Choctaw Nation Bar Association Rules, Code of Ethical Conduct and
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Choctaw Nation Bar Association Rules, Code of Ethical Conduct and
Judicial Cannons
Title 1. Attorneys and the Bar. ............................................................................ 6
Section 1. Choctaw Nation of Oklahoma Bar Association ........................................................ 6
Section 2. Rules of Professional Conduct .................................................................................. 8
APPENDIX “A” Rules of Professional Conduct for Attorneys Scope of the Rules .. 8
PREAMBLE: Responsibilities of the Lawyer ............................................................................. 10
DEFINITIONS ............................................................................................................................. 12
Client-Lawyer Relationship ............................................................................... 14
Rule 1.1. Competence. ............................................................................................................. 14
Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
................................................................................................................................................... 14
Rule 1.3. Diligence. ................................................................................................................... 14
Rule 1.4. Communication. ........................................................................................................ 15
Rule 1.5. Fees. ........................................................................................................................... 15
Rule 1.6. Confidentiality of Information. ................................................................................. 16
Rule 1.7. Conflict of Interest: Current Clients. ......................................................................... 17
Rule 1.8. Conflict of Interest; Prohibited Transactions. .......................................................... 18
Rule 1.9. Conflict of Interest: Duties to Former Client. ........................................................... 19
Rule 1.10. Imputation of Conflicts of Interests: General Rule. ............................................... 20
Rule 1.11. Successive Government and Private Employment. ............................................... 21
Rule 1.12. Former Judge or Arbitrator. .................................................................................... 22
Rule 1.13. Organization as Client. ............................................................................................ 23
Rule 1.14. Client with Diminished Capacity............................................................................. 24
Rule 1.15. Safekeeping Property.............................................................................................. 24
Rule 1.16. Declining or Terminating Representation. ............................................................. 26
Rule 1.17. Sale of Law Practice. ............................................................................................... 27
Rule 1.18. Duties to Prospective Client ................................................................................... 29
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The Lawyer as Counselor .................................................................................. 29
Rule 2.1. Advisor. ...................................................................................................................... 29
Rule 2.2. Intermediary. ............................................................................................................. 30
Rule 2.3. Evaluation for Use by Third Persons. ....................................................................... 30
Rule 2.4. Lawyer Serving As Third-Party Neutral .................................................................... 30
The Lawyer as Advocate ................................................................................... 31
Rule 3.1. Meritorious Claims and Contentions........................................................................ 31
Rule 3.2. Expediting Litigation. ................................................................................................ 31
Rule 3.3. Candor Toward the Tribunal. .................................................................................... 31
Rule 3.4. Fairness to Opposing Party and Counsel. ................................................................. 32
Rule 3.5. Impartiality and Decorum of the Tribunal. .............................................................. 32
Rule 3.6. Trial Publicity. ............................................................................................................ 33
Rule 3.7. Lawyer as Witness. .................................................................................................... 33
Rule 3.8. Special Responsibilities of a Prosecutor. .................................................................. 33
Rule 3.9. Advocate in Non-adjudicative Proceedings. ............................................................ 34
Transactions with Persons Other than Clients ................................................... 34
Rule 4.1. Truthfulness in Statements to Others. ..................................................................... 34
Rule 4.2. Communication with Person Represented by Counsel. .......................................... 35
Rule 4.3. Dealing with Unrepresented Person. ....................................................................... 35
Rule 4.4. Respect for Rights of Third Person. .......................................................................... 35
Law Firms and Associations .............................................................................. 35
Rule 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers. ....................... 35
Rule 5.2. Responsibilities of a Subordinate Lawyer. ............................................................... 36
Rule 5.3. Responsibilities Regarding Non-lawyer Assistants. ................................................. 36
Rule 5.4. Professional Independence of a Lawyer. ................................................................. 36
Rule 5.6. Restrictions on Right to Practice. ............................................................................. 38
Rule 5.7. Responsibilities Regarding Law-Related Services. ................................................... 38
Public Service.................................................................................................... 39
Rule 6.1. Pro Bono Public Service. ........................................................................................... 39
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Rule 6.2. Accepting Appointments. ......................................................................................... 39
Rule 6.3. Membership in Legal Services Organization. ........................................................... 39
Rule 6.4. Law Reform Activities Affecting Client Interests. .................................................... 40
Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services Programs ............................ 40
Information About Legal Services ..................................................................... 40
Rule 7.1. Communications Concerning a Lawyer’s Services. .................................................. 40
Rule 7.2. Advertising. ............................................................................................................... 40
Rule 7.3. Direct Contact With Prospective Clients. ................................................................. 41
Rule 7.4. Communication of Fields of Practice and Certification. .......................................... 42
Rule 7.5. Firm Names and Letterheads. ................................................................................... 42
Maintaining the Integrity of the Legal Profession .............................................. 43
Rule 8.1. Bar Admission and Disciplinary Matters. ................................................................. 43
Rule 8.2. Judicial and Legal Officials. ....................................................................................... 43
Rule 8.3. Reporting Professional Misconduct. ........................................................................ 43
Rule 8.4. Misconduct. ............................................................................................................... 43
Rule 8.5. Disciplinary Authority; Choice of Law ...................................................................... 44
APPENDIX “B” ................................................................................................... 44
CODE OF JUDICIAL CONDUCT ............................................................................ 44
Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary. ............ 44
Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All ...... 45
of the Judge’s Activities............................................................................................................ 45
Canon 3. A Judge Should Perform the Duties of Judicial Office Impartially and Diligently. . 45
Canon 4. A Judge Should so Conduct the Judge’s Extra-Judicial Activities as to Minimize the
Risk of Conflict with Judicial Obligations. ................................................................................ 48
Application of the Code of Judicial Conduct ...................................................... 53
Rules Governing Disciplinary Proceedings ......................................................... 53
RULE 1. Jurisdiction of the Court in the Discipline of Lawyers and the Unauthorized Practice
of Law ........................................................................................................................................ 53
Rule 1.1: Declaration of Jurisdiction. ................................................................................................. 53
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Rule 1.2: Implied Exceptions Negated. .............................................................................................. 53
Rule 1.3: Discipline for any Act Contrary to the Prescribed Standards of Conduct. ........................ 54
Rule 1.4: Controversies Regarding Fees. ........................................................................................... 54
Rule 1.5: Code of Professional Responsibility. .................................................................................. 54
Rule 1.6: Code of Judicial Conduct. .................................................................................................... 54
Rule 1.7: Discipline. ............................................................................................................................ 54
Rule 2. Reserved ....................................................................................................................... 55
Rule 3. Reserved ....................................................................................................................... 55
Rule 4. Reserved ....................................................................................................................... 55
Rule 5. Filing and Processing of Grievances and Requests for Investigation. ........................ 55
Rule 5.1: Form of Grievances, Requests for Investigations, and Referrals Into a Diversion Program.
............................................................................................................................................................ 55
Rule 5.2: Filing and Processing of Grievances and Requests for Investigation. ............................... 56
Rule 5.3: Initial Action by the Court of Appeals. ............................................................................... 57
Rule 5.4: Grievances Privileged.......................................................................................................... 57
Rule 5.5: Continuation of Proceedings notwithstanding Failure to Prosecute, Withdrawal or
Settlement of Grievance. ................................................................................................................... 58
Rule 5.6: Pending Litigation. .............................................................................................................. 58
Rule 5.7: Confidentiality of Disciplinary Investigations and Results. ............................................... 58
Rule 5.8: Confidentiality of Disciplinary Records. ............................................................................. 58
Rule 5.9: Proceedings which are to be a Matter of Public Record. .................................................. 58
Rule 6. Formal Proceedings before the Court of Appeals ....................................................... 59
Rule 6.1. Manner of Instituting. ......................................................................................................... 59
Rule 6.2. Contents of the Formal Complaint. .................................................................................... 59
Rule 6.2A. Emergency Interim Suspension Orders and Related Relief. ........................................... 59
Rule 6.3. Notification of Filing of Complaint. .................................................................................... 60
Rule 6.4. Response to Complaint. ...................................................................................................... 60
Rule 6.5. Amendment of Complaint. ................................................................................................. 60
Rule 6.6. Reserved. ............................................................................................................................. 61
Rule 6.7. Setting and Notification of Hearing.................................................................................... 61
Rule 6.8. Depositions and Discovery. ................................................................................................ 61
Rule 6.9. Hearing Open to the Public. ............................................................................................... 61
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Rule 6.10. Record of Proceedings. ..................................................................................................... 61
Rule 6.11. Power of the Court of Appeals in the Conduct of Proceedings. ...................................... 61
Rule 6.12. Evidence, Procedure and Standard of Proof. ................................................................... 62
Rule 6.13. Reserved. ........................................................................................................................... 62
Rule 6.14. Reserved. ........................................................................................................................... 62
Rule 6.15. Decision by the Court of Appeals. .................................................................................... 62
Rule 6.16. Cost of Investigations and Disciplinary proceedings Where Discipline Results. ............ 63
Rule 7. Summary Disciplinary Proceedings Before the Court of Appeals. ............................. 63
Rule 7.1. Criminal Conviction of a Lawyer. ........................................................................................ 63
Rule 7.2. Reserved. ............................................................................................................................. 63
Rule 7.3. Interim Suspension from Practice. ..................................................................................... 63
Rule 7.4. Conviction Becoming Final without Appeal. ...................................................................... 63
Rule 7.5. Appeal of Conviction. .......................................................................................................... 63
Rule 7.6. Disciplinary Proceedings Based Upon Same Facts as Criminal Proceeding. ..................... 64
Rule 7.7. Disciplinary Action in Other Jurisdictions, as Basis for Discipline. .................................... 64
Rule 7.8. Reserved. ............................................................................................................................. 64
Rule 7.9. Reserved. ............................................................................................................................. 64
Rule 7.10. Reserved. ........................................................................................................................... 64
Rule 8. Resignation Pending Disciplinary Proceedings. .......................................................... 64
Rule 8.1. Prerequisites for Resignation. ............................................................................................ 64
Rule 8.2. Order Approving; Reinstatement. ...................................................................................... 65
Rule 9. Procedure Following Disciplinary Action by the Court of Appeals and Notice thereof;
Winding up of Business of Deceased, Disciplined or missing Lawyer. ................................... 65
Rule 9.1. Notice to Clients; List of other Bars to which Admitted. ................................................... 65
Rule 9.2. Notice to Other Jurisdictions. ............................................................................................. 65
Rule 9.3. Appointment of Attorneys to Wind Up the Lawyer’s Business......................................... 66
Rule 10. Suspension for Personal Incapacity to Practice Law. ................................................ 66
Rule 10.1. Definition........................................................................................................................... 66
Rule 10.2. Suspension. ....................................................................................................................... 66
Rule 10.3. Procedure in General. ....................................................................................................... 66
Rule 10.4. Inquiry as to Personal Incapacity to Practice Law, Incidental to Disciplinary
Proceedings. ....................................................................................................................................... 67
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Rule 10.5. Joinder of Disciplinary Charges with Charges of Personal Incapacity to Practice Law. .. 67
Rule 10.6. Representation by Counsel............................................................................................... 67
Rule 10.7. Service of Process or Notice. ............................................................................................ 68
Rule 10.8. Proof by Certified Copies. ................................................................................................. 68
Rule 10.9. Examination by Physicians. .............................................................................................. 68
Rule 10.10. Proceedings in the Court of Appeals. ............................................................................. 68
Rule 10.11. Application for Reinstatement. ...................................................................................... 68
Rule 10.12. Confidentiality................................................................................................................. 69
Rule 11. Reinstatement. ........................................................................................................... 69
Rule 11.1. Petition for Reinstatement. .............................................................................................. 69
Rule 11.2. Investigation by the Court of Appeals or Special Prosecutor. ......................................... 70
Rule 11.3. Reinstatement Hearing. .................................................................................................... 70
Rule 11.4. Standard of Proof for Petitions for Reinstatement. ........................................................ 70
Rule 11.5. Findings Prerequisite to Reinstatement........................................................................... 70
Rule 11.6. Decision by the Court of Appeals. .................................................................................... 71
Rule 11.7. Notice of Decision and Petition for Rehearing. ............................................................... 71
Rule 11.8. Reinstatement without Order after Suspensions of Two (2) Years or Less. ................... 71
Rule 12. Reserved. .................................................................................................................... 71
Rule 13. Service......................................................................................................................... 71
Rule 13.1. Manner of Service. ............................................................................................................ 71
Rule 14. Reserved. .................................................................................................................... 72
Rule 15. Immunity. ................................................................................................................... 72
Rule 15.1. Immunity for Official Acts................................................................................................. 72
Title 1. Attorneys and the Bar.
Section 1. Choctaw Nation of Oklahoma Bar Association
A. Any person shall be authorized to practice as an attorney and counselor at law in any
Court of the Choctaw Nation who has been admitted to the Bar of the Choctaw Nation of
Oklahoma.
B. The Bar of the Choctaw Nation shall be open to any person who:
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1. Possesses good moral character, due respect for the law and fitness to practice law;
2. Is at least 18 years of age; and
3. Is an attorney at law and is admitted to practice before the highest court of any state
of the United States and is a member in good standing of such Bar or has been
licensed by the Oklahoma Supreme Court as a Licensed Legal Intern; however, all
interns must comply with the provisions of Oklahoma law while practicing in the
courts of the Choctaw Nation.
C. All persons authorized under this Section shall become members of the Choctaw Nation
of Oklahoma Bar Association and their names shall be added to the Roll of Attorneys for
the Court of Appeals of the Choctaw Nation of Oklahoma upon paying an annual
membership fee of fifty dollars ($50.00), and such other additional fees as the Court of
Appeals of the Choctaw Nation may assess, to the Clerk of the Court and taking and
signing the following oath before the Clerk of the Court:
“I do solemnly swear that I will support, protect and defend the
Constitution of the United States, and the Constitution of the
Choctaw Nation of Oklahoma; that I will do no falsehood, or
consent that any be done in court, and if I know of any I will give
knowledge thereof to the judges of the court, or some one of them,
that it may be reformed; I will not wittingly, willingly or
knowingly promote, sue, or procure to be sued, any false or
unlawful suit, or give aid or consent to the same; I will delay no
person for lucre or malice, but will act in the office of attorney in
all courts according to my best learning and discretion with all
good fidelity as well to the court as to my client, so help me God.”
D. No person shall practice as an attorney and counselor at law in any court of the Choctaw
Nation of Oklahoma who is not a citizen of the United States, or who holds a commission
as a judge of any court of the Choctaw Nation of Oklahoma, or who is a tribal law
enforcement officer; nor shall the clerk of the Court of Appeals, or the clerk of the
District Court, or the deputy of either, practice in the particular court of which he is clerk
or deputy clerk.
E. All fees collected from members of the Choctaw Nation of Oklahoma Bar Association
shall be deposited in the Court Fund.
F. Attorneys who are members in good standing of the Bar Association of the Choctaw
Nation Court of Indian Offenses shall automatically become members of the Choctaw
Nation Bar Association for the remainder of the one-year term coinciding with the
payment of annual membership dues; thereafter, all members must pay annual
membership dues to be a member of good standing of the Choctaw Nation Bar
Association.
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G. Attorneys, their spouses, or anyone to whom said attorneys have conveyed property for
the purpose of signing bonds for said attorneys, are prohibited from signing any bonds as
surety in any civil or criminal action, pending or about to be commenced in any of the
courts of the Courts of the Choctaw Nation. No court clerk or judicial officer shall accept
any bonds signed by licensed attorneys, their spouses or anyone to whom said attorneys
have conveyed property for the purpose of signing bonds for said attorneys. All such
bonds, signed by an attorney or his or her spouse, shall be absolutely void, and no penalty
can be recovered of the attorney or his or her spouse signing the same.
Section 2. Rules of Professional Conduct
A. The Court of Appeals of the Choctaw Nation shall, within ninety (90) days of the passage
of this section, promulgate Rules for the Professional Conduct of Attorneys practicing
law before the courts of the Choctaw Nation and Canons of Judicial Ethics which shall
apply to all judges of the Choctaw Nation and other court personnel as designated by the
Court of Appeals of the Choctaw Nation. The Court of Appeals may revise the Rules for
the Professional Conduct of Attorneys or the Canons of Judicial Ethics at any time;
however, the Tribal Council must be given notice of the revisions sixty (60) days before
said rules or canons take effect.
B. The Rules of Professional Conduct for Attorneys and Canons of Judicial Ethics shall be
codified as Appendixes “A” and “B” respectively at the end of this Title 1.
APPENDIX “A” Rules of Professional Conduct for Attorneys Scope of the Rules
A. These Rules of Professional Conduct for Attorneys shall be rules of reason. They should
be interpreted with reference to the purposes of legal representation and of the law itself.
Some of the rules are imperatives, cast in the terms “shall” or “shall not.” Such Rules
define proper conduct for purposes of professional discipline. Others, generally cast in
the term “may,” are permissive and define areas under the Rules in which the lawyer has
professional discretion. No disciplinary action should be taken when the lawyer chooses
not to act or acts within the bounds of such discretion. Other Rules define the nature of
relationships between the lawyer and others. The Rules are thus partly obligatory and
disciplinary and partly constitutive and descriptive in that they define a lawyer’s
professional role.
B. The Rules presuppose a larger legal context shaping the lawyer’s role. That context
includes court rules and statutes relating to matters of licensure and laws defining specific
obligations of lawyers and substantive and procedural law in general. Compliance with
the Rules, as with all law in an open society, depends primarily upon understanding and
voluntary compliance, secondarily upon reinforcement by peer and public opinion and
finally, when necessary, upon enforcement through disciplinary proceedings. The Rules
do not, however, exhaust the moral and ethical considerations that should inform a
lawyer, for no worthwhile human activity can be completely defined by legal rules. The
Rules simply provide a framework for the ethical practice of law.
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C. Furthermore, for purposes of determining the lawyer’s authority and responsibility,
principles of substantive law external to these Rules determine whether an attorney-client
relationship exists. Most of the duties flowing from the attorney-client relationship attach
only after the client has requested the lawyer to render legal services and the lawyer has
agreed to do so. But there are some duties, such as that of confidentiality that may attach
when the lawyer agrees to consider whether an attorney-client relationship shall be
established. Whether an attorney-client relationship exists for any specific purpose can
depend on the circumstances and may be a question of fact.
D. Under various legal provisions, including statutory and common law, the responsibilities
of government lawyers may include authority concerning legal matters that ordinarily
reposes in the client in private attorney-client relationships. For example, a lawyer for a
government agency may have authority on behalf of the government to decide upon
settlement or whether to appeal from an adverse judgment. Also, government lawyers
may be authorized to represent several government agencies in intragovernmental legal
controversies in circumstances where a private lawyer could not represent multiple
private clients. They also may have authority to represent the “public interest” in
circumstances where a private lawyer would not be authorized to do so. These Rules do
not abrogate any such authority.
E. Failure to comply with an obligation or prohibition imposed by a Rule is a basis for
invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a
lawyer’s conduct will be made on the basis of the facts and circumstances as they existed
at the time of the conduct in question and in recognition of the fact that a lawyer often has
to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules
presuppose that whether or not discipline should be imposed for a violation, and the
severity of a sanction, depend on all the circumstances, such as the willfulness and
seriousness of the violation, extenuating factors and whether there have been previous
violations.
F. Violation of a Rule should not give rise to a cause of action nor should it create
presumption that a legal duty has been breached. The Rules are designed to provide
guidance to lawyers and to provide a structure for regulating conduct through disciplinary
agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose
of the Rules can be subverted when they are invoked by opposing parties as procedural
weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for
sanctioning a lawyer under the administration of a disciplinary authority, does not imply
that an antagonist in a collateral proceeding or transaction has standing to seek
enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment
any substantive legal duty of lawyers or the extra- disciplinary consequences of violating
such a duty.
G. Moreover, these Rules are not intended to govern or affect judicial application of either
the attorney-client or work product privilege. Those privileges were developed to
promote compliance with law and fairness in litigation. In reliance on the attorney-client
privilege, clients are entitled to expect that communications within the scope of the
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privilege will be protected against compelled disclosure. The attorney-client privilege is
that of the client and not of the lawyer. The fact that in exceptional situations the lawyer
under the Rules has limited discretion to disclose a client confidence does not vitiate the
proposition that, as a general matter, the client has a reasonable expectation that
information relating to the client will not be voluntarily disclosed and that disclosure of
such information may be judicially compelled only in accordance with recognized
exceptions to the attorney-client and work product privileges.
H. The lawyer’s exercise of discretion not to disclose information under Rule 1.6 should not
be subject to reexamination. Permitting such reexamination would be incompatible with
the general policy of promoting compliance with law through assurances that
communications will be protected against disclosure.
I. This Section on the Scope of the Rules provides general orientation to the Rules, but the
text of each Rule is authoritative.
PREAMBLE: Responsibilities of the Lawyer
A. A lawyer, as a member of the legal profession, is a representative of clients, an officer of
the legal system and a public citizen having special responsibility for the quality of
justice.
B. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer
provides a client with an informed understanding of the client’s legal rights and
obligations and explains their practical implications. As advocate, a lawyer zealously
asserts the client's position under the rules of the adversary system. As negotiator, a
lawyer seeks a result advantageous to the client but consistent with requirements of
honest dealing with others. As an evaluator, a lawyer acts by examining a client’s legal
affairs and reporting about them to the client or to others.
C. In addition to these representational functions, a lawyer may serve as a third-party
neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.
Some of these Rules apply directly to lawyers who are or have served as third-party
neutrals. In addition, there are Rules that apply to lawyers who are not active in the
practice of law or to practicing lawyers even when they are acting in a nonprofessional
capacity. For example, a lawyer who commits fraud in the conduct of a business is
subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation.
D. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer
should maintain communication with a client concerning the representation. A lawyer
should keep in confidence information relating to representation of a client except so far
as disclosure is required or permitted by the Rules of Professional Conduct or other law.
E. A lawyer’s conduct should conform to the requirements of the law, both in professional
service to clients and in the lawyer's business and personal affairs. A lawyer should use
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the law’s procedures only for legitimate purposes and not to harass or intimidate others.
A lawyer should demonstrate respect for the legal system and for those who serve it,
including judges, other lawyers and public officials. While it is a lawyer’s duty, when
necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold
legal process.
F. As a public citizen, a lawyer should seek improvement of the law, access to the legal
system, the administration of justice and the quality of service rendered by the legal
profession. As a member of a learned profession, a lawyer should cultivate knowledge of
the law beyond its use for clients, employ that knowledge in reform of the law and work
to strengthen legal education. In addition, a lawyer should further the public’s
understanding of and confidence in the rule of law and the justice system because legal
institutions in a constitutional democracy depend on popular participation and support to
maintain their authority. A lawyer should be mindful of deficiencies in the administration
of justice and of the fact that the poor, and sometimes persons who are not poor, cannot
afford adequate legal assistance. Therefore, all lawyers should devote professional time
or resources and use civic influence to ensure equal access to our system of justice for all
those who because of economic or social barriers cannot afford or secure adequate legal
counsel. A lawyer should aid the legal profession in pursuing these objectives and should
help the bar regulate itself in the public interest.
G. Many of a lawyer’s professional responsibilities are prescribed in the Rules of
Professional Conduct, as well as substantive and procedural law. However, a lawyer is
also guided by personal conscience and the approbation of professional peers. A lawyer
should strive to attain the highest level of skill, to improve the law and the legal
profession and to exemplify the legal profession’s ideals of public service.
H. A lawyer’s responsibilities as a representative of clients, an officer of the legal system
and a public citizen are usually harmonious. Thus, when an opposing party is well
represented, a lawyer can be a zealous advocate on behalf of a client and at the same time
assume that justice is being done. So also, a lawyer can be sure that preserving client
confidences ordinarily serves the public interest because people are more likely to seek
legal advice, and thereby heed their legal obligations, when they know their
communications will be private.
I. In the nature of law practice, however, conflicting responsibilities are encountered.
Virtually all difficult ethical problems arise from conflict between a lawyer’s
responsibilities to clients, to the legal system and to the lawyer’s own interest in
remaining an ethical person while earning a satisfactory living. The Rules of Professional
Conduct often prescribe terms for resolving such conflicts. Within the framework of
these Rules, however, many difficult issues of professional discretion can arise. Such
issues must be resolved through the exercise of sensitive professional and moral
judgment guided by the basic principles underlying the Rules. These principles include
the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests,
within the bounds of the law, while maintaining a professional, courteous and civil
attitude toward all persons involved in the legal system.
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J. The legal profession is largely self-governing. Although other professions also have been
granted powers of self-government, the legal profession is unique in this respect because
of the close relationship between the profession and the processes of government and law
enforcement. This connection is manifested in the fact that ultimate authority over the
legal profession is vested largely in the courts.
K. To the extent that lawyers meet the obligations of their professional calling, the occasion
for government regulations is obviated. Self-regulation also helps maintain the legal
profession’s independence from government domination. An independent legal
profession is an important force in preserving government under law, for abuse of legal
authority is more readily challenged by a profession whose members are not dependent
on government for the right to practice.
L. The legal profession’s relative autonomy carries with it special responsibilities of selfgovernment. The profession has a responsibility to assure that its regulations are
conceived in the public interest and not in furtherance of parochial or self-interested
concerns of the bar. Every lawyer is responsible for observance of the Rules of
Professional Conduct. A lawyer should also aid in securing their observance by other
lawyers. Neglect of these responsibilities compromises the independence of the
profession and the public interest which it serves.
M. Lawyers play a vital role in the preservation of society. The fulfillment of this role
requires an understanding by lawyers of their relationship to our legal system. The Rules
of Professional Conduct, when properly applied, serve to define that relationship.
DEFINITIONS
A. In the construction of this Act, the following rules of construction and definitions shall be
observed unless inconsistent with the manifest intent of the Legislature or the context
clearly requires otherwise:
1. “Belief” or “Believes” denotes that the person involved actually supposed the fact in
question to be true. A person’s belief may be inferred from circumstances.
2. “Confirmed in writing,” when used in reference to the informed consent of a person,
denotes informed consent that is given in writing by the person or a writing that a
lawyer promptly transmits to the person confirming an oral informed consent. See
paragraph (6) for the definition of “informed consent.” If it is not feasible to obtain or
transmit the writing at the time the person gives informed consent, then the lawyer
must obtain or transmit it within a reasonable time thereafter.
3. “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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4. “Firm” or “Law Firm” denotes a lawyer or lawyers in a private firm, lawyers
employed in the legal department of a corporation or other organization and lawyers
employed in a legal services organization.
5. “Fraud” or “Fraudulent” denotes conduct having a purpose to deceive and not merely
negligent misrepresentation or failure to apprise another of relevant information.
6. “Informed consent” denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation
about the material risks of and reasonably available alternatives to the proposed
course of conduct.
7. “Knowingly,” “Known,” or “Knows” denotes actual knowledge of the fact in
question. A person’s knowledge may be inferred from circumstances.
8. “Partner” denotes a member of a partnership and a shareholder in a law firm
organized as a professional corporation.
9. “Reasonable” or “Reasonably,” when used in relation to conduct by a lawyer, denotes
the conduct of a reasonably prudent and competent lawyer.
10. “Reasonable Belief” or “Reasonably Believes,” when used in reference to a lawyer,
denotes that the lawyer believes the matter in question and that the circumstances are
such that the belief is reasonable.
11. “Reasonably Should Know,” when used in reference to a lawyer, denotes that a
lawyer of reasonable prudence and competence would ascertain the matter in
question.
12. “Screened” denotes the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably
adequate under the circumstances to protect information that the isolated lawyer is
obligated to protect under these Rules or other law.
13. “Substantial,” when used in reference to degree or extent, denotes a material matter of
clear and weighty importance.
14. “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a
legislative body, administrative agency or other body acting in an adjudicative
capacity. A legislative body, administrative agency or other body acts in an
adjudicative capacity when a neutral official, after the presentation of evidence or
legal argument by a party or parties, will render a binding legal judgment directly
affecting a party's interests in a particular matter.
15. “Writing” or “written” denotes a tangible or electronic record of a communication or
representation, including handwriting, typewriting, printing, photostating,
photography, audio or video recording 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
and executed or adopted by a person with the intent to sign the writing.
B. Words and phrases are construed according to the common and approved usage of the
language, but technical words and phrases and others that have acquired a peculiar and
appropriate meaning in the law are construed and understood according to such meaning.
Client-Lawyer Relationship
Rule 1.1. Competence.
A lawyer shall provide competent representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation.
Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
A. Subject to paragraphs (C) and (D), a lawyer shall abide by a client's decisions concerning
the objectives of representation and, as required by Rule 1.4, shall consult with the client
as to the means by which they are to be pursued. A lawyer may take such action on
behalf of the client as is impliedly authorized to carry out the representation. A lawyer
shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer
shall abide by the client's decision, after consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial and whether the client will testify.
B. A lawyer may limit the scope of the representation if the limitation is reasonable under
the circumstances and the client gives informed consent.
C. A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a
good faith effort to determine the validity, scope, meaning or application of the law.
D. When a lawyer knows that a client expects assistance not permitted by the Rules of
Professional Conduct or other law, the lawyer shall consult with the client regarding the
relevant limitations on the lawyer’s conduct. A lawyer shall act with reasonable diligence
and promptness in representing a client.
Rule 1.3. Diligence.
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A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.4. Communication.
A. A lawyer shall:
1.
promptly inform the client of any decision or circumstance with respect to which the
client's informed consent, as defined in APPENDIX A is required by these Rules;
2.
reasonably consult with the client about the means by which the client’s objectives
are to be accomplished;
3.
keep the client reasonably informed about the status of the matter;
4.
promptly comply with reasonable requests for information; and
5. consult with the client about any relevant limitation on the lawyer’s conduct when the
lawyer knows that the client expects assistance not permitted by the Rules of
Professional conduct or other law.
B. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
Rule 1.5. Fees.
A. A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:
1.
the time and labor required, the novelty and difficulty of the questions involved, and
the skill requisite to perform the legal service properly;
2.
the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
3.
the fee customarily charged in the locality for similar legal services;
4.
the amount involved and the results obtained;
5.
the time limitations imposed by the client or by the circumstances;
6.
the nature and length of the professional relationship with the client;
7.
the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
8.
whether the fee is fixed or contingent.
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B. The scope of the representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client, preferably in writing,
before or within a reasonable time after commencing the representation, except when the
lawyer will charge a regularly represented client on the same basis or rate. Any changes
in the basis or rate of the fee or expenses shall also be communicated to the client.
C. A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by paragraph (D) or other law.
A contingent fee agreement shall be in writing signed by the client and shall state the
method by which the fee is to be determined, including the percentage or percentages that
shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other
expenses to be deducted from the recovery; and whether such expenses are to be
deducted before or after the contingent fee is calculated. The agreement must clearly
notify the client of any expenses for which the client will be liable whether or not the
client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall
provide the client with a written statement stating the outcome of the matter, and, if there
is a recovery, showing the remittance to the client and the method of determination.
D. A lawyer shall not enter into an arrangement for, charge, or collect:
1.
any fee in a domestic relations matter, the payment or amount of which is contingent
upon the securing of a divorce or upon the amount of alimony or support, or property
settlement in lieu thereof; or
2.
a contingent fee for representing a defendant in a criminal case.
E. A division of a fee between lawyers who are not in the same firm may be made only if:
1.
the division is in proportion to the services performed by each lawyer or each lawyer
assumes joint responsibility for the representation;
2.
the client agrees to the arrangement and the agreement is confirmed in writing; and
3.
the total fee is reasonable.
Rule 1.6. Confidentiality of Information.
A. A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out
the representation or the disclosure is permitted by paragraph (B).
B. A lawyer may reveal information relating to representation of a client to the extent the
lawyer reasonably believes necessary:
1. to prevent reasonably certain death or substantial bodily harm;
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2. to prevent the client from committing:
i.
a crime; or
ii.
a fraud that is reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the client has used or
is using the lawyer’s services;
3. to prevent, mitigate or rectify substantial injury to the financial interests or property
of another that is reasonably certain to result or has resulted from the client’s
commission of a crime or fraud in furtherance of which the client has used the
lawyer’s services, provided that the lawyer has first made reasonable efforts to
contact the client so that the client can rectify such criminal or fraudulent act, but the
lawyer has been unable to do so, or the lawyer has contacted the client and called
upon the client to rectify such criminal or fraudulent act and the client has refused or
has been unable to do so;
4. to secure legal advice about the lawyer’s compliance with these Rules;
5. to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against
the lawyer based upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's representation of the client; or
6. as permitted or required to comply with these Rules, other law or a court order.
Rule 1.7. Conflict of Interest: Current Clients.
A. Except as provided in paragraph (B), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
1. the representation of one client will be directly adverse to another client; or
2. there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client or
a third person or by a personal interest of the lawyer.
B. Notwithstanding the existence of a concurrent conflict of interest under paragraph (A), a
lawyer may represent a client if:
1. the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
2. the representation is not prohibited by law;
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3. the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding
before a tribunal; and
4. each affected client gives informed consent, confirmed in writing.
Rule 1.8. Conflict of Interest; Prohibited Transactions.
A. A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client unless:
1. the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing to the client
in a manner that can be reasonably understood by the client;
2. the client is advised in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel on the transaction; and
3. the client gives informed consent, in a writing signed by the client, to the essential
terms of the transaction and the lawyer’s role in the transaction, including whether the
lawyer is representing the client in the transaction.
B. A lawyer shall not use information relating to representation of a client to the
disadvantage of the client unless the client gives informed consent, except as permitted or
required by these Rules.
C. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift,
for the lawyer or a person related to the lawyer. Nor shall the lawyer prepare on behalf of
a client an instrument giving the lawyer or a person related to the lawyer any substantial
gift unless the lawyer or other recipient of the gift is related to the client. For purposes of
this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or
other relative.
D. Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate
an agreement giving the lawyer literary or media rights to a portrayal or account based in
substantial part on information relating to the representation.
E. A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated litigation, except that:
1. a lawyer may advance court costs and expenses of litigation, the repayment of which
may be contingent on the outcome of the matter; and
2. a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client.
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F. A lawyer shall not accept compensation for representing a client from one other than the
client unless:
1. the client gives informed consent;
2.
there is no interference with the lawyer's independence of professional judgment or
with the client-lawyer relationship; and
3.
information relating to representation of a client is protected as required by Rule 1.6.
G. A lawyer who represents two or more clients shall not participate in making an aggregate
settlement of the claims of or against the clients, or in a criminal case an aggregated
agreement as to guilty or nolo contendere pleas, unless each client gives informed
consent, in a writing signed by the client. The lawyer’s disclosure shall include the
existence and nature of all the claims or pleas involved and of the participation of each
person in the settlement.
H. A lawyer shall not:
1. make an agreement prospectively limiting the lawyer's liability to a client for
malpractice; or
2.
settle a claim or potential claim for such liability with an unrepresented client or
former client unless that person is advised in writing of the desirability of seeking and
is given a reasonable opportunity to seek the advice of independent legal counsel in
connection therewith.
I. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except that the lawyer may:
1. acquire a lien authorized by law or contract to secure the lawyer’s fee or expenses;
and
2. contract with a client for a reasonable contingent fee in a civil case.
J. A lawyer shall not have sexual relations with a client unless:
1. a consensual sexual relationship existed between them when the client-lawyer
relationship commenced and
2. the relationship does not result in a violation of Rule 1.7(A)(2).
K. While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (A)
through (I) that applies to any one of them shall apply to all of them.
Rule 1.9. Conflict of Interest: Duties to Former Client.
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A. A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person’s
interests are materially adverse to the interests of the former client unless the former
client gives informed consent, confirmed in writing.
B. A lawyer shall not knowingly represent a person in the same or a substantially related
matter in which a firm with which the lawyer formerly was associated had previously
represented a client
1. whose interests are materially adverse to that person; and
2. about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(C)
that is material to the matter;
unless the former client gives informed consent, confirmed in writing.
C. A lawyer who has formerly represented a client in a matter or whose present or former
firm has formerly represented a client in a matter shall not thereafter:
1. use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the
information has been generally known; or
2. reveal information relating to the representation except as these Rules would permit
or require with respect to a client.
Rule 1.10. Imputation of Conflicts of Interests: General Rule.
A. While lawyers are associated in a firm, none of them shall knowingly represent a client
when any one of them practicing alone would be prohibited from doing so by Rules 1.7
or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and
does not represent a significant risk of materially limiting the representation of the client
by the remaining lawyers in the firm.
B. When a lawyer has terminated an association with a firm, the firm is not prohibited from
thereafter representing a person with interests materially adverse to those of a client
represented by the formerly associated lawyer and not currently represented by the firm,
unless:
1. the matter is the same or substantially related to that in which the formerly associated
lawyer represented the client; and
2. any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9 (C) that
is material to the matter.
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C. A disqualification prescribed by this rule may be waived in writing by the affected client
under the conditions stated in Rule 1.7.
D. The disqualification of lawyers associated in a firm with former or current government
lawyers is governed by Rule 1.11.
E. Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8,
paragraph (K) of that Rule, and not this Rule, determines whether that prohibition also
applies to other lawyers associated in a firm with the personally prohibited lawyer.
Rule 1.11. Successive Government and Private Employment.
A. Except as law may otherwise expressly permit, a lawyer who has formerly served as a
public officer or employee of the Choctaw Nation:
1. is subject to Rule 1.9(C); and
2. shall not otherwise represent a client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee, unless the
appropriate government agency gives its informed consent, confirmed in writing, to
the representation.
B. When a lawyer is disqualified from representation under paragraph (A), no lawyer in a
firm with which that lawyer is associated may knowingly undertake or continue
representation in such a matter unless:
1. the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
2. written notice is promptly given to the appropriate government agency to enable it to
ascertain compliance with the provisions of this rule.
C. Except as law may otherwise expressly permit, a lawyer having information that the
lawyer knows is confidential government information about a person acquired when the
lawyer was a public officer or employee, may not represent a private client whose
interests are adverse to that person in a matter in which the information could be used to
the material disadvantage of that person. As used in this Rule, the term “confidential
government information” means information that has been obtained under the authority
of the Choctaw Nation and which, at the time this Rule applied, the Choctaw Nation is
prohibited by law from disclosing to the public or has a legal privilege not to disclose and
which is not otherwise available to the public. A firm with which that lawyer is
associated may undertake or continue representation in the matter only if the disqualified
lawyer is timely screened from any participation in the matter and is apportioned no part
of the fee therefrom.
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D. Except as law may otherwise expressly permit, a lawyer currently serving as a public
officer or employee :
1. is subject to Rules 1.7 and 1.9; and
2. shall not:
i.
participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental employment, unless
the appropriate agency of the Choctaw Nation gives its informed consent,
confirmed in writing; or
ii.
negotiate for private employment with any person who is involved as a party or as
lawyer for a party in a matter in which the lawyer is participating personally and
substantially, except that a lawyer serving as a law clerk to a judge, other
adjudicative officer or arbitrator may negotiate for private employment as
permitted by Rule 1.12 (B) and subject to the conditions stated in Rule 1.12 (B).
E. As used in this Rule, the term “matter” includes:
1. any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation, arrest
or other particular matter involving a specific party or parties; and
2. any other matter covered by the conflict of interest rules of the appropriate
government agency.
Rule 1.12. Former Judge or Arbitrator.
A. Except as stated in paragraph (D), a lawyer shall not represent anyone in connection with
a matter in which the lawyer participated personally and substantially as a judge or other
adjudicative officer, arbitrator, or law clerk to such a person, or as a mediator or other
third-party neutral, unless all parties to the proceeding give informed consent, confirmed
in writing.
B. A lawyer shall not negotiate for employment with any person who is involved as a party
or as lawyer for a party in a matter in which the lawyer is participating personally and
substantially as a judge or other adjudicative officer, or as an arbitrator, mediator or other
third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative
officer or arbitrator may negotiate for employment with a party or lawyer involved in a
matter in which the clerk is participating personally and substantially, but only after the
lawyer has notified the judge or other adjudicative officer or arbitrator.
C. If a lawyer is disqualified by paragraph (A), no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in the matter unless:
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1. the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
2. written notice is promptly given to the parties and any appropriate tribunal to enable
them to ascertain compliance with the provisions of this rule.
D. An arbitrator selected as a partisan of a party in a multimember arbitration panel is not
prohibited from subsequently representing that party.
Rule 1.13. Organization as Client.
A. A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents.
B. If a lawyer for an organization knows that an officer, employee or other person associated
with the organization is engaged in action, intends to act or refuses to act in a matter
related to the representation that is a violation of a legal obligation to the organization, or
a violation of law that reasonably might be imputed to the organization, and that is likely
to result in substantial injury to the organization, then the lawyer shall proceed as is
reasonably necessary in the best interest of the organization. Unless the lawyer
reasonably believes that it is not necessary in the best interests of the organization to do
so, the lawyer shall refer the matter to higher authority in the organization, including, if
warranted by the circumstances, to the highest authority that can act on behalf of the
organization as determined by applicable law.
C. Except as provided in paragraph (D), if:
1. despite the lawyer's efforts in accordance with paragraph (B), the highest authority
that can act on behalf of the organization insists upon or fails to address in a timely
and appropriate manner an action, or a refusal to act, that is clearly a violation of law,
and
2. the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization,
then the lawyer may reveal information relating to the representation whether or not Rule 1.6
permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to
prevent substantial injury to the organization.
D. Paragraph (C) shall not apply with respect to information relating to a lawyer's
representation of an organization to investigate an alleged violation of law, or to defend
the organization or an officer, employee or other constituent associated with the
organization against a claim arising out of an alleged violation of law.
E. A lawyer who reasonably believes that he or she has been discharged because of the
lawyer’s actions taken pursuant to paragraphs (B) or (C), or who withdraws under
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circumstances that require or permit the lawyer to take action under either of those
paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the
organization's highest authority is informed of the lawyer's discharge or withdrawal.
F. In dealing with an organization’s directors, officers, employees, members, shareholders
or other constituents, a lawyer shall explain the identity of the client when the lawyer
knows or reasonably should know that the organization's interests are adverse to those of
the constituents with whom the lawyer is dealing.
G. A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of Rule
1.7. If the organization's consent to the dual representation is required by Rule 1.7, the
consent shall be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.
Rule 1.14. Client with Diminished Capacity.
A. When a client’s capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for
some other reason, the lawyer shall, as far as reasonably possible, maintain a normal
client-lawyer relationship with the client.
B. When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately
act in the client's own interest, the lawyer may take reasonably necessary protective
action, including consulting with individuals or entities that have the ability to take action
to protect the client and, in appropriate cases, seeking the appointment of a guardian ad
litem, conservator or guardian.
C. Information relating to the representation of a client with diminished capacity is protected
by Rule 1.6. When taking protective action pursuant to paragraph (B), the lawyer is
impliedly authorized under Rule 1.6(A) to reveal information about the client, but only to
the extent reasonably necessary to protect the client's interests.
Rule 1.15. Safekeeping Property.
A. A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in
connection with a representation separate from the lawyer’s own property. Funds shall be
kept in a separate account maintained in the state where the lawyer's office is situated, or
elsewhere with the written consent of the client or third person. Other property shall be
identified as such and appropriately safeguarded. Complete records of such account funds
and other property shall be kept by the lawyer and shall be preserved for a period of five
years after termination of the representation.
B. A lawyer may deposit the lawyer’s own funds in a client trust account for the sole
purpose of paying bank service charges on that account but only in an amount necessary
for that purpose.
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C. A lawyer shall deposit into a client trust account legal fees and expenses that have been
paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses
incurred.
D. Upon receiving funds or other property in which a client or third person has an interest, a
lawyer shall promptly notify the client or third person. Except as stated in this Rule or
otherwise permitted by law or by agreement with the client, a lawyer shall promptly
deliver to the client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third person, shall promptly
render a full accounting regarding such property.
E. When in connection with a representation, a lawyer possesses funds or other property in
which both the lawyer and another person claim interests, the funds or other property
shall be kept separate by the lawyer until there is an accounting and severance of their
interests. If a dispute arises concerning their respective interests, the portion in dispute
shall be kept separate by the lawyer until the dispute is resolved, and the undisputed
portion of the funds shall be promptly distributed.
F. Where funds or other items of property entrusted to a lawyer have been impressed with a
specific purpose as to their use, they shall retain that specific character unless otherwise
authorized by a client or third person or prohibited by law. Where funds are impressed
with a specific purpose, a lawyer may not subject them to a counterclaim, set off for fees,
or subject them to a lien.
G. All members of the Bar who are required under the Rules of Professional Conduct, to
maintain a trust account for the deposit of clients’ funds entrusted to said lawyer, shall do
so and furnish information regarding said account(s) as hereinafter provided. Each
member of the Bar shall provide the Court of Appeals with the name of the bank or banks
in which the lawyer carries any trust account, the name under which the account is
carried and the account number. The lawyer or law firm shall provide such information at
the time of joining the Choctaw Nation Bar Association and shall review and revise the
information as necessary every year when the annual bar membership dues are paid.
Provisions will be made for a response by lawyers who do not maintain a trust account
and the reason for not maintaining said account. Information received by the Court of
Appeals as a result of this inquiry shall remain confidential except as provided by the
Rules Governing Disciplinary Proceedings. Failure of any lawyer to respond giving the
information requested by the Court of Appeals will be grounds for appropriate discipline.
H. A lawyer or law firm that holds funds of clients or third parties in connection with a
representation shall create and maintain an interest-bearing demand trust account and
shall deposit therein all such funds to the extent permitted by applicable banking laws,
that are nominal in amount or to be held for a short period of time in compliance with the
following provisions:
1. the account may be established with any bank or savings and loan association
authorized by federal or state law to do business and insured by the Federal Deposit
Insurance Corporation;
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2. the rate of interest payable on the account shall not be less than the rate paid by the
depository institution to regular, non-lawyer depositors. Higher rates offered by the
institution to customers whose deposits exceed certain time or quantity minimums,
such as those offered in the form of certificates of deposit, may be obtained by a
lawyer or law firm so long as there is no impairment of the right to withdraw or
transfer principal immediately (except as accounts generally may be subject to
statutory notification requirements), even though interest may be sacrificed thereby;
3. the lawyer or law firm shall not deposit funds belonging to the lawyer or law firm in
the account, except that funds necessary to comply with the depository institution’s
minimum balance requirements for the maintenance of the account or funds needed to
pay applicable fees and service charges may be deposited therein;
4. in determining whether to use the interest-bearing account herein specified, the
lawyer shall consider whether the funds to be invested could be utilized to provide a
positive net return to the client, taking into consideration the following factors:
i.
the amount of interest that the funds would earn during the period they are
expected to be deposited;
ii.
the cost of establishing and administering the account, including the cost of the
lawyer’s services and the cost of preparing any tax reports required for interest
accruing to a client's benefit; and
iii.
the capability of financial institutions to calculate and pay interest to individual
clients;
5. The requirements of paragraph (H) shall not apply if:
i.
it is not feasible for the lawyer or law firm to establish an interest-bearing trust
account for reasons beyond the control of the lawyer or law firm, such as the
unavailability of a financial institution which offers such an account in the
community where the principal office of the lawyer or law firm is situated, or
ii.
those financial institutions which offer such an account in the community where
the principal office of the lawyer or law firm is situated impose fees and service
charges that routinely exceed the interest generated by the account; and
6. Information necessary to determine compliance or justifiable reason for
noncompliance with the requirements of paragraph (H) shall be included in the
reporting required by paragraph (G) of this rule. If it appears that a lawyer or law firm
has not complied where it is feasible to do so, the matter may be referred for
appropriate disciplinary investigation and proceedings.
I. Every lawyer practicing or admitted to practice in this jurisdiction shall be deemed to
have consented to the reporting and production requirements mandated by this rule.
Rule 1.16. Declining or Terminating Representation.
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A. Except as stated in paragraph (C), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
1. the representation will result in violation of the Rules of Professional Conduct or
other law;
2. the lawyer’s physical or mental condition materially impairs the lawyer’s ability to
represent the client; or
3. the lawyer is discharged.
B. Except as stated in paragraph (C), a lawyer may withdraw from representing a client if:
1. withdrawal can be accomplished without material adverse effect on the interests of
the client;
2. the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
3. the client has used the lawyer's services to perpetrate a crime or fraud;
4. the client insists upon taking action that the lawyer considers repugnant or with which
the lawyer has a fundamental disagreement;
5. the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer’s services and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;
6. the representation will result in an unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by the client; or
7. other good cause for withdrawal exists.
C. A lawyer must comply with applicable law requiring notice to or permission of a tribunal
when terminating a representation. When ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding good cause for terminating the representation.
D. Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client,
allowing time for employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee or expenses that
has not been earned or incurred. The lawyer may retain papers relating to the client to the
extent permitted by other law.
Rule 1.17. Sale of Law Practice.
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A lawyer or a law firm (or the authorized representative of a lawyer or a law firm) may sell or
purchase a law practice, or an area of practice, including good will, if the following conditions
are satisfied:
A. The seller ceases to engage in the private practice of law, or in the area of practice that
has been sold, in the geographic area in the Choctaw Nation of Oklahoma in which the
practice has been conducted; and
B. The entire practice, or the entire area of practice, is sold to one or more lawyers or law
firms, except that:
1. the representation of any client who does not consent as provided in paragraph (C)
shall not be transferred;
2. matters shall not be transferred to a purchaser unless the seller has reasonable basis to
believe that the purchaser has the requisite knowledge and skill to handle such
matters, or reasonable assurances are obtained that such purchaser will either acquire
such knowledge and skill or associate with another lawyer having such competence;
3. matters shall not be transferred to a purchaser who would not be permitted to assume
such representation by reason of restrictions contained in Rules 1.7 through 1.10 or
other Rules; and
4. where matters in litigation are involved, any necessary judicial approvals of the
transfer of representation must be obtained.
C. The seller or the seller's representative shall give written notice to each client whose
representation is proposed to be transferred, stating:
1. a sale of the entire practice, or the entire area of practice, is proposed;
2. a transfer of the representation of such client to a specified lawyer, lawyers, or law
firm is contemplated;
3. the client has the right to take possession of the file and retain other counsel;
4. the existence and status of any funds or property held for the client, including but not
limited to retainers or other prepayments; and
5. the fact that the client’s consent to the transfer of the client’s files will be presumed if
the client does not take any action or does not otherwise object within ninety (90)
days of the date of the notice.
The signed written consent of each client whose representation is proposed to be transferred to a
purchaser must be obtained; provided that the client’s consent to the transfer of the client’s files
shall be presumed if the client does not take any action or does not otherwise object within
ninety (90) days of the date of the notice. If a client cannot be given notice, the representation of
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that client may be transferred to the purchaser only upon entry of an order so authorizing by a
court having jurisdiction. The seller must disclose to the court in camera information relating to
the representation only to the extent necessary to obtain an order authorizing the transfer of the
file.
D. The purchaser may, however, refuse to undertake the representation unless the client
consents to pay the purchaser fees at a rate not exceeding the fees charged by the
purchaser for rendering substantially similar services prior to the initiation of the
purchase negotiations.
Rule 1.18. Duties to Prospective Client
A. A person who discusses with a lawyer the possibility of forming a client-lawyer
relationship with respect to a matter is a prospective client.
B. Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a
prospective client shall not use or reveal information learned in the consultation, except
as Rule 1.9 would permit with respect to information of a former client.
C. A lawyer subject to paragraph (B) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially related matter if the
lawyer received information from the prospective client that could be significantly
harmful to that person in the matter, except as provided in paragraph (D). If a lawyer is
disqualified from representation under this paragraph, no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in such a
matter, except as provided in paragraph (D).
D. When the lawyer has received disqualifying information as defined in paragraph (C),
representation is permissible if:
1. both the affected client and the prospective client have given informed consent,
confirmed in writing, or:
2. the lawyer who received the information took reasonable measures to avoid exposure
to more disqualifying information than was reasonably necessary to determine
whether to represent the prospective client; and
i.
the disqualified lawyer is timely screened from any participation in the matter and
is apportioned no part of the fee therefrom; and
ii.
written notice is promptly given to the prospective client.
The Lawyer as Counselor
Rule 2.1. Advisor.
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In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors, that may be relevant to the client’s
situation.
Rule 2.2. Intermediary.
A. A lawyer may act as intermediary between clients if:
1. the lawyer consults with each client concerning the implications of the common
representation, including the advantages and risks involved, and the effect on the
attorney-client privileges, and obtains each client’s consent to the common
representation;
2. the lawyer reasonably believes that the matter can be resolved on terms compatible
with the clients’ best interests, that each client will be able to make adequately
informed decisions in the matter and that there is little risk of material prejudice to the
interests of any of the clients if the contemplated resolution is unsuccessful; and
3. the lawyer reasonably believes that the common representation can be undertaken
impartially and without improper effect on other responsibilities the lawyer has to any
of the clients.
B. While acting as intermediary, the lawyer shall consult with each client concerning the
decisions to be made and the considerations relevant in making them, so that each client
can make adequately informed decisions.
C. A lawyer shall withdraw as intermediary if any of the clients so request, or if any of the
conditions stated in paragraph (A) above is no longer satisfied. Upon withdrawal, the
lawyer shall not continue to represent any of the clients in the matter that was the subject
of the intermediation.
Rule 2.3. Evaluation for Use by Third Persons.
A. A lawyer may provide an evaluation of a matter affecting a client for the use of someone
other than the client if the lawyer reasonably believes that making the evaluation is
compatible with other aspects of the lawyer's relationship with the client.
B. When the lawyer knows or reasonably should know that the evaluation is likely to affect
the client's interests materially and adversely, the lawyer shall not provide the evaluation
unless the client gives informed consent.
C. Except as disclosure is authorized in connection with a report of an evaluation,
information relating to the evaluation is otherwise protected by Rule 1.6.
Rule 2.4. Lawyer Serving As Third-Party Neutral
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A. A lawyer serves as a third-party neutral when the lawyer assists two or more persons who
are not clients of the lawyer to reach a resolution of a dispute or other matter that has
arisen between them. Service as a third-party neutral may include service as an arbitrator,
a mediator or in such other capacity as will enable the lawyer to assist the parties to
resolve the matter.
B. A lawyer serving as a third-party neutral shall inform unrepresented parties that the
lawyer is not representing them. When the lawyer knows or reasonably should know that
a party does not understand the lawyer’s role in the matter, the lawyer shall explain the
difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one
who represents a client.
The Lawyer as Advocate
Rule 3.1. Meritorious Claims and Contentions.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis for doing so that is not frivolous, which includes a good faith argument for an
extension, modification or reversal of existing law. A lawyer for the defendant in a criminal
proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless
so defend the proceeding as to require that every element of the case be established.
Rule 3.2. Expediting Litigation.
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the
client.
Rule 3.3. Candor Toward the Tribunal.
A. A lawyer shall not knowingly:
1. make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
2. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel;
3. offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the
lawyer reasonably believes is false; or
4. fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a
criminal or fraudulent act by the client.
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B. A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
C. The duties stated in paragraphs (A) and (B) continue to the conclusion of the proceeding,
and apply even if compliance requires disclosure of information otherwise protected by
Rule 1.6.
D. In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known
to the lawyer which will enable the tribunal to make an informed decision, whether or not
the facts are adverse.
Rule 3.4. Fairness to Opposing Party and Counsel.
A lawyer shall not:
A. unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall
not counsel or assist another person to do any such act;
B. falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a
witness that is prohibited by law;
C. knowingly disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists;
D. in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing party;
E. in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that
will not be supported by admissible evidence, assert personal knowledge of facts in issue
except when testifying as a witness, or state a personal opinion as to the justness of a
cause, the credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or
F. request a person other than a client to refrain from voluntarily giving relevant information
to another party unless:
1. the person is a relative or an employee or other agent of a client; and
2. the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.
Rule 3.5. Impartiality and Decorum of the Tribunal.
A lawyer shall not:
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A. seek to influence a judge or other official by means prohibited by law;
B. communicate ex parte with such a person during the proceeding unless authorized to do
so by law or court order; or
C. engage in conduct intended to disrupt a tribunal.
Rule 3.6. Trial Publicity.
A. A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that a reasonable lawyer would expect to
be disseminated by means of public communication if the lawyer knows or reasonably
should know that it will have an imminent and materially prejudicial effect on the factfinding process in an adjudicatory proceeding relating to the matter and involving lay
fact-finders or the possibility of incarceration.
B. Notwithstanding paragraph (A), a lawyer may make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial undue prejudicial effect
of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made
pursuant to this paragraph shall be limited to such information as is necessary to mitigate
the recent adverse publicity.
C. No lawyer associated in a firm or government agency with a lawyer subject to paragraph
(A) shall make a statement prohibited by paragraph (A).
Rule 3.7. Lawyer as Witness.
A. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary
witness unless:
1. the testimony relates to an uncontested issue;
2. the testimony relates to the nature and value of legal services rendered in the case; or
3. disqualification of the lawyer would work substantial hardship on the client.
B. A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is
likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
Rule 3.8. Special Responsibilities of a Prosecutor.
The prosecutor in a criminal case shall:
A. refrain from prosecuting a charge that the prosecutor knows is not supported by probable
cause;
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B. make reasonable efforts to assure that the accused has been advised of the right to, and
the procedure for obtaining, counsel and has been given reasonable opportunity to obtain
counsel;
C. not seek to obtain from an unrepresented accused a waiver of important pretrial rights,
such as the right to a preliminary hearing;
D. make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in
connection with sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the prosecutor is relieved of
this responsibility by a protective order of the tribunal;
E. not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence
about a past or present client unless the prosecutor reasonably believes:
1. the information sought is not protected from disclosure by any applicable privilege;
2. the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and
3. there is no other feasible alternative to obtain the information;
F. except for statements that are necessary to inform the public of the nature and extent of
the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from
making extrajudicial comments that have a substantial likelihood of heightening public
condemnation of the accused and exercise reasonable care to prevent investigators, law
enforcement personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that the prosecutor
would be prohibited from making under Rule 3.6 or this Rule;
G. The lawyer upon whom a subpoena is served shall be afforded a reasonable time to file a
motion to quash compulsory process of his/her attendance. Whenever a subpoena is
issued for a lawyer who then moves to quash it by invoking attorney-client privilege, the
prosecutor may not press further in any proceeding for the subpoenaed lawyer’s
appearance as a witness until an adversary in camera hearing has resulted in a judicial
ruling which resolves all the challenges advanced in the lawyer's motion to quash.
Rule 3.9. Advocate in Non-adjudicative Proceedings.
A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and
shall conform to the provisions of Rules 3.3 (A) through (C), 3.4 (A) through (C), and 3.5.
Transactions with Persons Other than Clients
Rule 4.1. Truthfulness in Statements to Others.
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In the course of representing a client a lawyer shall not knowingly:
A. make a false statement of material fact or law to a third person; or
B. fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule
1.6.
Rule 4.2. Communication with Person Represented by Counsel.
In representing a client, a lawyer shall not communicate about the subject of the representation
with a person the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Rule 4.3. Dealing with Unrepresented Person.
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall
not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should
know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer
shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal
advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows
or reasonably should know that the interests of such a person are or have a reasonable possibility
of being in conflict with the interests of the client.
Rule 4.4. Respect for Rights of Third Person.
A. In representing a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods of obtaining
evidence that violate the legal rights of such a person.
B. A lawyer who receives a document relating to the representation of the lawyer’s client
and knows or reasonably should know that the document was inadvertently sent shall
promptly notify the sender.
Law Firms and Associations
Rule 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers.
A. A partner in a law firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable efforts to
ensure that the firm has in effect measures giving reasonable assurance that all lawyers in
the firm conform to the Rules of Professional Conduct.
B. A lawyer having direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
C. A lawyer shall be responsible for another lawyer's violation of the Rules of Professional
Conduct if:
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1. the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
2. the lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices, or has direct supervisory authority over the other
lawyer, and knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.
Rule 5.2. Responsibilities of a Subordinate Lawyer.
A. A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer
acted at the direction of another person.
B. A subordinate lawyer does not violate the rules of professional conduct if that lawyer acts
in accordance with a supervisory lawyer's reasonable resolution of an arguable question
of professional duty.
Rule 5.3. Responsibilities Regarding Non-lawyer Assistants.
With respect to a non-lawyer employed or retained by or associated with a lawyer:
A. a partner, and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that the person’s conduct
is compatible with the professional obligations of the lawyer;
B. a lawyer having direct supervisory authority over the non-lawyer shall make reasonable
efforts to ensure that the person’s conduct is compatible with the professional obligations
of the lawyer; and
C. a lawyer shall be responsible for conduct of such a person that would be a violation of the
Rules of Professional Conduct if engaged in by a lawyer if:
1. the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct
involved; or
2. the lawyer is a partner or has comparable managerial authority in the law firm in
which the person is employed, or has direct supervisory authority over the person,
and knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.
Rule 5.4. Professional Independence of a Lawyer.
A. A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
1. an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide
for the payment of money, over a reasonable period of time after the lawyer’s death,
to the lawyer’s estate or to one or more specified persons;
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2. a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer
may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative
of that lawyer the agreed-upon purchase price;
3. a lawyer who undertakes to complete unfinished legal business of a deceased lawyer
may pay to the estate of the deceased lawyer that proportion of the total compensation
which fairly represents the services rendered by the deceased lawyer; and
4. a lawyer or law firm may include non-lawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-sharing
arrangement.
B. A lawyer shall not form a partnership with a non-lawyer if any of the activities of the
partnership consist of the practice of law.
C. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to
render legal services for another to direct or regulate the lawyer’s professional judgment
in rendering such legal services.
D. A lawyer shall not practice with or in the form of a professional corporation or
association authorized to practice law for a profit, if:
1. a non-lawyer owns any interest therein, except that a fiduciary representative of the
estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time
during administration;
2. a non-lawyer is a corporate director or officer thereof or occupies the position of
similar responsibility in any form of association other than a corporation; or
3. a non-lawyer has the right to direct or control the professional judgment of a lawyer.
Rule 5.5. Unauthorized Practice of Law.
A. A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction, or assist another in doing so.
B. A lawyer who is not admitted to practice in the courts of the Choctaw Nation of
Oklahoma shall not:
1. except as authorized by these Rules or other law, establish an office or other
systematic and continuous presence for the purpose of practicing law in the courts of
the Choctaw Nation of Oklahoma; or
2. hold out to the public or otherwise represent that the lawyer is admitted to practice
law in the courts of the Choctaw Nation of Oklahoma.
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C. Subject to the provisions of 5.5(A), a lawyer admitted in a United States jurisdiction, and
not disbarred or suspended from practice in any jurisdiction, may provide legal services
on a temporary basis in a jurisdiction where not admitted to practice that:
1. are undertaken in association with a lawyer who is admitted to practice in this
jurisdiction and who actively participates in the matter;
2. are in or reasonably related to a pending or potential proceeding before a tribunal in
this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is
authorized by law or order to appear in such proceeding or reasonably expects to be
so authorized;
3. are in or reasonably related to a pending or potential arbitration, mediation, or other
alternative dispute resolution proceeding in this or another jurisdiction, if the services
arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which
the lawyer is admitted to practice and are not services for which the forum requires
pro hac vice admission; or
4. are not within paragraphs (C)(2) or (C)(3) and arise out of or are reasonably related to
the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
D. A lawyer admitted in another United States jurisdiction, and not disbarred or suspended
from practice in any jurisdiction, may provide legal services in this jurisdiction that:
1. are provided to the lawyer’s employer or its organizational affiliates in connection
with the employer’s matters, provided the employer does not render legal services to
third persons and are not services for which the forum requires pro hac vice
admission; or
2. are services that the lawyer is authorized to provide by federal law or other law of this
jurisdiction.
Rule 5.6. Restrictions on Right to Practice.
A lawyer shall not participate in offering or making:
A. a partnership, shareholders, operating, employment, or other similar type of agreement
that restricts the right of a lawyer to practice after termination of the relationship, except
an agreement concerning benefits upon retirement; or
B. an agreement in which a restriction on the lawyer’s right to practice is part of the
settlement of a client controversy.
Rule 5.7. Responsibilities Regarding Law-Related Services.
A. A lawyer shall be subject to the Rules of Professional Conduct with respect to the
provision of law-related services, as defined in paragraph (B), if the law-related services
are provided:
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1. By the lawyer in circumstances that are not distinct from the lawyer’s provision of
legal services to clients; or
2. In other circumstances by an entity controlled by the lawyer individually or with
others if the lawyer fails to take reasonable measures to assure that a person obtaining
the law-related services knows that the services are not legal services and that the
protections of the client-lawyer relationship do not exist.
B. The term “law-related services” denotes services that might reasonably be performed in
conjunction with and in substance are related to the provision of legal services, and that
are not prohibited as unauthorized practice of law when provided by a non-lawyer.
Public Service
Rule 6.1. Pro Bono Public Service.
A lawyer should render public interest legal service.
A lawyer may discharge this responsibility by:
A. providing professional services at no fee or a reduced fee to persons of limited means or
to public service or charitable groups or organizations;
B. serving without compensation in public interest activities that improve the law, the legal
system, or the legal profession; or
C. financial support for organizations that provide legal services to persons of limited
means.
Rule 6.2. Accepting Appointments.
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good
cause, such as:
A. representing the client is likely to result in violation of the Rules of Professional Conduct
or other law;
B. representing the client is likely to result in an unreasonable financial burden on the
lawyer; or
C. the client or the cause is so repugnant to the lawyer as to be likely to impair the clientlawyer relationship or the lawyer's ability to represent the client.
Rule 6.3. Membership in Legal Services Organization.
A lawyer may serve as a director, officer or member of a legal services organization, apart from
the law firm in which the lawyer practices, notwithstanding that the organization serves persons
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having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a
decision or action of the organization:
A. if participating in the decision or action would be incompatible with the lawyer's
obligations to a client under Rule 1.7; or
B. where the decision or action could have a material adverse effect on the representation of
a client of the organization whose interests are adverse to a client of the lawyer.
Rule 6.4. Law Reform Activities Affecting Client Interests.
A lawyer may serve as a director, officer or member of an organization involved in reform of the
law or its administration notwithstanding that the reform may affect the interests of a client of the
lawyer. When the lawyer knows that the interests of a client may be materially affected by a
decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify
the client.
Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services Programs
A. A lawyer who, under the auspices of a program sponsored by a nonprofit organization or
court, provides short-term limited legal services to a client without expectation by either
the lawyer or the client that the lawyer will provide continuing representation in the
matter:
1. is subject to Rules 1.7 and 1.9(A) only if the lawyer knows that the representation of
the client involves a conflict of interest; and
2. is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with
the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(A) with respect to the
matter.
B. Except as provided in paragraph (A)(2), Rule 1.10 is inapplicable to a representation
governed by this Rule.
Information About Legal Services
Rule 7.1. Communications Concerning a Lawyer’s Services.
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s
services. A communication is false or misleading if it contains a material misrepresentation of
fact or law, or omits a fact necessary to make the communication considered as a whole not
materially misleading.
Rule 7.2. Advertising.
A. Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through
written, recorded or electronic communication, including public media.
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B. A lawyer shall not give anything of value, directly or indirectly, to a person for
recommending the lawyer’s services except that a lawyer may
1. pay the reasonable costs of advertisements or communications permitted by this Rule;
2. pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer
referral service. A qualified lawyer referral service is a lawyer referral service that has
been approved by an appropriate regulatory authority;
3. pay for a law practice in accordance with Rule 1.17; and
4. without paying anything solely for the referral, refer clients to another lawyer or a
non-lawyer professional pursuant to an agreement not otherwise prohibited under
these Rules that provides for the other person to refer clients or customers to the
lawyer, if
i.
the reciprocal referral agreement is not exclusive, and
ii.
the client is informed of the existence and nature of the agreement.
C. Any communication made pursuant to this rule shall include the name and office address
of at least one lawyer or law firm responsible for its content.
Rule 7.3. Direct Contact With Prospective Clients.
A. A lawyer shall not by in-person, live telephone or real-time electronic contact solicit
professional employment from a prospective client when a significant motive for the
lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:
1. is a lawyer, or
2. has a family, close personal, or prior professional relationship with the lawyer.
B. A lawyer shall not solicit professional employment from a prospective client by written,
recorded or electronic communication or by in-person, telephone or real-time electronic
contact even when not otherwise prohibited by paragraph (A), if:
1. the prospective client has made known to the lawyer a desire not to be solicited by the
lawyer; or
2. the solicitation involves coercion, duress or harassment.
C. Every written, recorded or electronic communication from a lawyer soliciting
professional employment from a prospective client known to be in need of legal services
in a particular matter shall include the words “Advertising Material” on the outside of the
envelope, if any, and at the beginning and ending of any recorded or electronic
communication, unless the recipient of the communication is a person specified in
paragraphs (A)(1) or (A)(2).
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D. Notwithstanding the prohibitions in paragraph (A), a lawyer may participate with a
prepaid or group legal service plan operated by an organization not owned or directed by
the lawyer that uses in-person or telephone contact to solicit memberships or
subscriptions for the plan from persons who are not known to need legal services in a
particular matter covered by the plan.
Rule 7.4. Communication of Fields of Practice and Certification.
A. A lawyer may, by advertisement or otherwise, communicate the fact that the lawyer does
or does not practice in particular fields of law or limits his practice to or concentrates in
particular fields of law.
B. A lawyer shall not state or imply that the lawyer is certified as a specialist in a particular
field of law except as follows:
1. a lawyer admitted to engage in patent practice before the United States Patent and
Trademark Office may use the designation “Patent Attorney” or a substantially
similar designation;
2. a lawyer engaged in admiralty practice may use the designation “Admiralty,”
“Proctor in Admiralty” or a substantially similar designation; and
3. a lawyer who is certified as a specialist in a particular field of law or law practice
by the Court of Appeals of the Choctaw Nation may communicate that fact, but
only in accordance with the rules prescribed by that Court; and
4. a lawyer who is certified as a specialist in a particular field of law or law practice
by the official licensing authority of another state in which the lawyer is licensed
may communicate that fact, but only in accordance with all rules and
requirements of such state’s licensing authority, and provided that the lawyer also
communicates that such certification is not recognized by the Court of Appeals of
the Choctaw Nation.
Rule 7.5. Firm Names and Letterheads.
A. A lawyer shall not use a firm name, letterhead or other professional designation that
violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not
imply a connection with a government agency or with a public or charitable legal services
organization and is not otherwise in violation of Rule 7.1.
B. A law firm with offices in more than one jurisdiction may use the same name or other
professional designation in each jurisdiction, but identification of the lawyers in an office
of the firm shall indicate the jurisdictional limitations on those not licensed to practice in
the jurisdiction where the office is located.
C. The name of a lawyer holding a public office shall not be used in the name of a law firm,
or in communications on its behalf, during any substantial period in which the lawyer is
not actively and regularly practicing with the firm.
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D. Lawyers may state or imply that they practice in a partnership or other organization only
when that is the fact.
Maintaining the Integrity of the Legal Profession
Rule 8.1. Bar Admission and Disciplinary Matters.
An applicant for admission to the bar, or a lawyer in connection with a bar admission application
or in connection with a disciplinary matter, shall not:
A. knowingly make a false statement of material fact; or
B. fail to disclose a fact necessary to correct a misapprehension known by the person to have
arisen in the matter, or knowingly fail to respond to a lawful demand for information
from an admissions or disciplinary authority, except that this rule does not require
disclosure of information otherwise protected by Rule 1.6.
Rule 8.2. Judicial and Legal Officials.
A. A lawyer shall not make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or appointment
to judicial or legal office.
B. A lawyer who is a candidate for judicial office shall comply with the applicable
provisions of the Code of Judicial Conduct.
Rule 8.3. Reporting Professional Misconduct.
A. A lawyer who knows that another lawyer has committed a violation of the Rules of
Professional Conduct that raises a substantial question as to that lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate
professional authority.
B. A lawyer having knowledge that a judge has committed a violation of applicable rules of
judicial conduct that raises a substantial question as to the judge's fitness for office shall
inform the appropriate authority.
C. This rule does not require disclosure of information otherwise protected by Rule 1.6.
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
A. violate or attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of another;
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B. commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or
fitness as a lawyer in other respects;
C. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
D. engage in conduct that is prejudicial to the administration of justice;
E. state or imply an ability to influence improperly a government agency or official or to
achieve results by means that violate the Rules of Professional Conduct or other law; or
F. knowingly assist a judge or judicial officer in conduct that is a violation of applicable
rules of judicial conduct or other law.
Rule 8.5. Disciplinary Authority; Choice of Law
A. Disciplinary Authority. A lawyer admitted to practice in the courts of the Choctaw Nation
is subject to the disciplinary authority of The Court of Appeals of the Choctaw Nation,
regardless of where the lawyer’s conduct occurs. A lawyer not admitted to practice in the
courts of the Choctaw Nation are also subject to the disciplinary authority of The Court
of Appeals of the Choctaw Nation if the lawyer provides or offers to provide any legal
service in the Choctaw Nation. A lawyer may be subject to the disciplinary authority of
both the Choctaw Nation and another jurisdiction for the same conduct.
B. Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules
of professional conduct to be applied shall be as follows:
1. for conduct in connection with a matter pending before a tribunal, the rules of the
jurisdiction in which the tribunal sits, unless the rules of the tribunal provide
otherwise; and
2. for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct
occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the
rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject
to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which
the lawyer reasonably believes the predominant effect of the lawyer’s conduct will
occur.
APPENDIX “B”
CODE OF JUDICIAL CONDUCT
Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary.
An independent and honorable judiciary is indispensable to justice in our society. A judge should
participate in establishing, maintaining and enforcing high standards of conduct, and should
personally observe those standards so that the integrity and independence of the judiciary will be
preserved. The provisions of this Code are to be construed and applied to further that objective.
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Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All
of the Judge’s Activities.
A. A judge should respect and comply with the law and act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow family, social, political or other relationships to influence the
judge’s judicial conduct or judgment. A judge should not lend the prestige of judicial
office to advance the private interests of the judge or others; nor should a judge convey or
permit others to convey the impression that they are in a special position to influence the
judge. A judge should not testify voluntarily as a character witness.
Canon 3. A Judge Should Perform the Duties of Judicial Office Impartially and Diligently.
A. Judicial Duties in General. The judicial duties of a judge take precedence over all the
judges other activities. The judge’s judicial duties include all the duties of the judge’s
office prescribed by law. In performance of those duties, the following standards apply.
B. Adjudicative Responsibilities.
1. A judge should be faithful to the law and maintain professional competence in it. A
judge should not be swayed by partisan interests, public clamor or fear of criticism.
2. A judge should require order and decorum in proceedings before the judge.
3. A judge should be patient, dignified and courteous to litigants, witnesses, lawyers and
others with whom the judge deals in official capacity, and should require similar
conduct of lawyers, and of the court staff, court officials and others subject to the
judge’s direction and control.
4. A judge should perform judicial duties without bias or prejudice. A judge should not,
in the performance of judicial duties, by words or conduct manifest bias or prejudice,
including but not limited to bias or prejudice based upon race, sex, religion, national
origin, disability, age, sexual orientation or socioeconomic status, and should not
permit staff, court officials and others subject to the judge’s direction and control to
do so.
5. A judge should require lawyers in proceedings before the judge to refrain from
manifesting, by words or conduct, bias or prejudice based upon race, sex, religion,
national origin, disability, age, sexual orientation or socioeconomic status, against
parties, witnesses, counsel or others. This Section 3(B)(5) does not preclude
legitimate advocacy when race, sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status, or other similar factors, are issues in the
proceeding.
6. A judge should accord to every person who has a legal interest in a proceeding, or
that person’s lawyer, the right to be heard according to law. A judge should not
initiate, nor consider ex parte communications, or consider other communications
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made to the judge outside the presence of the parties concerning a pending or
impending proceeding except that:
i.
Where circumstances require, ex parte communications for scheduling,
administrative purposes or emergencies that do not deal with substantive matters
or issues on the merits are authorized; provided that the judge reasonably believes
that no party will gain a procedural or tactical advantage as a result of the ex parte
communication.
ii.
A judge may obtain the advice of a disinterested expert on the law applicable to a
proceeding before the judge if the judge gives notice to the parties of the person
consulted and the substance of the advice, with a record being made, and affords
the parties reasonable opportunity to respond.
iii.
A judge may consult with court personnel whose function is to aid the judge in
carrying out the judge’s adjudicative responsibilities or with other judges.
iv.
A judge may initiate or consider any ex parte communications when expressly
authorized by law to do so.
7. A judge should dispose of all judicial matters promptly, efficiently and fairly.
8. A judge should not, while a proceeding is pending or impending in any court, make
any public comment that might reasonably be expected to affect the outcome or
impair its fairness or make any non-public comment that might substantially interfere
with a fair trial or hearing. The judge should require similar abstention on the part of
court personnel subject the judge’s direction and control. This Section does not
prohibit judges from making public statements in the course of their official duties or
from explaining for public information the procedures of the court. This Section does
not apply to proceedings in which the judge is a litigant in a personal capacity.
9. A judge should not, with respect to cases, controversies or issues that are likely to
come before the court, make pledges, promises or commitments that are inconsistent
with the impartial performance of the adjudicative duties of the office.
10. Except as permitted by the individual judge, the use of cameras, television or other
recording or broadcasting equipment is prohibited in a courtroom or in the immediate
vicinity of a courtroom.
i.
Before cameras, television or other recordings or broadcasting equipment are
used, express permission of the judge must be obtained.
ii.
The judge shall prescribe the conditions and specific rules under which such
equipment may be used.
iii.
Media personnel shall not distract participants or impair the dignity of the
proceedings.
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iv.
No witness or party who expresses any objection to the judge shall be
photographed nor shall the testimony of such a witness or party be broadcast,
recorded or telecast.
v.
There shall be no photographing or broadcasting of:
a) any proceeding which under the laws of this State are required to be held in
private; or
b) any portion of any criminal proceedings until the issues have been submitted
to the jury for determination unless all accused persons who are then on trial
shall have affirmatively, on the record, given their consent to the
photographing, recording or broadcasting.
vi.
No media representative shall offer, nor shall any party, witness or juror accept,
consideration in exchange for consent to telecast, broadcast or photograph the
judicial proceeding.
C. Managerial Responsibilities.
1. A judge should diligently discharge the judge’s managerial responsibilities, without
bias or prejudice and maintain professional competence in judicial administration,
and should cooperate with other judges and court officials in the administration of
court business.
2. A judge should require staff, court officials and others subject to the judge’s direction
and control to observe the standards of fidelity and diligence that apply to the judge
and to refrain from manifesting bias or prejudice in the performance of their official
duties.
3. A judge with supervisory authority for the judicial performance of other judges
should take reasonable measures to assure the prompt disposition of matters before
them and the proper performance of their other judicial responsibilities.
4. A judge should not make unnecessary appointments. A judge should exercise the
power of appointment impartially and on the basis of merit. A judge should avoid
nepotism and favoritism. A judge should not approve compensation of appointees
beyond the fair value of services rendered.
D. Disciplinary Responsibilities. A judge should report to the appropriate disciplinary
authority any unprofessional conduct of a judge or lawyer of which the judge may
become aware.
E. Disqualification.
1. A judge should disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to instances
where:
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i.
the judge has a personal bias or prejudice concerning a party or a party’s lawyer,
or personal knowledge of disputed evidentiary facts concerning the proceeding;
ii.
the judge served as a lawyer in the matter in controversy, or a lawyer with whom
the judge previously practiced law served during such association as a lawyer
concerning the matter, or the judge has been a material witness concerning it;
iii.
The judge knows that he or she, individually or as a fiduciary, or the judge’s
spouse, parent or child wherever residing, or any other member of the judge's
family residing in the judge’s household, has an economic interest in the subject
matter in controversy or has an interest more than de minimis that could be
substantially affected by the proceeding;
iv.
The judge or the judge’s spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person;
a) is a party to the proceeding, or an officer, director or trustee of a party;
b) is acting as a lawyer in the proceeding;
c) is known by the judge to have an interest more than de minimis that could be
substantially affected by the proceeding;
d) is to the judge’s knowledge likely to be a material witness in the proceeding.
v.
The Judge has made a public statement that commits, or appears to commit, the
judge with respect to an issue in the proceeding or the controversy in the
proceeding.
2. A judge shall keep informed about the judge’s personal and fiduciary economic
interests, and make a reasonable effort to keep informed about the personal economic
interests of the judge’s spouse and minor children residing in the judge’s household.
F. Remittal of Disqualification. A judge disqualified by the terms of Section 3(E) may
disclose on the record the basis of the judge’s disqualification. If following disclosure of
any basis for disqualification other than personal bias or prejudice concerning a party, the
parties and lawyers, without participation by the judge, all agree that the judge should not
be disqualified, and the judge is then willing to participate, the judge may participate in
the proceeding. The agreement shall be incorporated in the record of the proceeding.
Canon 4. A Judge Should so Conduct the Judge’s Extra-Judicial Activities as to Minimize
the Risk of Conflict with Judicial Obligations.
A. Extra-judicial Activities in General. A judge should conduct all of the judge’s extrajudicial activities so that they do not:
1. cast reasonable doubt on the judge's capacity to act impartially as a judge;
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2. demean the judicial office; or
3. interfere with the proper performance of judicial duties.
B. Avocational Activities. A judge may speak, write, lecture, teach and participate in other
extra-judicial activities concerning the law, the legal system, the administration of justice
and non-legal subjects, subject to the requirements of this Code.
C. Governmental, Civic or Charitable Activities.
1. A judge may appear at a public hearing before or consult with an executive or
legislative body or official on matters concerning the law, the legal system, or the
administration of justice.
2. A judge should not accept appointment to a committee or commission or other
governmental position with the Choctaw Nation that is concerned with issues of fact
or policy on matters other than the improvement of the law, the legal system or the
administration of justice unless with specific approval of the Court of Appeals of the
Choctaw Nation. A judge may, however, represent a country, state or locality on
ceremonial occasions or in connection with historical, educational or cultural
activities.
3. A judge may serve as an officer, director, trustee or non-legal advisor of an
organization or governmental agency devoted to the improvement of the law, the
legal system or the administration of justice or of an educational, religious, charitable,
fraternal or civic organization not conducted for profit, subject to the following
limitations and the other requirements of this Code.
i.
A judge should not serve as an officer, director, trustee or non-legal advisor if it is
likely that the organization
a) will be engaged in proceedings that would ordinarily come before the judge,
or
b) will be engaged frequently in adversary proceedings in the court of which the
judge is a member or in any court subject to the appellate jurisdiction of the
court of which the judge is a member.
ii.
A judge as an officer, director, trustee or non-legal advisor, or as a member or
otherwise:
a) may assist such an organization in planning fundraising and may participate in
the management and investment of the organization’s funds, but shall not
personally participate in the solicitation of funds or other fundraising
activities;
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b) may make recommendations to public and private fund-granting organizations
on projects and programs concerning the law, the legal system or the
administration of justice;
c) should not personally participate in membership solicitation if the solicitation
might reasonably be perceived as coercive or, except as permitted in Section
4(C)(3)(i)(a), if the membership solicitation is essentially a fundraising
mechanism;
d) should not use or permit the use of the prestige of judicial office for fundraising or membership solicitation.
D. Financial Activities.
1. A judge should not engage in financial and business dealings that:
i.
may reasonably be perceived to exploit the judge's judicial position, or
ii.
involve the judge in frequent transactions or continuing business relationships
with those lawyers or other persons likely to come before the court on which the
judge serves.
2. A judge may, subject to the requirements of this Code, hold and manage investments
of the judge and members of the judge’s family, including real estate, and engage in
other remunerative activity.
3. A judge should not serve as an officer, director, manager, general partner, advisor or
employee of any business entity except that a judge may, subject to the requirements
of this Code, manage and participate in:
i.
a business closely held by the judge or members of the judge’s family, or
ii.
a business entity primarily engaged in investment of the financial resources of the
judge or members of the judge’s family.
4. A judge should manage the judge’s investments and other financial interests to
minimize the number of cases in which the judge is disqualified. As soon as the judge
can do so without serious financial detriment, the judge should divest himself or
herself of investments and other financial interests that might require frequent
disqualifications.
5. A judge should not accept, and should urge members of the judge’s family residing in
the judge’s household, not to accept, a gift, bequest, favor or loan from anyone except
for:
i.
a gift incidental to a public testimonial, books, tapes and other resource materials
supplied by publishers on a complimentary basis for official use, or an invitation
to the judge and the judge’s spouse or guest to attend a bar-related function or an
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activity devoted to the improvement of the law, the legal system or the
administration of justice;
ii.
a gift, award or benefit incident to the business, profession or other separate
activity of a spouse or other family member of a judge residing in the judge’s
household, including gifts, awards and benefits for the use of both the spouse or
other family member and the judge (as spouse or family member), provided the
gift, award or benefit could not reasonably be perceived as intended to influence
the judge in the performance of judicial duties;
iii.
ordinary social hospitality;
iv.
a gift from a relative or friend, for a special occasion, such as a wedding,
anniversary or birthday, if the gift is fairly commensurate with the occasion and
the relationship;
v.
a gift, bequest, favor or loan from a relative or close personal friend whose
appearance or interest in a case would in any event require disqualification under
Section 3(E);
vi.
a loan from a lending institution in its regular course of business on the same
terms generally available to persons who are not judges;
vii.
a scholarship or fellowship award on the same terms and based on the same
criteria applied to other applicants; or
viii.
any other gift, bequest, favor or loan, but only if the donor is not a party or other
person who has come or is likely to come or whose interests have come or likely
to come before the judge; and the judge reports it as may be required by law.
E. Fiduciary Activities.
1. A judge should not serve as executor, administrator or other personal representative,
trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or
person of a member of the judge’s family, and then only if such service will not
interfere with the proper performance of judicial duties.
2. A judge should not serve as fiduciary if it is likely that the judge as a fiduciary will be
engaged in proceedings that would ordinarily come before the judge, or if the estate,
trust or ward becomes involved in adversary proceedings in the court on which the
judge serves or one under its appellate jurisdiction.
3. The same restrictions on financial activities that apply to a judge personally also
apply to the judge while acting in a fiduciary capacity.
F. Service as Arbitrator or Mediator. A judge should not act as an arbitrator or mediator.
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G. Practice of Law. A judge shall not practice law in the courts of the Choctaw Nation.
Notwithstanding, a judge may, without compensation, give legal advice to and draft or
review documents for a member of the judge's family. A judge may appear pro se in a
matter in which he is a litigant.
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Application of the Code of Judicial Conduct
A. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs
judicial functions, including an officer such as an administrative law judge, magistrate,
court commissioners, special master or referee, is a judge within the meaning of this
Code. All judges should comply with this Code except as provided below.
B. Continuing Part-time Judge. A continuing part-time judge:
1. is not required to comply:
i.
except while serving as a judge, with Section 3(B)(9); and
ii.
at any time with Sections 2(C), 4(C)(2), 4(D)(3), 4(E)(1), 4(F), 4(G), 5(A)(1),
5(B)(2) and 5(D).
2. should not practice law in the court on which the judge serves and shall not act as a
lawyer in a proceeding in which the judge has served as a judge or in any other
proceeding related thereto.
C. Time and Compliance. A person to whom this Code becomes applicable should comply
immediately with all provisions of this Code except Sections 4(D)(2), 4(D)(3) and 4(E)
and should comply with these Sections as soon as reasonably possible and should do so
in any event within the period of one year.
Rules Governing Disciplinary Proceedings
RULE 1. Jurisdiction of the Court in the Discipline of Lawyers and the Unauthorized
Practice of Law
Rule 1.1: Declaration of Jurisdiction.
The Court of Appeals of the Choctaw Nation shall have the exclusive power and authority to
discipline attorneys and counselors at law or revoke the permit to practice law granted to
attorneys and counselors at law in the courts of the Choctaw Nation of Oklahoma. The Court of
Appeals possesses original and exclusive jurisdiction in all matters involving admission of
persons to practice law in the courts of the Choctaw Nation of Oklahoma, and to discipline for
cause, any and all persons licensed to practice law in the courts of the Choctaw Nation of
Oklahoma, hereinafter referred to as lawyers, and any other persons, corporations, partnerships,
or any other entities (hereinafter collectively referred to as “persons”) engaged in the
unauthorized practice of law.
Rule 1.2: Implied Exceptions Negated.
The enumeration herein of certain categories of misconduct as grounds for discipline shall not be
all-inclusive nor shall the failure to specify any particular act of misconduct be a tolerance
thereof by the Court of Appeals.
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Rule 1.3: Discipline for any Act Contrary to the Prescribed Standards of Conduct.
The commission by any lawyer of any act contrary to prescribed standards of conduct, whether
in the course of his professional capacity, or otherwise, which act would reasonably be found to
bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not
the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a
condition precedent to the imposition of discipline.
Rule 1.4: Controversies Regarding Fees.
A. All members of the Bar who are required under the Oklahoma Rules of Professional
Conduct, Rule 1.15, to maintain a trust account for the deposit of clients’ funds entrusted
to said attorney, shall do so and furnish evidence thereof as provided for in Rule 1.15.
Information received by the Court of Appeals as a result of such inquiry shall remain
confidential unless a grievance is filed against a lawyer which, in the opinion of the Court
of Appeals, may warrant disciplinary action in regard to the handling of said trust
account. Failure of any lawyer to respond giving the information requested will be
grounds for appropriate discipline.
B. Controversies as to the amount of fees shall not be considered a basis for charges in a
disciplinary proceeding unless it is made to appear that the amount demanded is
extortionate or fraudulent.
Rule 1.5: Code of Professional Responsibility.
The Court of Appeals has adopted the Rules of Professional Conduct for Attorneys, which may
hereafter be modified by the Court of Appeals, as the standard of professional conduct of all
lawyers. Any lawyer violating these Rules of Professional Conduct shall be subject to discipline,
as herein provided.
Rule 1.6: Code of Judicial Conduct.
The Court of Appeals has adopted the Code of Judicial Conduct as a proper guide and reminder
for judges of what the people have a right to expect from them. Complaints against any judge for
violating any of the Canons of such Code shall be referred directly to the Chief Judge of the
Court of Appeals for such action as the Court may consider appropriate. Complaints against a
judge for misconduct unrelated to the performance of his judicial duties shall be forwarded to the
Clerk of the Choctaw Nation Court of Appeals for investigation and disciplinary proceedings as
herein provided for other lawyers.
Rule 1.7: Discipline.
Discipline by the Court of Appeals shall be disbarment, suspension of a respondent from the
practice of law for a definite term or until the further order of the Court of Appeals, public
censure or private reprimand; the Court of Appeals may, in its discretion, suspend or defer the
imposition of discipline subject to the fulfillment of specified conditions by the respondent. In
fashioning the degree of discipline to be imposed for misconduct, the Court of Appeals shall
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consider prior misconduct where the facts are charged in the complaint and proved and the
accused has been afforded an opportunity to rebut such charges.
Rule 2. Reserved
Rule 3. Reserved
Rule 4. Reserved
Rule 5. Filing and Processing of Grievances and Requests for Investigation.
Rule 5.1: Form of Grievances, Requests for Investigations, and Referrals Into a Diversion
Program.
A. Each grievance or request for investigation (grievances and requests for investigation
both being hereinafter referred to as a “grievance) involving a lawyer or involving the
unauthorized practice of law, shall be in writing and signed by the person filing the same,
except that the Court of Appeals may, in its discretion, appoint a Special Prosecutor to
institute an investigation on the basis of facts or allegations involving a lawyer or the
unauthorized practice of law brought to their attention in any manner whatsoever. A
lawyer or any other person will be immediately notified of the receipt of a grievance and
furnished a copy thereof.
B. In matters involving allegations of the unauthorized practice of law, the Special
Prosecutor shall make such investigation as is otherwise provided herein, and may
request any involved person who is not a lawyer to make a voluntary response to the
allegations of the unauthorized practice of law. The provisions of this Rule requiring a
mandatory response to the Special Prosecutor shall not be applicable to non-lawyers.
C. In a matter involving lesser misconduct, as defined in Rule 5.1(D), prior to the filing of
formal charges, the Special Prosecutor may refer the respondent to the diversionary
program of a state bar association with the consent of the Court of Appeals. Such
program may include, but is not limited to, law office management assistance, Lawyers
Helping Lawyers, psychological counseling, continuing legal education programs, and
professional responsibility classes. Before referring the respondent to the diversionary
program, the Special Prosecutor shall consider the following criteria:
1. the nature of the misconduct alleged,
2. whether the misconduct alleged appears to be an isolated event,
3. whether participation in the diversionary program could benefit the respondent, and
4. whether participation in the diversionary program might jeopardize protection of the
public.
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D. Lesser misconduct is misconduct that does not warrant a sanction restricting the
respondent’s license to practice law. The misconduct alleged shall not be considered
lesser misconduct if any of the following considerations apply:
1. the misconduct involved the misappropriation of funds;
2. the misconduct resulted in or is likely to result in substantial prejudice to a client or
other person;
3. the respondent has been publicly disciplined in the last three years;
4. the misconduct is of the same nature as misconduct for which the respondent has been
disciplined in the last five years;
5. the misconduct involved dishonesty, deceit, fraud or misrepresentation by the
respondent; or
6. the misconduct constitutes a serious crime (any felony or lesser crime that reflects
adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other
respects).
E. The respondent must agree to waive confidentiality to the extent that a monitor or the
Diversionary Program may make disclosures or reports to the Court of Appeals. The
respondent must also fulfill any other conditions that the Court of Appeals may impose.
Before the respondent is allowed to enter the diversionary program the Court of Appeals
and the respondent shall agree on a resolution to the grievance if the respondent is
successful in the diversionary program and fulfilling any other conditions imposed by the
Court of Appeals.
F. The respondent has the right to not participate in the diversionary program. In that event,
the matter shall proceed as though no offer of referral was extended.
G. The complaining party will be advised that the respondent has been referred to a
diversionary program.
H. After the respondent has entered the diversionary program the disciplinary matter shall be
held in abeyance pending the respondent’s successful completion of the program and any
other conditions required by the Court of Appeals. Successful completion of the
diversionary program and any other conditions imposed by the Court of Appeals shall
result in the disposition agreed upon with the Special Prosecutor before the respondent
entered the diversionary program.
Rule 5.2: Filing and Processing of Grievances and Requests for Investigation.
After making such preliminary investigation as the Special Prosecutor shall deem appropriate
either (1) notify the person filing the grievance and the lawyer that the allegations of the
grievance are inadequate, incomplete or insufficient to warrant the further attention of the Court
of Appeals, or (2) file and serve a copy of the grievance (or, in the case of an investigation
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instituted on the part of the Special Prosecutor without the filing of a signed grievance, a recital
of the relevant facts or allegations) upon the lawyer, who shall thereafter make a written response
which contains a full and fair disclosure of all the facts and circumstances pertaining to the
respondent lawyer’s alleged misconduct unless the respondent’s refusal to do so is predicated
upon expressed constitutional grounds. Deliberate misrepresentation in such response shall itself
be grounds for discipline. The failure of a lawyer to answer within twenty (20) days after service
of the grievance (or recital of facts or allegations), or such further time as may be granted by the
Court of Appeals, shall be grounds for discipline. The Court of Appeals shall make such further
investigation of the grievance and response as the court may deem appropriate before taking any
action.
Rule 5.3: Initial Action by the Court of Appeals.
Upon the completion of the investigation, the Special Prosecutor shall either:
A. Decide that no formal disciplinary proceedings be commenced, in which event the
Special Prosecutor shall advise the person filing the grievance that the factual
circumstances do not warrant further investigation or disciplinary action;
B. If, after a disciplinary action has been commenced, the Court of Appeals finds the
grievance is wholly frivolous or without merit based upon the investigation of the Special
Prosecutor, it shall direct the immediate expungement of any grievance, and upon such
expungement, respondent against whom such frivolous grievance has been filed and
expungement has been ordered by the Court of Appeals, may treat the grievance as if it
was never asserted. Provided, however, that said expungement shall not occur until sixty
(60) days after the date of notification to the complainant of that decision;
C. Send a letter of admonishment to the respondent with the approval of the Court of
Appeals;
D. Decide that no formal proceedings be instituted against the respondent, conditioned upon
the respondent’s acceptance of a private reprimand, and in such event, the respondent
shall be notified to appear before the Court of Appeals at a time and place to be fixed in
the notice for the purpose of receiving a private reprimand. If the respondent does not
appear at the time and place so fixed in such notice, the Commission may give further
consideration to the advisability of filing a formal complaint;
E. File a formal written complaint with the Court of Appeals within thirty (30) days of the
vote of the Court of Appeals unless the court grants an extension of time for reasonable
cause; or
F. In matters involving the unauthorized practice of law, the Special Prosecutor shall either
dismiss the grievance or initiate any action permitted by law through the appropriate
court.
Rule 5.4: Grievances Privileged.
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Matters contained in grievances submitted to the Special Prosecutor or the Court of Appeals, and
statements, oral or written, with respect thereto, shall be privileged. Litigation or the threat of
litigation by a respondent lawyer against a person filing a grievance by reason of such filing may
be grounds in itself for discipline.
Rule 5.5: Continuation of Proceedings notwithstanding Failure to Prosecute, Withdrawal
or Settlement of Grievance.
Neither unwillingness nor neglect of the person filing the grievance to sign a grievance, or to
prosecute a charge, nor the settlement or compromise of the dispute between the person filing the
grievance and the lawyer, or restitution by the lawyer, shall of itself require abatement of the
processing of any grievance, and the termination of such processing shall be at the sole discretion
of the Court of Appeals after recommendation by the Special Prosecutor.
Rule 5.6: Pending Litigation.
Processing of grievances shall not be deferred or abated because of substantial similarity to the
material allegations of pending criminal or civil litigation, or administrative proceedings, unless
authorized by the Court of Appeals in its discretion, for good cause shown.
Rule 5.7: Confidentiality of Disciplinary Investigations and Results.
Investigations by the Special Prosecutor shall be confidential, and the results thereof shall not be
made public until authorized by the Court of Appeals or as provided in Rule 6.1. However, when
no formal complaint is filed in the Court of Appeals, at the option of the respondent, the final
disposition of a grievance may be made public. In all cases the person who filed a grievance and
the respondent shall be notified of the final disposition thereof.
Rule 5.8: Confidentiality of Disciplinary Records.
The files and records in disciplinary investigations shall be kept private and confidential except
that the Court of Appeals shall be permitted to provide relevant information contained in such
files and records to the following:
A. Any court or bar association or committee thereof, including State, Tribal or Federal, of
any jurisdiction which exercises disciplinary authority over attorneys.
B. Any grievance committee of the Association or any grievance committee of any state or
county bar association (whether in or outside Oklahoma) which is investigating or has
investigated a complaint against the lawyer, or whose investigation of another lawyer
necessitates such information.
C. Any law enforcement agency which makes a proper showing that such information is
necessary to the conduct of a pending investigation, with notice to the lawyer.
Rule 5.9: Proceedings which are to be a Matter of Public Record.
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All proceedings brought under the provisions of Rules 6, 7, 8 and 11 of these Rules shall be filed
with the Clerk of the Court of Appeals and be a matter of public record at all times, except as
limited by Rule 5.7.
Rule 6. Formal Proceedings before the Court of Appeals
Rule 6.1. Manner of Instituting.
Formal proceedings in matters involving misconduct by lawyers shall be conducted by the Court
of Appeals.
The proceeding shall be initiated by a formal complaint prepared by the Special Prosecutor and
filed with the Clerk of the Choctaw Nation Court of Appeals. Upon the expiration of the
respondent’s time to answer, the complaint and the answer, if any, shall thereupon be lodged
with the Clerk of the Choctaw Nation Court of Appeals and the complaint, as well as all further
filings and proceedings with respect thereto, shall be a matter of public record. Three (3) copies
shall be filed with each original instrument.
Rule 6.2. Contents of the Formal Complaint.
The complaint shall set forth the specific facts constituting the alleged misconduct, and if prior
conduct resulting in discipline, or evidence from prior investigations, is relied upon to enhance
discipline, the prior acts or conduct relied upon shall be set forth.
Rule 6.2A. Emergency Interim Suspension Orders and Related Relief.
A. Verified Complaint and Service.
The Special Prosecutor, upon receipt of sufficient evidence demonstrating that a lawyer
subject to these Rules has committed conduct in violation of the Rules of Professional
Conduct, or is personally incapable of practicing law as set forth in Rule 10 hereof, and
where such conduct poses an immediate threat of substantial and irreparable public harm,
may file a verified complaint in accordance with Rule 6 hereof requesting interim
suspension and other appropriate relief. A copy of the complaint shall be served
personally or by certified mail, return receipt requested, upon the respondent by the
Special Prosecutor; provided that, if a respondent refuses to sign for, or otherwise does
not claim the certified mail, then the Special Prosecutor may serve the complaint and any
further papers, notices and orders in accordance with Rule 12.1 hereof.
B. Immediate Interim Suspension.
1. Upon filing of the verified complaint, the Court may issue an order directing the
respondent to object and show cause within ten (10) days why such order of interim
suspension should not be entered.
2. In the event such an objection is timely filed, the matter shall be set for hearing at the
earliest possible time. Such hearing shall be before the Court of Appeals.
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C. Related Relief.
1. Any order of interim suspension may include such other orders to the respondent as
may be necessary to preserve and recover funds and other property of respondent’s
clients or other persons, and the Court of Appeals may, upon its own motion issue an
order appointing counsel and authorizing said counsel to initiate civil proceedings in
the appropriate court to obtain an order to preserve any such funds maintained in a
financial institution or elsewhere.
2. In the event that the respondent does not file an objection to the order as set forth in
Rule 6.2A(B) above, or in the event that such an objection is timely filed, but, after
healing on the matter, the order is entered, and the Court may, upon its own motion:
i.
require the respondent to give written notices to affected clients and otherwise
comply with Rule 9.1 hereof within ten (10) days of the hearing or, where no
timely objection to the order was filed, within ten (10) days of the expiration of
the time for filing such an objection; and/or
ii.
issue an order requiring the appointment of an attorney(s) to wind up the
respondent’s business in accordance with Rule 9.3 hereof.
D. Further Proceedings-Accelerated.
Disposition. In addition to the above, the respondent shall file an answer to the complaint
with the Clerk of the Choctaw Nation Court of Appeals pursuant to Rule 6.4, and, except
as provided above, all proceedings thereafter shall be conducted in accordance with the
Rules Governing Disciplinary Proceedings where no interim suspension is sought;
provided that, the respondent may include in his/her answer a request for accelerated
disposition, and, thereafter, the entire proceedings shall be concluded by the Court of
Appeals without appreciable delay.
Rule 6.3. Notification of Filing of Complaint.
At the direction of the Chief Judge of the Court of Appeals, the Clerk shall immediately notify
the respondent of the filing of a formal complaint. Such notification shall include a copy of the
complaint and shall be by regular mail, except that the notice to the respondent shall be sent by
certified mail to the respondent’s last known address.
Rule 6.4. Response to Complaint.
The respondent shall within twenty (20) days after the mailing of the complaint file an answer
with the Clerk of the Choctaw Nation Court of Appeals. The respondent may not challenge the
complaint by demurrer or motion. In the event the respondent fails to answer, the charges shall
be deemed admitted, except that evidence shall be submitted for the purpose of determining the
discipline to be imposed.
Rule 6.5. Amendment of Complaint.
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After the complaint has been filed, the Special Prosecutor may amend the complaint to add or
delete allegations as permitted under the general rules of civil procedure, subject to the
respondent’s right to file an answer within twenty (20) days after such amendment.
Rule 6.6. Reserved.
Rule 6.7. Setting and Notification of Hearing.
The Court of Appeals shall notify the respondent of the time and place for the hearing, which
shall not be less than thirty (30) nor more than sixty (60) days from the date of filing the answer
to the complaint. Extensions of this period may be granted by the Court of Appeals for good
cause shown.
Rule 6.8. Depositions and Discovery.
A. Depositions may be taken and read, and documents and things may be required to be
produced for inspection and/or copying, in the same manner as in civil cases;
B. Upon written request made fifteen (15) days before the trial of the cause, the respondent
or his attorney shall be given the names and addresses of witnesses to be used by the
prosecution; and
C. The Special Prosecutor shall have the authority to enter into stipulations of fact and law
concerning a formal complaint against a respondent lawyer.
Rule 6.9. Hearing Open to the Public.
Formal proceedings before the Court of Appeals in disciplinary proceedings shall be open to the
public.
Rule 6.10. Record of Proceedings.
Formal proceedings before the Court of Appeals shall be stenographically recorded and
transcribed unless the facts are stipulated.
Rule 6.11. Power of the Court of Appeals in the Conduct of Proceedings.
A. The Court of Appeals shall have the power and authority to: Administer oaths and
affirmations and hear evidence, and compel, by subpoena, the attendance of witnesses
and the production of books, records, papers, documents or other tangible evidence,
either for deposition or for trial; witnesses shall be paid, upon demand, mileage and
witness fees as provided by the law in civil cases.
B. Oaths or affirmations may be administered, and subpoenas may be issued, by the Court of
Appeals, or by any officer authorized by law to administer an oath or issue subpoenas.
C. Whenever any person (except the respondent in a case where his answer may not be
compelled under Rule 6.11(D) below) subpoenaed or ordered to appear by the Court of
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Appeals to give testimony, or to produce books, records, papers, documents or other
tangible evidence, fails to comply, or whenever any person (except the respondent
pursuant to Rule 6.11(D) below), present at a hearing, refuses to testify or to answer any
proper question or to obey
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