a client. This prohibition also applies to disclosures by a lawyer that

64

do not in themselves reveal protected information but could reasonably lead to the

65

discovery of such information by a third person. A lawyer’s use of a hypothetical to

66

discuss issues relating to the representation is permissible so long as there is no

67

reasonable likelihood that the listener will be able to ascertain the identity of the client or

68

the situation involved.

69

Authorized Disclosure

70

[5]

A lawyer may disclose information Except to the extent that the client’s

71

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

72

to make disclosures about a client when necessary in the proper representation of the

73

client. In litigation appropriate in carrying out the representation. In some situations, for

74

example, a lawyer may disclose information by admitting be impliedly authorized to

75

admit a fact that cannot properly be disputed, or in negotiation by makingor to make a

76

disclosure that facilitates a satisfactory conclusion to the matter. Lawyers in a firm may,

77

in the course of the firm's practice, disclose to each other information relating to a client

78

of the firm, unless the client has instructed that particular information be confined to

79

specified lawyers.

80

Disclosure Adverse to Client

81

The confidentiality rule is subject to limited exceptions. In becoming privy to

82

information about a client, a lawyer may foresee that the client intends serious and

83

perhaps irreparable harm to another person. To the extent a lawyer is prohibited from

84

making disclosure, the interests of the potential victim are sacrificed in favor of

85

preserving the client's confidences even though the client's purpose is wrongful. To the

86

extent a lawyer is required or permitted to disclose a client's purposes, the client may be

87

inhibited from revealing facts which would enable the lawyer to counsel against a

88

wrongful course of action. A rule governing disclosure of threatened harm thus involves

89

balancing the interests of one group of potential victims against those of another. On the

90

assumption that lawyers generally fulfill their duty to advise against the commission of

91

deliberately wrongful acts, the public is better protected if full disclosure by the client is

92

encouraged than if it is inhibited.

31

Draft: March 25, 2005
93

Generally speaking, information relating to the representation must be kept

94

confidential, as stated in paragraph (a). However, where the client is or has been

95

engaged in criminal or fraudulent conduct or the integrity of the lawyer's own conduct is

96

involved, the principle of confidentiality may have to yield, depending on the lawyer's

97

knowledge about and relationship to the conduct in question and the seriousness of that

98

conduct. Several situations must be distinguished.

99

First, the lawyer may not counsel or assist a client in conduct that is criminal or

100

fraudulent. See Rule 1.2(d). As noted in the Comment to that Rule, there can be

101

situations where the lawyer may have to reveal information relating to the

102

representation in order to avoid assisting a client's criminal or fraudulent conduct.

103

Paragraph 1.6(b)(4) permits doing so. Similarly, a lawyer has a duty under Rule

104

3.3(a)(4) not to use false or fabricated evidence. This duty is essentially a special

105

instance of the duty prescribed in Rule 1.2(d) to avoid assisting a client in criminal or

106

fraudulent conduct. Rule 1.6(b)(4) permits revealing information to the extent necessary

107

to comply with Rule 3.3(a). The same is true of compliance with Rule 4.1 concerning

108

truthfulness of a lawyer's own representations.

109

Second, the lawyer may have been innocently involved in past conduct by the client

110

that was criminal or fraudulent. In such a situation, the lawyer has not violated Rule

111

1.2(d), because to "counsel or assist" criminal or fraudulent conduct requires knowing

112

that the conduct is of that character. Even if the involvement was innocent, however, the

113

fact remains that the lawyer's professional services were made the instrument of the

114

client's crime or fraud. The lawyer, therefore, has a legitimate interest in being able to

115

rectify the consequences of such conduct and has the professional right, although not a

116

professional duty, to rectify the situation. Exercising that right may require revealing

117

information relating to the representation. Paragraph (b)(2) gives the lawyer

118

professional discretion to reveal such information to the extent necessary to accomplish

119

rectification.

120

Third, the lawyer may learn that a client intends prospective conduct that is criminal

121

or fraudulent. Inaction by the lawyer is not a violation of Rule 1.2(d), except in the

122

limited circumstances where failure to act constitutes assisting the client. See Comment

123

to Rule 1.2(d). However, the lawyer's knowledge of the client's purpose may enable the

32

Draft: March 25, 2005
124

lawyer to prevent commission of the prospective crime or fraud. If the prospective crime

125

or fraud is likely to result in substantial injury, the lawyer may feel a moral obligation to

126

take preventive action. When the threatened injury is grave, such as homicide or

127

serious bodily injury, the lawyer may have an obligation under tort or criminal law to take

128

reasonable preventive measures. Whether the lawyer's concern is based on moral or

129

legal considerations, the interest in preventing the harm may be more compelling than

130

the interest in preserving confidentiality of information relating to the client. As stated in

131

paragraph (b)(1), the lawyer has professional discretion to reveal information in order to

132

prevent substantial harm likely to result from a client's criminal or fraudulent act.

133

It is arguable that the lawyer should have a professional obligation to make a

134

disclosure in order to prevent homicide or serious bodily injury which the lawyer knows

135

is intended by a client. However, it is very difficult for a lawyer to "know" when such a

136

heinous purpose will actually be carried out, for the client may have a change of mind.

137

To require disclosure when the client intends such an act, at risk of disciplinary liability if

138

the assessment of the client's purpose turns out to be wrong, would be to impose a

139

penal risk that might interfere with the lawyer's resolution of an inherently difficult moral

140

dilemma.

141

The lawyer's exercise of discretion requires consideration of such factors as the

142

magnitude, proximity and likelihood of the contemplated wrong, the nature of the

143

lawyer's relationship with the client and with those who might be injured by the client,

144

the lawyer's own involvement in the transaction and factors that may extenuate the

145

conduct in question. In any case, a disclosure adverse to the client's interest should be

146

no greater than the lawyer believes necessary to the purpose. A lawyer's decision not to

147

take preventive action permitted by paragraph (b)(1) does not violate this Rule.

148

The term "another" in paragraph (b)(1) includes a person, organization and government.

149

Paragraph (b)(2) does not apply where a lawyer is employed after a crime of fraud

150

has been committed to represent the client in matters ensuing therefrom.

151

Dispute Concerning Lawyer's Conduct

152

If the lawyer is charged with wrongdoing in which the client's conduct is implicated,

153

the rule of confidentiality should not prevent the lawyer from defending himself.

33

Draft: March 25, 2005
154

[6]

Although the public interest is usually best served by a strict rule requiring

155

lawyers to preserve the confidentiality of information relating to the representation of

156

their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1)

157

recognizes the overriding value of life and physical integrity and permits disclosure

158

reasonably necessary to prevent reasonably certain death or substantial bodily harm.

159

Such harm is reasonably certain to occur if it will be suffered imminently or if there is a

160

present and substantial threat that a person will suffer such harm at a later date if the

161

lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows

162

that a client has accidentally discharged toxic waste into a town’s water supply may

163

reveal this information to the authorities if there is a present and substantial risk that a

164

person who drinks the water will contract a life-threatening or debilitating disease and

165

the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of

166

victims.

167

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

168

the lawyer to reveal information to the extent necessary to enable affected persons or

169

appropriate authorities to prevent the client from committing a crime or fraud, as defined

170

in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or

171

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

172

the lawyer’s services. The client can, of course, prevent such disclosure by refraining

173

from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to

174

reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct

175

the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with

176

respect to the lawyer’s obligation or right to withdraw from the representation of the

177

client in such circumstances, and Rule 1.13(c) which permits the lawyer, where the

178

client is an organization, to reveal information relating to the representation in limited

179

circumstances.

180

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

181

the client’s crime or fraud until after it has been consummated. Although the client no

182

longer has the option of preventing disclosure by refraining from the wrongful conduct,

183

there will be situations in which the loss suffered by the affected person can be

184

prevented, rectified or mitigated. In such situations, the lawyer may disclose information

34

Draft: March 25, 2005
185

relating to the representation to the extent necessary to enable the affected persons to

186

prevent or mitigate reasonably certain losses or to attempt to recoup their losses.

187

Paragraph (b)(3) does not apply when a person who has committed a crime or fraud

188

thereafter employs a lawyer for representation concerning that offense.

189

[9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing

190

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

191

Rules. In most situations, disclosing information to secure such advice will be impliedly

192

authorized for the lawyer to carry out the representation. Even when the disclosure is

193

not impliedly authorized, paragraph (b)(4) permits such disclosure because of the

194

importance of a lawyer’s compliance with the Rules of Professional Conduct.

195

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a

196

client’s conduct or other misconduct of the lawyer involving representation of the client,

197

the lawyer may respond to the extent the lawyer reasonably believes necessary to

198

establish a defense. The same is true with respect to a claim involving the conduct or

199

representation of a former client.

200

professional , disciplinary or other proceeding and can be based on a wrong allegedly

201

committed by the lawyer against the client or on a wrong alleged by a third person, for

202

example, a person claiming to have been defrauded by the lawyer and client acting

203

together. A lawyer entitled to a fee is not prevented by the rule of confidentiality from

204

proving the services rendered in an action to collect it.

205

Disclosures Otherwise Required or Authorized

206

The attorney-client privilege is defined differently in various jurisdictions. If a lawyer

207

is called as a witness to give testimony concerning a client, absent waiver by the client,

208

Rule 1.6(a) requires the lawyer to invoke the privilege when it is applicable.

Such a charge can arise in a civil, criminal or

209

The Rules of Professional Conduct in various circumstances permit or require a

210

lawyer to disclose information relating to the representation. See Rules 1.13, 2.2, 2.3,

211

3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by

212

other provisions of law to give information about a client. Whether another provision of

213

law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules,

214

but a presumption should exist against such a supersession.

215

Use of Information

35

Draft: March 25, 2005
216

A lawyer may not make use of information relating to the representation in a manner

217

disadvantageous to the client. The duty of confidentiality continues after the client-

218

lawyer relationship has terminated. See Rule 1.9.

219

The lawyer’s right to respond arises when an assertion of such complicity has been

220

made. Paragraph (b)(3) does not require the lawyer to await the commencement of an

221

action or proceeding that charges such complicity, so that the defense may be

222

established by responding directly to a third party who has made such an assertion.

223

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

224

[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services

225

rendered in an action to collect it. This aspect of the rule expresses the principle that

226

the beneficiary of a fiduciary relationship may not exploit it to the detriment of the

227

fiduciary.

228

[12]

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

229

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

230

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

231

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

232

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

233

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

234

necessary to comply with the law.

235

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

236

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

237

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

238

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

239

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

240

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

241

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

242

appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph

243

(b)(6) permits the lawyer to comply with the court’s order.

244

[14]

Paragraph (b) permits disclosure only to the extent the lawyer reasonably

245

believes the disclosure is necessary to accomplish one of the purposes specified.

246

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

36

Draft: March 25, 2005
247

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

248

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

249

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

250

proceeding, the disclosure should be made in a manner that limits access to the

251

information to the tribunal or other persons having a need to know it and appropriate

252

protective orders or other arrangements should be sought by the lawyer to the fullest

253

extent practicable.

254

[15] Paragraph (b) permits but does not require the disclosure of information relating

255

to a client’s representation to accomplish the purposes specified in paragraphs (b)(1)

256

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

257

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

258

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

259

transaction and factors that may extenuate the conduct in question. A lawyer’s decision

260

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

261

be required, however, by other rules. Some rules require disclosure only if such

262

disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3.

263

Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of

264

whether such disclosure is permitted by this Rule. See Rule 3.3(c).

265

Acting Competently to Preserve Confidentiality

266

[16]

A lawyer must act competently to safeguard information relating to the

267

representation of a client against inadvertent or unauthorized disclosure by the lawyer

268

or other persons who are participating in the representation of the client or who are

269

subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.

270

[17] When transmitting a communication that includes information relating to the

271

representation of a client, the lawyer must take reasonable precautions to prevent the

272

information from coming into the hands of unintended recipients. This duty, however,

273

does not require that the lawyer use special security measures if the method of

274

communication affords a reasonable expectation of privacy. Special circumstances,

275

however, may warrant special precautions. Factors to be considered in determining the

276

reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of

277

the information and the extent to which the privacy of the communication is protected by

37

Draft: March 25, 2005
278

law or by a confidentiality agreement. A client may require the lawyer to implement

279

special security measures not required by this Rule or may give informed consent to the

280

use of a means of communication that would otherwise be prohibited by this Rule.

281

Former Client

282

[18] The duty of confidentiality continues after the client-lawyer relationship has

283

terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such

284

information to the disadvantage of the former client.

285

[19]

Paragraph (dc) is an addition to ABA Model Rule 1.6 and provides for

286

confidentiality of information between lawyers providing assistance to other lawyers

287

under the Utah State Bar program, Lawyers Helping Lawyers.

288

38

Draft: March 25, 2005
1

Rule 1.7. Conflict of Iinterest: general rule Current Clients.

2

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

3

representation involves a concurrent conflict of interest. A concurrent conflict of interest

4

exists if:

5

(a)(1) The representation of one client will be directly adverse to another client; or

6

(a)(2) There is a significant risk that the representation of one or more clients will be

7

materially limited by the lawyer’s responsibilities to another client, a former client or a

8

third person or by a personal interest of the lawyer.

9
10
11
12

(b)

Notwithstanding the existence of a concurrent conflict of interest under

paragraph (a), a lawyer may represent a client if:
(b)(1)

the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

13

(b)(2) the representation is not prohibited by law;

14

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

15

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

16

proceeding before a tribunal; and

17

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

18

Comment

19

General Principles

20

[1]

Loyalty and independent judgment are essential elements in the lawyer’s

21

relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s

22

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

23

own interests. For specific rules regarding certain concurrent conflicts of interest, see

24

Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest

25

involving prospective clients, see Rule 1.18. For definitions of “informed consent” and

26

“confirmed in writing,” see Rules 1.0(e) and (b).

27

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

28

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

29

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

30

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

31

clients affected under paragraph (a)(1) and obtain their informed consent, confirmed in

39

Draft: March 25, 2005
32

writing. The clients affected under paragraph (a)(1) include both of the clients referred

33

to in paragraph (a)(1) and the one or more clients whose representation might be

34

materially limited under paragraph (a)(2).

35

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

36

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

37

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

38

conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for

39

the size and type of firm and practice, to determine in both litigation and nonlitigation

40

matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance

41

caused by a failure to institute such procedures will not excuse a lawyer’s violation of

42

this Rule.

43

established, is continuing, see Comment to Rule 1.3 and Scope.

As to whether a client-lawyer relationship exists or, having once been

44

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

45

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

46

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

47

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

48

the clients is determined both by the lawyer’s ability to comply with duties owed to the

49

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

50

clients, given the lawyer’s duties to the former client. See Rule 1.9.

51

Comments [5] and [29].

52

[4a]

See also

To eliminate confusion, former Rule 2.2 “Intermediary” has been deleted

53

entirely. The term “intermediation” is changed in Rule 1.7 to “common representation”.

54

Comment [4] sets out the analyisis that a lawyer should make in order to determine

55

when common representation is improper.

56

instruct lawyers on what informed consent means in the situations.

57

[5]

The comments to Rule 1.7 specifically

Unforeseeable developments, such as changes in corporate and other

58

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

59

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

60

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

61

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

62

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

40

Draft: March 25, 2005
63

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

64

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

65

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

66

Identifying Conflicts of Interest: Directly Adverse

67

[6]

Loyalty to a current As a general proposition, loyalty to a client prohibits

68

undertaking representation directly adverse to that client without the client's consent.

69

Paragraph (1) expresses that general rule. Thus, a lawyer ordinarily may not act as

70

advocate that client’s informed consent. Thus, absent consent, a lawyer may not act as

71

an advocate in one matter against a person the lawyer represents in some other matter,

72

even if it is wholly unrelated when the matters are wholly unrelated. The client as to

73

whom the representation is directly adverse is likely to feel betrayed, and the resulting

74

damage to the client-lawyer relationship is likely to impair the lawyer’s ability to

75

represent the client effectively. In addition, the client on whose behalf the adverse

76

representation is undertaken reasonably may fear that the lawyer will pursue that

77

client’s case less effectively out of deference to the other client, i.e., that the

78

representation may be materially limited by the lawyer’s interest in retaining the current

79

client. Similarly, a directly adverse conflict may arise when a lawyer is required to

80

cross-examine a client who appears as a witness in a lawsuit involving another client,

81

as when the testimony will be damaging to the client who is represented in the lawsuit.

82

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

83

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

84

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

85

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

86
87

Paragraph (a) applies only when the representation of one client would be directly
adverse to the other.

88

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

89

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

90

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

91

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

92

client.

93

Loyalty to a client is also impaired when a lawyer cannot

41

Draft: March 25, 2005
94

Identifying Conflicts of Interest: Material Limitation

95

[8] Even where there is no direct adverseness, a conflict of interest exists if there is

96

a significant risk that a lawyer’s ability to consider, recommend or carry out an

97

appropriate course of action for the client because will be materially limited as a result of

98

the lawyer's other responsibilities or interests.

99

represent several individuals seeking to form a joint venture is likely to be materially

100

limited in the lawyer’s ability to recommend or advocate all possible positions that each

101

might take because of the lawyer’s duty of loyalty to the others. The conflict in effect

102

forecloses alternatives that would otherwise be available to the client. Paragraph (b)

103

addresses such situations. A possible conflict The mere possibility of subsequent harm

104

does not itself preclude the representation require disclosure and consent. The critical

105

questions are the likelihood that a difference in interests will eventuate and, if it does,

106

whether it will materially interfere with the lawyer's independent professional judgment in

107

considering alternatives or foreclose courses of action that reasonably should be

108

pursued on behalf of the client. Consideration should be given to whether the client

109

wishes to accommodate the other interest involved.

For example, a lawyer asked to

110

Consultation and Consent

111

A client may consent to representation notwithstanding a conflict. However, as

112

indicated in paragraph (a)(1) with respect to representation directly adverse to a client

113

and paragraph (b)(1) with respect to material limitations on representation of a client,

114

when a disinterested lawyer would conclude that the client should not agree to the

115

representation under the circumstances, the lawyer involved cannot properly ask for

116

such agreement or provide representation on the basis of the client's consent. When

117

more than one client is involved, the question of conflict must be resolved as to each

118

client. Moreover, there may be circumstances where it is

119

Lawyer’s Responsibilities to Former Clients and Other Third Persons

120

[9] In addition to conflicts with other current clients, a lawyer’s duties of loyalty and

121

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

122

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

123

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

124

Personal Interest Conflicts

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Draft: March 25, 2005
125

[10] The lawyer’s own interests should not be permitted to have an adverse effect on

126

representation of a client. For example, if the probity of a lawyer’s own conduct in a

127

transaction is in serious question, it may be difficult or impossible for the lawyer to give

128

a client detached advice. Similarly, when a lawyer has discussions concerning possible

129

employment with an opponent of the lawyer’s client, or with a law firm representing the

130

opponent, such discussions could materially limit the lawyer’s representation of the

131

client.

132

representation, for example, by referring clients to an enterprise in which the lawyer has

133

an undisclosed financial interest. See Rule 1.8 for specific rules pertaining to a number

134

of personal interest conflicts, including business transactions with clients. See also

135

Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other

136

lawyers in a law firm).

137

[11]

In addition, a lawyer may not allow related business interests to affect

When lawyers representing different clients in the same matter or in

138

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

139

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

140

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

141

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

142

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

143

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

144

not represent a client in a matter where that lawyer is representing another party, unless

145

each client gives informed consent. The disqualification arising from a close family

146

relationship is personal and ordinarily is not imputed to members of firms with whom the

147

lawyers are associated. See Rule 1.10.

148

[12] A lawyer is prohibited from engaging in sexual relationships with a client unless

149

the sexual relationship predates the formation of the client-lawyer relationship. See

150

Rule 1.8(j).

151

Interest of Person Paying for a Lawyer’s Service

152

[13] A lawyer may be paid from a source other than the client, including a co-client,

153

if the client is informed of that fact and consents and the arrangement does not

154

compromise the lawyer’s duty of loyalty or independent judgment to the client. See

155

Rule 1.8(f). If acceptance of the payment from any other source presents a significant

43

Draft: March 25, 2005
156

risk that the lawyer’s representation of the client will be materially limited by the lawyer’s

157

own interest in accommodating the person paying the lawyer’s fee or by the lawyer’s

158

responsibilities to a payer who is also a co-client, then the lawyer must comply with the

159

requirements of paragraph (b) before accepting the representation, including

160

determining whether the conflict is consentable and, if so, that the client has adequate

161

information about the material risks of the representation.

162

Prohibited Representations

163

[14] Ordinarily, clients may consent to representation notwithstanding a conflict.

164

However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning

165

that the lawyer involved cannot properly ask for such agreement or provide

166

representation on the basis of the client’s consent. When the lawyer is representing

167

more than one client, the question of consentability must be resolved as to each client.

168

[15] Consentability is typically determined by considering whether the interests of

169

the clients will be adequately protected if the clients are permitted to give their informed

170

consent to representation burdened by a conflict of interest. Thus, under paragraph

171

(b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably

172

conclude that the lawyer will be able to provide competent and diligent representation.

173

See Rule 1.1 (competence) and Rule 1.3 (diligence).

174

[16]

Paragraph (b)(2) describes conflicts that are nonconsentable because the

175

representation is prohibited by applicable law. For example, in some states substantive

176

law provides that the same lawyer may not represent more than one defendant in a

177

capital case, even with the consent of the clients, and under federal criminal statutes

178

certain representations by a former government lawyer are prohibited, despite the

179

informed consent of the former client. In addition, decisional law in some states limits

180

the ability of a governmental client, such as a municipality, to consent to a conflict of

181

interest.

182

[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the

183

institutional interest in vigorous development of each client’s position when the clients

184

are aligned directly against each other in the same litigation or other proceeding before

185

a tribunal. Whether clients are aligned directly against each other within the meaning of

186

this paragraph requires examination of the context of the proceeding. Although this

44

Draft: March 25, 2005
187

paragraph does not preclude a lawyer’s multiple representation of adverse parties to a

188

mediation (because mediation is not a proceeding before a “tribunal” under Rule

189

1.0(m)), such representation may be precluded by paragraph (b)(1).

190

Informed Consent

191

[18] Informed consent requires that each affected client be aware of the relevant

192

circumstances and of the material and reasonably foreseeable ways that the conflict

193

could have adverse effects on the interests of that client. See Rule 1.0(e) (informed

194

consent). The information required depends on the nature of the conflict and the nature

195

of the risks involved.

196

undertaken,

197

representation, including possible effects on loyalty, confidentiality and the attorney-

198

client privilege and the advantages and risks involved. See Comments [30] and [31]

199

(effect of common representation on confidentiality).

200

[19]

the

When representation of multiple clients in a single matter is

information

must

include

the

implications

of

the

common

Under some circumstances it may be impossible to make the disclosure

201

necessary to obtain consent. For example, when the lawyer represents different clients

202

in related matters and one of the clients refuses to consent to the disclosure necessary

203

to permit the other client to make an informed decision, the lawyer cannot properly ask

204

the latter to consent. In some cases the alternative to common representation can be

205

that each party may have to obtain separate representation with the possibility of

206

incurring additional costs. These costs, along with the benefits of securing separate

207

representation, are factors that may be considered by the affected client in determining

208

whether common representation is in the client’s interests.

209

Lawyer's Interests

210

The lawyer's own interests should not be permitted to have adverse effect on

211

representation of a client. For example, a lawyer's need for income should not lead the

212

lawyer to undertake matters that cannot be handled competently and at a reasonable

213

fee. See Rules 1.1 and 1.5. If the probity of a lawyer's own conduct in a transaction is in

214

serious question, it may be difficult or impossible for the lawyer to give a client detached

215

advice. A lawyer may not allow related business interests to affect representation, for

216

example, by referring clients to an enterprise in which the lawyer has an undisclosed

217

interest.

45

Draft: March 25, 2005
218

Consent Confirmed in Writing

219

[20] Paragraph (b) requires the lawyer to obtain the informed consent of the client,

220

confirmed in writing. Such a writing may consist of a document executed by the client

221

or one that the lawyer promptly records and transmits to the client following an oral

222

consent.

223

transmission). If it is not feasible to obtain or transmit the writing at the time the client

224

gives informed consent, then the lawyer must obtain or transmit it within a reasonable

225

time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the

226

need in most cases for the lawyer to talk with the client, to explain the risks and

227

advantages, if any, of representation burdened with a conflict of interest, as well as

228

reasonably available alternatives, and to afford the client a reasonable opportunity to

229

consider the risks and alternatives and to raise questions and concerns. Rather, the

230

writing is required in order to impress upon clients the seriousness of the decision the

231

client is being asked to make and to avoid disputes or ambiguities that might later occur

232

in the absence of a writing.

233

Revoking Consent

234

[21] A client who has given consent to a conflict may revoke the consent and, like

See Rule 1.0(b).

See also Rule 1.0(n) (writing includes electronic

235

any other client, may terminate the lawyer’s representation at any time.

236

revoking consent to the client’s own representation precludes the lawyer from

237

continuing to represent other clients depends on the circumstances, including the nature

238

of the conflict, whether the client revoked consent because of a material change in

239

circumstances, the reasonable expectations of the other client and whether material

240

detriment to the other clients or the lawyer would result.

Whether

241

Consent to Future Conflict

242

[22] Whether a lawyer may properly request a client to waive conflicts that might

243

arise in the future is subject to the test of paragraph (b). The effectiveness of such

244

waivers is generally determined by the extent to which the client reasonably

245

understands the material risks that the waiver entails. The more comprehensive the

246

explanation of the types of future representations that might arise and the actual and

247

reasonably foreseeable adverse consequences of those representations, the greater

248

the likelihood that the client will have the requisite understanding. Thus, if the client

46

Draft: March 25, 2005
249

agrees to consent to a particular type of conflict with which the client is already familiar,

250

then the consent ordinarily will be effective with regard to that type of conflict. If the

251

consent is general and open-ended, then the consent ordinarily will be ineffective,

252

because it is not reasonably likely that the client will have understood the material risks

253

involved. On the other hand, if the client is an experienced user of the legal services

254

involved and is reasonably informed regarding the risk that a conflict may arise, such

255

consent is more likely to be effective, particularly if, e.g., the client is independently

256

represented by other counsel in giving consent and the consent is limited to future

257

conflicts unrelated to the subject of the representation. In any case, advance consent

258

cannot be effective if the circumstances that materialize in the future are such as would

259

make the conflict nonconsentable under paragraph (b).

260

Conflicts in Litigation

261

[23]

Paragraph (a)(b)(3) prohibits representation of opposing parties inlitigation.

262

Simultaneous the same litigation, regardless of the clients’ consent. On the other hand,

263

simultaneous representation of parties whose interests in litigation may conflict, such as

264

co-plaintiffs or co-defendants coplaintiffs or codefendants, is governed by paragraph (b).

265

An impermissible (a)(2). A conflict may exist by reason of substantial discrepancy in the

266

parties' testimony, incompatibility in positions in relation to an opposing party or the fact

267

that there are substantially different possibilities of settlement of the claims or liabilities

268

in question. Such conflicts can arise in criminal cases as well as civil. The potential for

269

conflict of interest in representing multiple defendants in a criminal case is so grave that

270

ordinarily a lawyer should decline to represent more than one co-defendantcodefendant.

271

On the other hand, common representation of persons having similar interests in civil

272

litigation is proper if the risk of adverse affect is minimal and the requirements of

273

paragraph (b) are met. Compare Rule 2.2, involving intermediation between clients.

274

Ordinarily, a lawyer may not act as advocate against a client the lawyer represents

275

in some other matter, even if the other matter is wholly unrelated. However, there are

276

circumstances in which a lawyer may act as an advocate against a client. For example,

277

a lawyer representing an enterprise with diverse operations may accept employment as

278

an advocate against the enterprise

47

Draft: March 25, 2005
279

[24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at

280

different times on behalf of different clients. The mere fact that advocating a legal

281

position on behalf of one client might create precedent adverse to the interests of a

282

client represented by the lawyer in an unrelated matter if doing so will not adversely

283

affect the lawyer's relationship with the enterprise or conduct of the suit and if both

284

clients consent upon consultation. By the same token, government lawyers in some

285

circumstances may represent government employees in proceedings in which a

286

government agency is the opposing party. The propriety of concurrent representation

287

can depend on the nature of the litigation. For example, a suit charging fraud entails

288

conflict to a degree not involved in a suit for a declaratory judgment concerning statutory

289

interpretation does not create a conflict of interest. A conflict of interest exists, however,

290

if there is a significant risk that a lawyer’s action on behalf of one client will materially

291

limit the lawyer’s effectiveness in representing another client in a different case; for

292

example, when a decision favoring one client will create a precedent likely to seriously

293

weaken the position taken on behalf of the other client. Factors relevant in determining

294

whether the clients need to be advised of the risk include: where the cases are pending,

295

whether the issue is substantive or procedural, the temporal relationship between the

296

matters, the significance of the issue to the immediate and long-term interests of the

297

clients involved and the clients’ reasonable expectations in retaining the lawyer. If there

298

is significant risk of material limitation, then absent informed consent of the affected

299

clients, the lawyer must refuse one of the representations or withdraw from one or both

300

matters.

301

A lawyer may represent parties having antagonistic positions on a legal question that

302

has arisen in different cases, unless representation of either client would be adversely

303

affected. Thus, it is ordinarily not improper to assert such positions in cases pending in

304

different trial courts, but it may be improper to do so in cases pending at the same time

305

in an appellate court.

306

Interest of Person Paying for Lawyer's Service

307

[25]

When a lawyer represents or seeks to represent a class of plaintiffs or

308

defendants in a class-action lawsuit, unnamed members of the class are ordinarily not

309

considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this

48

Draft: March 25, 2005
310

Rule. Thus, the lawyer does not typically need to get the consent of such a person

311

before representing a client suing the person in an unrelated matter. Similarly, a lawyer

312

seeking to represent an opponent in a class action does not typically need the consent

313

of an unnamed member of the class whom the lawyer represents in an unrelated

314

matter.

315

Nonlitigation Conflicts

316

A lawyer may be paid from a source other than the client if the client is informed of

317

that fact and consents and the arrangement does not compromise the lawyer's duty of

318

loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have

319

conflicting interests in a matter arising from a liability insurance agreement and the

320

insurer is required to provide separate counsel for the insured, the arrangement should

321

assure the separate counsel's professional independence. So also, when a corporation

322

and its directors or employees are involved in a controversy in which they have

323

conflicting interests, the corporation may provide funds for separate legal representation

324

of the directors or employees, if the clients consent after consultation and the

325

arrangement ensures the lawyer's professional independence.

326

Other Conflict Situations

327

[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other

328

than litigation sometimes may be difficult to assess. For a discussion of directly adverse

329

conflicts in transactional matters, see Comment [7]. Relevant factors in determining

330

whether there is significant potential for adverse effect material limitation include the

331

duration and intimacy of the lawyer's relationship with the client or clients involved, the

332

functions being performed by the lawyer, the likelihood that actual conflict

333

disagreements will arise and the likely prejudice to the client from the conflict if it does

334

arise. The question is often one of proximity and degree. See Comment [8].

335

For example, a lawyer may not represent multiple parties to a negotiation whose

336

interests are fundamentally antagonistic to each other, but common representation is

337

permissible where the clients are generally aligned in interest even though there is

338

some difference of interest among them. Conflict questions may also [27] For example,

339

conflict questions may arise in estate planning and estate administration. A lawyer may

340

be called upon to prepare wills for several family members, such as husband and wife,

49

Draft: March 25, 2005
341

and, depending upon the circumstances, a conflict of interest may arise be present. In

342

estate administration, the identity of the client may be unclear under the law of a

343

particular jurisdiction. Under one view, the client is the fiduciary; under another view, the

344

client is the estate or trust, including its beneficiaries. The In order to comply with

345

conflict of interest rules, the lawyer should

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Aut%3Aea408368deee198c. Public record. Not legal advice.