RULES GOVERNING THE MUSCOGEE (CREEK) NATION BAR AND ATTORNEY

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PROFESSIONAL CONDUCT

PURPOSE

Chapter 1 - Admission

§ 1-1: Eligibility for Admission and Practice

§ 1-2: Roll of Attorneys

§ 1-3: Assignment and Use of Bar Identification Number

§ 1-4: Application for Admission

§ 1-5: Documentation Required

§ 1-6: Assessment and Review

§ 1-7: Reapplication After Denial of Admission

§ 1-8: Oath of Admission

§ 1-9: Completing Admission

§ 1-10: Bar Records

§ 1-11: Certificate of Good Standing

Chapter 2- Membership

§ 2-1: Membership In Good Standing

§ 2-2: Member Classification

§ 2-3: Annual Renewal Required for Active Membership In Good Standing

§ 2-4: Delinquency of Renewal; Inactive by Operation of Law

§ 2-5: Extended Delinquency; Suspended by Operation of Law

Chapter 3- Attorney Professional Responsibility

§ 3-1: Minimum Standard of Attorney Professional Conduct

§ 3-2: Bar Counsel for Professional Responsibility (BCPR)

§ 3-3: Sanctions

§ 3-4: Summary Discipline for Direct or Indirect Contempt

Chapter 4- Discipline, Conviction or Plea in Another Jurisdiction

§ 4-1: Acts or Omissions; Name Stricken and Disbarment by Operation of Law

§ 4-2: Affirmative Duty to Report

Chapter 5- Grievances Regarding Alleged Professional Misconduct

§ 5-1: Filing of Grievance Regarding Alleged Professional Misconduct

§ 5-2: Form of Grievances

§ 5-3: Notice to Respondent

§ 5-4: Grievances Privileged

§ 5-5: Confidentiality of Grievance Investigations and Results

§ 5-6: Preliminary Investigation

§ 5-7: Report and Recommendation

§ 5-8: Show-Cause Hearing

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Chapter 6- Reinstatement/Application for Readmission

§ 6-1: Petition for Reinstatement After Disbarment Under Chapter 5

§ 6-2: Petition for Reinstatement After Disbarment Under Chapter 4

§ 6-3: Application for Early Readmission After Suspension Under § 2-2(C)(2)

Chapter 7- Unauthorized Practice of Law

§ 7-1: By an Attorney

§ 7-2: By a Non-Attorney

§ 7-3: Inapplicable to Duly Seated, Non-Attorney Supreme Court Justices

Chapter 8 – Licensed Legal Interns

§ 8-1: Procedure to Obtain License

§ 8-2: Assessment and Review

§ 8-3: Oath of Licensed Legal Intern

§ 8-4: Supervising Attorneys

§ 8-5: Signing of Pleadings

§ 8-6: Limitations on Licensed Legal Interns

§ 8-7: Termination of the Limited License

Appendix A – Muscogee (Creek) Nation Rules of Professional Conduct for Attorneys

SCOPE

TERMINOLOGY

Section 1- Client-Lawyer Relationship

Rule 1.1- Competence

Rule 1.2- Scope of Representation and Allocation of Authority

Rule 1.3- Diligence

Rule 1.4- Communications

Rule 1.5- Fees

Rule 1.6- Confidentiality of Information

Rule 1.7- Conflict of Interest: General Rule

Rule 1.8- Conflict of Interest: Prohibited Transactions

Rule 1.9- Conflict of Interest: Former Clients

Rule 1.10- Imputed Conflicts of Interest and Disqualification: General Rule

Rule 1.11- Successive Government and Private Employment

Rule 1.12- Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

Rule 1.13- Organization as Client

Rule 1.14- Client with Diminished Capacity

Rule 1.15- Safekeeping Property

Rule 1.16- Declining or Terminating Representation

Rule 1.17- Sale of Law Practice

Rule 1.18- Duties to Prospective Client

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Section 2: Counselor

Rule 2.1- Advisor

Rule 2.2- Evaluation for Use by Third Persons

Rule 2.3- Lawyer Serving as Third-Party Neutral

Section 3: Advocate

Rule 3.1- Meritorious Claims and Contentions

Rule 3.2- Expediting Litigation

Rule 3.3- Candor toward the Tribunal

Rule 3.4- Fairness to Opposing Party and Counsel

Rule 3.5- Impartiality and Decorum of the Tribunal

Rule 3.6- Trial Publicity

Rule 3.7- Lawyer as Witness

Rule 3.8- Special Responsibilities of a Prosecutor

Rule 3.9- Advocate in Nonadjudicative Proceedings

Section 4: Transactions with Persons Other Than Clients

Rule 4.1- Truthfulness in Statements to Others

Rule 4.2- Communication with Person Represented by Counsel

Rule 4.3- Dealing with Unrepresented Person

Rule 4.4- Respect for Rights of Third Persons

Section 5: Law Firms and Associations

Rule 5.1- Responsibilities of Partners, Managers, and Supervisory Lawyers

Rule 5.2- Responsibilities of a Subordinate Lawyer

Rule 5.3- Responsibilities Regarding Nonlawyer Assistants

Rule 5.4- Professional Independence of a Lawyer

Rule 5.5- Unauthorized Practice of Law

Rule 5.6- Restrictions on Right to Practice

Rule 5.7- Responsibilities Regarding Law-Related Services

Section 6: Public Service

Rule 6.1- Pro Bono Public Service

Rule 6.2- Accepting Appointments

Rule 6.3- Membership in Legal Services Organization

Rule 6.4- Law Reform Activities Affecting Client Interests

Rule 6.5- Nonprofit and Court-Annexed Limited Legal Services Programs

Section 7: Information about Legal Services

Rule 7.1- Communication Concerning a Lawyer's Services

Rule 7.2- Advertising

Rule 7.3- Direct Contact with Prospective Clients

Rule 7.4- Communication of Fields of Practice and Certification

Rule 7.5- Firm Names and Letterhead

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Section 8: Maintaining the Integrity of the Profession

Rule 8.1- Bar Admission and Disciplinary Matters

Rule 8.2- Judicial and Legal Officials

Rule 8.3- Reporting Professional Misconduct

Rule 8.4- Misconduct

Rule 8.5- Disciplinary Authority

Appendix B – Forms Prescribed by the Court

Form 1- Application for Admission to the Muscogee (Creek) Nation Bar

Form 2- Updated Contact/Information Sheet

Form 3- Licensed Legal Intern Application

Form 4 - Supervising Attorney Application

Form 5 - Grievance Form (For Attorney Professional Misconduct)

Form 6- Petition for Reinstatement or Early Readmission to the M(C)N Bar

Association

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RULES GOVERNING THE MUSCOGEE (CREEK) NATION BAR AND ATTORNEY

PROFESSIONAL CONDUCT

PURPOSE. The Rules Governing the Muscogee (Creek) Nation Bar and Attorney Professional

Conduct (hereinafter “Rules”) provide the procedural framework for admission and regulation of

membership in the Muscogee (Creek) Nation Bar (hereinafter “M(C)N Bar” or “Bar”). These Rules

also establish the process for investigation and resolution of grievances alleging professional

misconduct by a M(C)N Bar member or the unauthorized practice of law before Muscogee (Creek)

Nation courts.

CHAPTER 1 – ADMISSION

§ 1-1: Eligibility for Admission and Practice. Any attorney that is a member in good standing

of the bar of the highest court of any state of the United States or the District of Columbia is eligible to

apply for admission to the M(C)N Bar. Only members of the M(C)N Bar duly admitted pursuant to the

provisions of this chapter and in good standing pursuant to § 2-1, infra, or licensed legal interns admitted

pursuant to M(C)NCA Title 27, App. 1, Rule 4(d), and § 8, infra, may practice law before Muscogee

(Creek) Nation courts.

§ 1-2: Roll of Attorneys. The Muscogee (Creek) Nation Supreme Court Clerk shall maintain a

roll of all attorneys duly admitted to the Bar that reflects the current membership status of each attorney.

Subject to the requirements set forth in the succeeding rules, the Bar shall consist of those attorneys who

have completed the required admission process pursuant to this chapter.

§ 1-3: Assignment and Use of Bar Identification Number. Upon admission of an attorney to the

Bar, the Clerk of the Muscogee (Creek) Nation Supreme Court shall assign each new member an

individual Bar identification number.

In addition to any form requirements for filings under the

Muscogee (Creek) Nation Code Annotated, Bar members and licensed legal interns shall include their M(C)N

Bar identification number on any document filed in Muscogee (Creek) Nation courts.

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§ 1-4: Application for Admission. All applications for admission to the Bar shall be filed with

the Clerk of the Muscogee (Creek) Nation Supreme Court. Applications for admission to the Bar shall

be in writing, submitted on a form prescribed by the Supreme Court, and signed and dated by the

applicant. Applicants shall answer all questions on the application questionnaire truthfully, fully and

completely, without mental reservations of any kind. Failure to complete the application questionnaire

truthfully, fully and completely will result in denial of the application for admission.

§ 1-5: Documentation Required. At the time an application for admission to the Bar is filed,

applicants shall also provide:

(a) the completed Application for Admission to the Muscogee (Creek) Nation

Bar, including a signed and dated consent to jurisdiction on the form prescribed

by the Supreme Court; and

(b) an official, original certificate of good standing issued by the bar of the

highest court of any state of the United States or the District of Columbia dated

no more than ninety (90) calendar days prior to the date of application to the

M(C)N bar; and

M(C)N Bar Association (consisting of a one-time, non-refundable fifty-dollar

($50.00) application fee and a twenty-five dollar ($25.00) annual membership

fee refundable upon denial of the application for admission).

§ 1-6: Assessment and Review. The Clerk of the Supreme Court shall immediately refer

completed applications and all required documentation to the Justices of the Supreme Court for

assessment of the applicant's qualifications and fitness for admission. The Justices shall review each

application and authorize for admission any application receiving favorable review by a majority of the

Court duly formed. After completing the assessment, the Chief Justice shall inform the Clerk in writing

of the Court’s admission decision, and direct the Clerk to approve and process or deny the application.

Upon completion of Supreme Court review, the Clerk shall notify applicants of the Court’s decision

regarding admission within twenty-four (24) hours and, if applicable, schedule a date for administration

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of the oath of admission by a Muscogee (Creek) Nation judicial officer.

§ 1-7: Reapplication After Denial of Admission. Any applicant denied admission to the Bar by

the Supreme Court for failure to submit a completed application or for failure to submit an official,

original certificate of good standing shall be permitted thirty (30) days from the denial date to

supplement this information/documentation and have their application reconsidered, otherwise, any

applicant denied admission is prohibited from reapplying for two (2) calendar years from the date of

denial.

§ 1-8: Oath of Admission. After the Supreme Court authorizes an applicant to be admitted to the

Bar, each applicant must appear before a Muscogee (Creek) Nation judicial officer for administration

of the following oath of admission:

“I, (full name of applicant accepted for admission), do solemnly swear (or affirm) that I am

familiar with and will support the Constitution and laws of the Muscogee Nation. I willingly

consent to the jurisdiction of the Muscogee Nation and resolve to conduct myself uprightly

and according to Muscogee law as an officer, attorney and counselor of the Muscogee Nation

courts.”

An applicant shall have thirty (30) days following notification of a decision regarding admission to

schedule and complete the oath of admission. Following this thirty (30) day period, if the applicant has

failed to complete the oath of admission, said applicant’s application shall be deemed denied. In order

to complete the admission process and become eligible to practice law before Muscogee (Creek) Nation

courts, each applicant shall return to the Clerk the original certificate of oath signed and dated by both

the applicant and the administering judicial officer.

§ 1-9: Completion of Admission. Upon completion of admission an applicant will receive a

welcome letter from the Clerk, which shall include a receipt for the applicant’s membership and

application fees, the bar member’s annul Bar Card, and a copy of the Muscogee (Creek) Nation District

Court Rules. The Clerk will also order the bar member’s certificate of admission at this time, which

shall be mailed to the bar member upon receipt by the Clerk. The bar member’s business contact

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information will be added to the list of current bar members for use in all official correspondence from

the Muscogee (Creek) Nation courts and the Muscogee (Creek) Nation Bar Association and published

to Court’s website at this time.

§ 1-10: Bar Records. The Supreme Court Clerk shall establish and indefinitely maintain individual

files for each applicant denied admission and each attorney duly admitted to the Bar.

(a) Applicants denied admission: The individual file for any applicant denied admission

shall clearly reflect the date of denial and shall contain all documentation described at §1-4

through §1-6, supra, including proof of refund of the $25.00 membership fee (the original

$50.00 Application Fee is Non-Refundable).

(b) Duly admitted Bar members (including “active”, “suspended”, or “inactive-suspended”

classification): The individual file for any member ever duly admitted to the Bar shall clearly

reflect the member’s current classification under §2-2, infra; and shall contain all

documentation described at §1-4 through §1-6, supra; Chapter 2, infra; and any

documentation from the Bar Counsel for Professional Responsibility regarding member

reclassification pursuant to disciplinary proceedings under Chapters 4, 5, 6, and/or 7, infra.

§ 1-11: Certificate of Good Standing. An official certificate of good standing with the M(C)N

Bar shall be provided free of charge to any member of the M(C)N Bar Association, in good standing,

upon written request made to the Supreme Court Clerk.

CHAPTER 2 - MEMBERSHIP

§ 2-1: Membership In Good Standing. Any attorney duly admitted to the M(C)N Bar pursuant

to the admission process prescribed in Chapter 1, supra, shall be considered a member in good standing

until such time as the attorney either (1) fails to timely remit the annual membership renewal fee pursuant

to § 2-4, infra; and/or (2) is suspended by operation of law or as a disciplinary sanction under any

provision(s) in Chapters 4, 5, 6, and/or 7, infra. Bar members shall promptly inform the Supreme Court

Clerk of any changes to the member’s contact information or address of record provided on the

application for admission, any disciplinary proceedings filed against the member in other jurisdictions,

and/or any criminal charges filed against the member within twenty (20) days (See § 4-2, infra).

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§ 2-2: Member Classification. M(C)N Bar membership shall be divided into five separate

classifications:

(a) Active members: All duly admitted members in good standing pursuant to § 2-1, supra,

shall be classified as active members.

(b) Inactive members: Any active member shall be reclassified as “inactive” if that member

is subsequently (1) suspended by operation of law pursuant to § 2-4, infra, for non-payment

of membership renewal fees not exceeding one calendar year; (2) at the attorney’s written

request (i.e. for retirement, for a member no longer practicing in this jurisdiction, etc.), and/or

(3) upon death of the member.

member is subsequently (1) delinquent in membership renewal for a period greater than one

calendar year pursuant to § 2-5, infra, and/or (2) suspended for a finite period as a disciplinary

sanction under any provision(s) in Chapters 4, 5, 6, and/or 7, infra.

(d) Disbarred: Any active or suspended member shall be reclassified as “disbarred” and

stricken from the roll of attorneys if that member is subsequently (1) suspended indefinitely

or disbarred by the Supreme Court as a disciplinary sanction under any provision(s) in

Chapters 4, 5, 6, and/or 7, infra.

(e) Honorary Status: It was the past practice of the Muscogee (Creek) Nation Bar

Association and this Court to, on occasion, confer honorary membership status to select

individuals in recognition of works done on the Nation’s and/or Bar Association’s behalf.

Such a practice is no longer authorized by this Court. However, those individuals having

been conferred honorary membership prior to the adoption of these rules shall retain

honorary status in the Muscogee (Creek) Nation Bar Association.

§ 2-3: Annual Renewal Required for Active Membership In Good Standing. To remain an

active member in good standing, Bar members shall remit an annual membership renewal fee of twentyfive ($25.00) dollars payable by check or money order to the M(C)N Bar Association (attn.: the Supreme

Court Clerk) [P.O. Box 546, Okmulgee, OK 74447] no later than January 1 each calendar year (with a

grace period until January 31). Cash payments will only be accepted at the office of the Supreme Court.

The Supreme Court Clerk shall send an invoice for the membership renewal fee by both electronic and

regular U.S. mail to each member in good standing:

(a) on or about November 1 (via electronic mail) in the year preceding the renewal due date;

(b) on or about December 1 (via US Mail) in the year preceding the renewal due date; and

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change to “inactive member” status as of February 1.

It is the duty of each Bar member to notify the Supreme Court Clerk of any change to the member’s

address and/or contact information prior to the above-referenced yearly membership fee notifications.

An updated Bar Card shall be mailed to the member within seven (7) days of payment. Checks that are

returned for insufficient funds shall be returned to the member and the member will be required to

correct payment with the Clerk and pay any resulting banks fees incurred due to the returned check in

addition to the yearly membership fee.

§ 2-4: Delinquency of Renewal; Inactive by Operation of Law. Any member that fails to

timely remit membership renewal fees by January 31 each calendar year shall, by operation of law, be

placed on “inactive member” status for delinquency of membership renewal on February 1 of the same

calendar year. Members made inactive for delinquency of membership renewal are immediately

prohibited from practicing law before any Muscogee (Creek) Nation court. Any member made inactive

for delinquency of membership renewal may be reinstated to active membership and returned to goodstanding status by remitting to the M(C)N Bar Association (Attn: the Supreme Court Clerk) the annual

membership renewal fee of twenty-five ($25.00) dollars and a delinquency fee of twenty-five ($25.00)

dollars within one (1) calendar year of suspension. Additionally, the member shall be required to submit

a M(C)N Bar Association Updated Contact/Information Sheet (found on the Supreme Court’s website)

with their payment. Inactive members shall continue to incur yearly membership fees. The Supreme

Court Clerk shall send a statement/invoice to the inactive member notifying the member of his/her

membership renewal and delinquency fees and impending change to “Suspended member” status by

regular U.S. mail.

(a) on or about November 1 (via US Mail) in the year first suspended for delinquency

notifying of impending change to “suspended member” status.

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§ 2-5: Extended Delinquency; Suspended by Operation of Law. Any member made inactive

for delinquency of membership renewal that fails to remit the annual membership renewal fee and

delinquency fee in full within one (1) calendar year of January 1 in the year in which the member was

placed on “inactive member” status shall be changed to a “suspended member” status. Any attorney

suspended for extended delinquency of membership renewal shall be required to wait two (2) years from

the date the member’s account initially fell into delinquency and must re-apply for admission to the M(C)N

Bar Association pursuant to § 1-5, through § 1-10, including all fees required therein. Additionally, the

attorney shall be required to pay a twenty-five ($25.00) delinquency fee. Applications for readmission

to the Bar after suspension for extended delinquency shall be filed with the Supreme Court Clerk and

the applicant shall clearly disclose on the application that the applicant was previously stricken from the

roll of attorneys for extended delinquency of membership renewal.

CHAPTER 3 – ATTORNEY PROFESSIONAL RESPONSIBILITY

§ 3-1: Minimum Standard of Attorney Professional Conduct. Members of the Bar and licensed

legal interns shall adhere to these Rules, the Muscogee (Creek) Nation Rules of Professional Conduct

for Attorneys at Appendix A infra, the Muscogee (Creek) Nation Code and the local rules of the

Muscogee (Creek) Nation courts.

§ 3-2: Bar Counsel for Professional Responsibility (BCPR). The Muscogee (Creek) Nation

Supreme Court shall, by majority of the Court duly formed, employ and discharge the Bar Counsel for

Professional Responsibility (hereinafter “BCPR”). The BCPR shall have investigative authority and

reporting responsibilities as described herein.

§ 3-3: Sanctions. Any Bar member or licensed legal intern determined by the Muscogee (Creek)

Nation Supreme Court to have violated these Rules, or the rules incorporated herein, shall be subject to

sanctions which may include monetary fines, private or public reprimand, probation, finite or indefinite

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suspension, disbarment and/or such other disciplinary action as determined by the Muscogee (Creek)

Nation Supreme Court.

§ 3-4: Summary Discipline for Direct or Indirect Contempt. No provision herein shall be

interpreted to limit the inherent authority of individual justices or judges of the Muscogee (Creek)

Nation to exercise judicial authority over assigned legal proceedings or limit judicial officials’ inherent

authority to maintain control of the courtroom and to impose, at the individual justice’s or judge’s

discretion, sanctions, penalties or other restrictions for direct or indirect contemptuous conduct by any

attorney or non-attorney. The authority to disbar members of the Bar; however, exceeds the contempt

authority of a justice or judge acting individually.

CHAPTER 4 – DISCIPLINE, CONVICTION OR PLEA IN ANOTHER JURISDICTION

§ 4-1: Acts or Omissions; Name Stricken and Disbarment By Operation of Law. Any member

of the Bar shall, by operation of law, be immediately stricken from the roll of attorneys, prohibited from

practicing law before Muscogee (Creek) Nation courts, and disbarred indefinitely from M(C)N Bar

membership if the member:

(a) fails to notify the BCPR, in writing, within twenty (20) calendar

days of any disciplinary action for professional misconduct by the

highest court of a federally recognized Indian tribe, the highest court of

a state of the United States or the District of Columbia, or by any federal

court (see § 4-2, infra); or

(b) is suspended, disbarred or resigns from the practice of law pending

disciplinary proceedings in any court of competent jurisdiction; or

to a deferred or suspended sentence plea agreement in any court of

competent jurisdiction of a felony crime or any crime involving moral

turpitude, regardless of the pendency of an appeal; or

(d) is convicted or tenders a plea of guilty or nolo contendere pursuant

to a deferred or suspended sentence plea agreement in any court of

competent jurisdiction of a crime which demonstrates the member’s

unfitness to practice law, regardless of the pendency of an appeal.

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§ 4-2: Affirmative Duty to Report. Members of the Bar shall notify the Supreme Court Clerk, in

writing, within twenty (20) calendar days of any such discipline, suspension, disbarment, resignation,

conviction or plea agreement in a foreign jurisdiction as described supra at § 4-1. This notification may

be turned over to the BCPR for further investigation. Any member suspended indefinitely by operation

of law under this chapter may file a petition for reinstatement with the Supreme Court pursuant to § 62, infra.

CHAPTER 5 – GRIEVANCES REGARDING ALLEGED PROFESSIONAL MISCONDUCT

§ 5-1: Filing of Grievance for Alleged Professional Misconduct. Grievances regarding alleged

professional misconduct or requests for investigation of alleged unauthorized practice of law

(hereinafter “grievances”) shall be filed with the Supreme Court Clerk and shall not require a filing fee.

All filed grievances shall be assigned a unique grievance case number, stamped evidencing the date of

filing and a file shall be created and maintained by the Supreme Court Clerk for that cause of action.

True and correct copies of all newly filed grievance actions (and any subsequent pleading(s) filed in the

cause) shall be transmitted to the BCPR by the Supreme Court Clerk within three (3) business days of

the document’s filing.

§ 5-2: Form of Grievances. Grievances shall be submitted in writing, on the form prescribed by

the Supreme Court, as original sworn declarations under penalty of perjury. Grievances shall state with

particularity the circumstances out of which the grievance arose.

§ 5-3: Notice to Respondent. Upon receipt of a grievance, the BCPR shall provide notice and a

copy of the grievance to the Bar member or person subject to the grievance allegations (hereinafter

“respondent”).

§ 5-4: Grievances Privileged. Matters contained in grievances submitted to the BCPR and

statements, oral or written, with respect thereto, shall be privileged. Litigation or the threat of litigation

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by any respondent against a person submitting a grievance (hereinafter “grievant”) by reason of such

submission may be grounds in itself for discipline.

§ 5-5: Confidentiality of Grievance Investigations and Results. Investigations by the BCPR shall

be confidential with respect to all non-parties to the grievance, and the results thereof shall not be made

public unless directed by the Supreme Court or until a show-cause hearing is commenced under § 5-8,

infra. If the Supreme Court deems a show-cause hearing is unnecessary at the conclusion of the BCPR’s

report and recommendation, the final disposition of a grievance may be made public at the option of the

respondent. The BCPR shall, in all cases, notify the grievant and the respondent in writing of the final

disposition of the grievance.

§ 5-6: Preliminary Investigation. Upon receipt of a grievance regarding alleged attorney

professional misconduct, the BCPR shall make such preliminary investigation as the BCPR deems

appropriate. After preliminary investigation, the BCPR shall either:

(a) notify the grievant and the respondent in writing that the allegations are inadequate,

incomplete or insufficient to warrant further investigation, provided that such an action be

reported to the Supreme Court at its next meeting; or

(b) file and serve a copy of the grievance upon the respondent, who shall thereafter make a

written response within twenty (20) calendar days (to be filed with the Supreme Court Clerk)

which contains a full and fair disclosure of all the facts and circumstances pertaining to the

respondent’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 by the Supreme Court. Failure by the respondent to answer within

twenty (20) calendar days after service of the grievance, or such further time as may be

granted by the BCPR, shall be grounds for discipline by the Supreme Court. The BCPR shall

make such further investigation of the grievance and response as the BCPR may deem

appropriate before making a report and recommendation to the Supreme Court.

Should the BCPR direct either the grievant or the respondent to submit additional information and/or

documentation, the BCPR shall advise the requested party at what address or other point of contact said

party should submit the requested information and/or documentation.

§ 5-7: Report and Recommendation. Upon completion of the preliminary investigation, the

BCPR shall make a report and recommendation to the Supreme Court on each grievance. The BCPR

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shall, at this time, also turn over to the Court all original documentation, including communications

between the BCPR and the parties and/or communications between the BCPR and other individuals

involved in the BCPR’s investigation, for inclusion in the Court’s file. After receiving the BCPR’s report

and recommendation, the Supreme Court shall:

(a) direct the BCPR to conduct additional investigation; or

(b) direct the BCPR to advise the grievant and respondent in writing that the factual

circumstances do not warrant further investigation or disciplinary action; or

BCPR; or

(d) direct that, conditioned upon the respondent’s acceptance of a private reprimand

before the Supreme Court, no show-cause hearing be ordered, and in such event, the

respondent shall be notified to appear before the Supreme Court 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 Supreme Court may

give further consideration to the advisability of ordering a show-cause hearing; and/or

(e) enter an order for respondent to appear and show cause why disciplinary action

should not be imposed; and/or

(f) direct the BCPR to refer the grievance to or otherwise notify the proper foreign

court of competent jurisdiction or regulatory authority; or

(g) in matters involving the unauthorized practice of law, either dismiss the grievance

or direct the BCPR to transfer the matter to the Muscogee (Creek) Nation Attorney

General for further investigation and possible felony prosecution under Muscogee

(Creek) Nation Code Annotated, Title 14, § 2-824.A.

§ 5-8: Show-Cause Hearing. If the Supreme Court determines that a show-cause hearing is

necessary based on the BCPR’s report and recommendation, the Court shall issue an order for

respondent to show cause why disciplinary action should not be imposed. The order shall recite the

nature of the complaint against the respondent and shall provide the respondent with no less than

fourteen (14) calendar days advance notice of the date and time set for the show-cause hearing on the

allegations raised in the grievance. The respondent may, however, waive the right to a hearing at any

time. During the hearing, the respondent shall be afforded an opportunity to appear in person, to present

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oral and documentary evidence, to compel the attendance of witnesses or the production of documents,

to cross-examine witnesses, and to present argument orally or in writing. The show-cause hearing shall

be on the record. If not called by the respondent, it is within the discretion of the Supreme Court to call

the grievant to appear at the hearing. The burden shall be on the respondent to prove, based on a

preponderance of the evidence, that the respondent did not engage in the alleged professional

misconduct. At the conclusion of the show-cause hearing, the Supreme Court shall deliberate and shall

issue an Order within seven (7) days imposing disciplinary and/or corrective action(s) if a majority of

the Court duly formed determines, based on a preponderance of the evidence that the respondent

engaged in the professional misconduct alleged. The Supreme Court is the final authority on disciplinary

matters and its disciplinary orders are not subject to appeal.

CHAPTER 6 – REINSTATEMENT/APPLICATION FOR READMISSION

§ 6-1: Petition for Reinstatement After Disbarment Under Chapter 5. Any attorney disbarred

by the Supreme Court pursuant to disciplinary proceedings for professional misconduct under Chapter

5, supra, is prohibited from filing a petition for reinstatement until such time as the attorney sufficiently

demonstrates that any and all corrective actions imposed by the Supreme Court at the time of suspension

(if any) have been satisfied. Petitions for reinstatement under this section shall filed with the Supreme

Court Clerk on the form prescribed by the Court. Review and disposition of petitions for reinstatement

under this section shall be at the sole discretion of the Supreme Court.

§ 6-2: Petition for Reinstatement After Disbarment Under Chapter 4. Any attorney disbarred

by operation of law under Chapter 4, supra, may file a petition for reinstatement with the Supreme Court

upon reinstatement by the foreign court of competent jurisdiction in which the attorney resigned, pled,

or was disciplined, suspended, disbarred or convicted. Petitions for reinstatement under this section shall

be filed with the Supreme Court Clerk on the form prescribed by the Court and include as an attachment

a certified copy of the order of reinstatement from the foreign court of competent jurisdiction. Review

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and disposition of petitions for reinstatement under this section shall be at the sole discretion of the

Supreme Court.

§ 6-3: Application for Early Readmission After Suspension Under § 2-2(c)(2). Any attorney

suspended from the M(C)N Bar as described under Chapter § 2-2(c)(2), supra, may file a petition for

early reinstatement with the Supreme Court. Petitions for early reinstatement under this section shall be

filed with the Supreme Court Clerk on the form prescribed by the Court and include as an attachment

any documentation justifying early reinstatement. Review and disposition of petitions for reinstatement

under this section shall be at the sole discretion of the Supreme Court.

CHAPTER 7 – UNAUTHORIZED PRACTICE OF LAW

§ 7-1: By an Attorney. Any attorney found to have engaged in the practice of law before Muscogee

(Creek) Nation courts without first being duly admitted to the Bar, or member of the Bar who, while

classified as “inactive,” “suspended” or “disbarred” pursuant to § 2-2, supra, practiced law before

Muscogee (Creek) Nation courts, shall be held in contempt and subject to sanction by the Supreme

Court.

§ 7-2: By a Non-Attorney. Upon receipt of a request for investigation regarding unauthorized

practice of law by a non-attorney, the BCPR shall conduct a preliminary investigation and provide a

report and recommendation to the Supreme Court pursuant to § 5-6 and § 5-7, supra. The Supreme

Court shall subsequently either direct the BCPR to dismiss the matter or direct the BCPR to transfer the

matter to the Muscogee (Creek) Nation Attorney General for further investigation and possible felony

prosecution under Muscogee (Creek) Nation Code Annotated, Title 14, § 2-824.A.

§ 7-3: Inapplicable to Duly Seated, Non-Attorney Supreme Court Justices. Any non-attorney

duly nominated and confirmed to serve as a Supreme Court justice in accordance with Muscogee

(Creek) Nation Constitution Article VII, § 2, shall retain the judicial authority expressly or inherently

granted to justices under Muscogee (Creek) Nation law and shall not be subject to grievance allegations

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of engaging in the unauthorized practice of law for the exercise of such judicial authority.

CHAPTER 8 – LICENSED LEGAL INTERNS

§ 8-1: Procedure to Obtain License. Pursuant to M(C)NCA Title 27, App. 1, Rule 4(D), any

legal intern may obtain a limited license to practice law as a licensed legal intern in the Muscogee

(Creek) Nation District Court. Pursuant to the above-styled administrative order any legal intern

wishing to obtain a limited license to practice law in the Muscogee (Creek) Nation District Court may

do so by completing the following procedures:

(a) Submit to the Supreme Court Clerk a completed Licensed Legal Intern

Application in the form prescribed by the Court.

(b) Have his or her law school furnish to the Supreme Court Clerk a certification

that the legal intern (1) is enrolled at the law school, (2) has completed

sufficient academic hours to comply with eligibility requirements with the

school and that the legal intern does have a graduating grade point average.

The law school shall also provide (3) a letter from the dean stating that in

the opinion of the dean the legal intern is aware of the professional

responsibilities and obligations connected with a limited license and that in

the dean’s opinion the applicant is capable of properly handling the

responsibilities and obligations which will be placed upon the legal intern

through the use of the limited license. If the applicant is a recent law

graduate, within twelve (12) months of his/her graduation date, the applicant

must attach to their application a certificate that the legal intern has

graduated from law school.

Application in the form prescribed by the Court.

(d) Pay the application fee of seventy-five dollars ($75.00) ($50.00 nonrefundable application fee and $25.00 annual membership fee).

§ 8-2: Assessment and Review. The Clerk of the Supreme Court shall immediately refer

completed applications and all required documentation to the Justices of the Supreme Court for

assessment of the applicant's qualifications and fitness for admission. The Justices shall review each

application and authorize for admission any application receiving favorable review by a majority of the

Court duly formed. After completing the assessment, the Chief Justice shall inform the Clerk in writing

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of the Court’s admission decision, and direct the Clerk to approve and process or deny the application.

Upon completion of Supreme Court review, the Clerk shall notify applicants of the Court’s decision

regarding admission within twenty-four (24) hours and, if applicable, schedule a date for administration

of the oath of admission by a Muscogee (Creek) Nation judicial officer.

§ 8-3: Oath of Licensed Legal Intern. Upon approval of a legal intern’s application for limited

license to practice law, the applicant will be informed by the Supreme Court Clerk of said approval

and shall have thirty (30) days to complete the oath for Licensed Legal Interns and return the oath

signed by both the applicant and administrating judicial officer.

§ 8-4: Supervising Attorneys. To be eligible to act as a supervising attorney for a licensed legal

intern, an attorney must meet the following requirements:

(a) Be an active member of the Muscogee (Creek) Nation Bar Association.

(b) Be actively engaged in the practice of law at least five (5) years. If the

supervising attorney is a staff member of a recognized legal aid program,

public defender program, district attorney office, municipal attorney office,

the Attorney General of the Muscogee (Creek) Nation, that attorney must

have been actively engaged in the practice of law for at least one (1) year. If

the supervising attorney is part of an approved law school internship

program, no minimum length of practice is required to become a supervising

attorney.

(d) Initially submit an affidavit to the Supreme Court Clerk acknowledging the

responsibilities of a supervising attorney, namely to:

1. Provide every opportunity for the licensed legal intern to participate

or observe courtroom experience.

2. Supervise and counsel the licensed legal intern on all legal matters

assigned to the licensed legal intern, to insure proper preparation and

quality representation by the licensed legal intern.

3. Advise the client of the status of the licensed legal intern and the

nature of the limited license prior to obtaining the written consent of

the client to the licensed legal intern’s representation.

4. Assume personal professional responsibility for the legal work

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performed by the licensed legal intern under his or her supervision.

5. Read and understand these rules governing licensed legal interns and

specifically discuss with the licensed legal intern the limitations

placed on the limited license by these rules and M(C)NCA Title 27,

App. 1, Rule 4(D).

6. Provide practical training in trial advocacy and professional ethics to

the licensed legal intern.

7. Cooperate with the licensed legal intern’s law school on any

reporting or evaluation requirements of any internship practice

program.

§ 8-5: Signing of Pleadings. All pleadings must be signed by both the supervising attorney and

the licensed legal intern.

§ 8-6: Limitations on Licensed Legal Interns. Representation by licensed legal interns shall be

limited in the following manner:

(a) In criminal matters:

1. An approved supervising attorney must be present at a jury trial in

either a felony or misdemeanor case.

2. An approved supervising attorney must be present at a non-jury trial

in either a felony or misdemeanor case.

(b) In civil matters:

1. A licensed legal intern may appear without an approved supervising

attorney being present only in the following situations:

Waiver, default, or uncontested divorces.

ii.

Friendly suits including settlements of tort claims.

iii.

To make an announcement on behalf of a supervising

attorney.

iv.

Civil motion dockets, provided that a licensed legal intern

may prosecute but not defend motions and/or pleadings that

may or could be the ultimate or final disposition of the cause

of action.

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Prosecute or defend contested motions to modify child

support orders or decrees except when a change of custody

of minor children is involved.

vi.

Depositions.

2. In all other civil legal matters, including but not limited to contested

divorces and adoption proceedings and ex-parte matters, such as

temporary orders in divorce cases, restraining orders, temporary

injunctions, etc., the licensed legal intern shall only appear when

accompanied by and under the supervision of an approved

supervising attorney.

licensed legal intern to practice law before the Muscogee (Creek) Nation

Supreme Court.

§ 8-7: Termination of the Limited License. The limited license granted a licensed legal intern

shall terminate automatically when:

(a) A licensed legal intern’s cumulative grade point average falls below a

graduating grade point average for his or her particular law school.

(b) A licensed legal intern no longer is working for an approved supervising

attorney.

licensed legal intern graduated from law school and is administered an oath

as a practicing attorney in this or any other jurisdiction.

(d) For any reason a licensed legal intern is no longer enrolled in law school. A

licensed legal intern need not be enrolled for summer sessions or vacation

periods.

(e) The licensed legal intern does not pass or fails to take a bar examination in

any state in the United States or the District of Columbia within twelve (12)

months immediately subsequent to the licensed legal intern’s graduation

from law school.

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APPENDIX A – MUSCOGEE (CREEK) NATION RULES OF PROFESSIONAL

CONDUCT FOR ATTORNEYS

* Appendix A contains an adaptation of the Model Rules of Professional Conduct originally adopted by the House of Delegates of the American Bar

Association on August 2, 1983 (with amendments through August 12, 2002). On November 13, 2007, the Supreme Court of the Muscogee (Creek) Nation

issued its Order, In re: Adoption of the American Bar Association Model Rules of Professional Conduct, opting at that time not to officially adopt the

comments to the Model Rules. The adapted Model Rules contained below incorporate adapted comments for each Model Rule. These adapted comments

are intended as guides to interpretation, but the text of each Rule is authoritative. The Model Rules and comments adopted by the Supreme Court may be

amended from time to time by this Court upon its own motion or upon consideration of a duly made recommendation of the Muscogee (Creek) Nation Bar

Association.

PREAMBLE. A Lawyer’s Responsibilities

SCOPE

Rule 1.0 – Terminology

SECTION 1: CLIENT-LAWYER RELATIONSHIP

Rule 1.1 – Competence

Rule 1.2 – Scope of Representation and Allocation of Authority Between Client and Lawyer

Rule 1.3 – Diligence

Rule 1.4 – Communication

Rule 1.5 – Fees

Rule 1.6 – Confidentiality of Information

Rule 1.7 – Conflict of Interest: Current Clients

Rule 1.8 – Conflict of Interest: Current Clients: Specific Rules

Rule 1.9 – Conflict of Interest: Duties to Former Clients

Rule 1.10 – Imputation of Conflicts of Interest: General Rule

Rule 1.11 – Special Conflicts of Interest for Former and Current Government Officers and

Employees

Rule 1.12 – Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

Rule 1.13 – Organization as Client

Rule 1.14 – Client with Diminished Capacity

Rule 1.15 – Safekeeping Property

Rule 1.16 – Declining or Terminating Representation

Rule 1.17 – Sale of Law Practice

Rule 1.18 – Duties to Prospective Client

SECTION 2: COUNSELOR

Rule 2.1 – Advisor

Rule 2.2 – Evaluation for Use by Third Persons

Rule 2.3 – Lawyer Serving as Third-Party Neutral

SECTION 3: ADVOCATE

Rule 3.1 – Meritorious Claims and Contentions

Rule 3.2 – Expediting Litigation

Rule 3.3 – Candor Toward the Tribunal

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Rule 3.4 – Fairness to Opposing Party and Counsel

Rule 3.5 – Impartiality and Decorum of the Tribunal

Rule 3.6 – Trial Publicity

Rule 3.7 – Lawyer as Witness

Rule 3.8 – Special Responsibility of a Prosecutor

Rule 3.9 – Advocate in Nonadjudicative Proceedings

SECTION 4: TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

Rule 4.1 – Truthfulness in Statements to Others

Rule 4.2 – Communication with Person Represented by Counsel

Rule 4.3 – Dealing with Unrepresented Person

Rule 4.4 – Respect for Rights of Third Persons

SECTION 5: LAW FIRMS AND ASSOCIATIONS

Rule 5.1 – Responsibilities of Partners, Managers and Supervisory Lawyers

Rule 5.2 – Responsibilities of a Subordinate Lawyer

Rule 5.3 – Responsibilities Regarding Nonlawyer Assistants

Rule 5.4 – Professional Independence of a Lawyer

Rule 5.5 – Unauthorized Practice of Law; Multijurisdictional Practice of Law

Rule 5.6 – Restrictions on Right to Practice

Rule 5.7 – Responsibilities Regarding Law-Related Services

SECTION 6: PUBLIC SERVICE

Rule 6.1 – Pro Bono Public Service

Rule 6.2 – Accepting Appointments

Rule 6.3 – Membership in Legal Services Organization

Rule 6.4 – Law Reform Activities Affecting Client Interests

Rule 6.5 – Nonprofit and Court-Annexed Limited Legal Services Programs

SECTION 7: INFORMATION ABOUT LEGAL SERVICES

Rule 7.1 – Communications Concerning a Lawyer’s Services

Rule 7.2 – Advertising

Rule 7.3 – Solicitation of Clients

Rule 7.4 – Communication of Fields of Practice and Certification

Rule 7.5 – Firm Name and Letterheads

SECTION 8: MAINTAINING THE INTEGRITY OF THE PROFESSION

Rule 8.1 – Bar Admission and Disciplinary Matters

Rule 8.2 – Judicial and Legal Officials

Rule 8.3 – Reporting Professional Misconduct

Rule 8.4 – Misconduct

Rule 8.5 – Disciplinary Authority; Choice of Law

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PREAMBLE: A LAWYER’S RESPONSIBILITIES

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

system and a public citizen having special responsibility for the quality of justice.

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

client with an informed understanding of the client's legal rights and obligations and explains their

practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the

adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with

requirements of honest dealings 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.

[3] 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. See, e.g., Rules 1.12 and 2.4.

In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing

lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits

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

fraud, deceit or misrepresentation. See Rule 8.4.

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

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

confidence information relating to representation of a client except so far as disclosure is required or

permitted by the Rules of Professional Conduct or other law.

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

clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only

for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for

the legal system and for those who serve it, including judges, other lawyers and public officials. While

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

duty to uphold legal process.

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

administration of justice and the quality of service rendered by the legal profession. As a member of a

learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ

that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should

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

legal institutions in a constitutional democracy depend on popular participation and support to maintain

their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the

fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.

Therefore, all lawyers should devote professional time and resources and use civic influence to ensure

equal access to our system of justice for all those who because of economic or social barriers cannot

afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these

objectives and should help the bar regulate itself in the public interest.

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

as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and

the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to

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

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

citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a

zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a

lawyer can be sure that preserving client confidences ordinarily serves the public interest because people

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

communications will be private.

[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all

difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal

system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living.

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

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

issues must be resolved through the exercise of sensitive professional and moral judgment guided by

the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to

protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a

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

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

powers of self-government, the legal profession is unique in this respect because of the close relationship

between the profession and the processes of government and law enforcement. This connection is

manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

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

government regulation is obviated. Self-regulation also helps maintain the legal profession's

independence from government domination. An independent legal profession is an important force in

preserving government under law, for abuse of legal authority is more readily challenged by a profession

whose members are not dependent on government for the right to practice.

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

The profession has a responsibility to assure that its regulations are conceived in the public interest and

not in furtherance of parochial or 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.

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

understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct,

when properly applied, serve to define that relationship.

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SCOPE

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

to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in

the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline.

Others, generally cast in the term "may," are permissive and define areas under the Rules in which the

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

the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature

of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary

and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the

Comments use the term "should." Comments do not add obligations to the Rules but provide guidance

for practicing in compliance with the Rules.

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

rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and

substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their

responsibilities under such other law.

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

understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion

and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not,

however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile

human activity can be completely defined by legal rules. The Rules simply provide a framework for the

ethical practice of law.

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

substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of

the duties flowing from the client-lawyer relationship attach only after the client has requested the

lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as

that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a clientlawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for

any specific purpose can depend on the circumstances and may be a question of fact.

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

responsibilities of government lawyers may include authority concerning legal matters that ordinarily

reposes in the client in private client-lawyer relationships. For example, a lawyer for a government

agency may have authority on behalf of the government to decide upon settlement or whether to appeal

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

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

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

to represent several government agencies in intragovernmental legal controversies in circumstances

where a private lawyer could not represent multiple private clients. These Rules do not abrogate any

such authority.

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

disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be

made on the basis of the facts and circumstances as they existed at the time of the conduct in question

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

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

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violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and

seriousness of the violation, extenuating factors and whether there have been previous violations.

[20] Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it

create any presumption in such a case that a legal duty has been breached. In addition, violation of a

Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer

in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure

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

liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing

parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for

sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an

antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.

Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a

Rule may be evidence of breach of the applicable standard of conduct.

[21] The Comment accompanying each Rule explains and illustrates the meaning and purpose of the

Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as

guides to interpretation, but the text of each Rule is authoritative.

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RULE 1.0 – TERMINOLOGY

(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be

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

(b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes

informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to

the person confirming an oral informed consent. See paragraph (e) 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.

proprietorship or other association authorized to practice law; or lawyers employed in a legal services

organization or the legal department of a corporation or other organization.

(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law

of the applicable jurisdiction and has a purpose to deceive.

(e) "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.

(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's

knowledge may be inferred from circumstances.

(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional

corporation, or a member of an association authorized to practice law.

(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of

a reasonably prudent and competent lawyer.

(i) "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.

(j) "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.

(k) "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.

(l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and

weighty importance.

(m) "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.

(n) "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

electronic communications. A "signed" writing includes an electronic sound, symbol or process attached

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

writing.

Comment:

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the

lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained a client's informed consent,

the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.

Firm

[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific facts. For example, two

practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as

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

themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between

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

information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose

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

should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information

acquired by one lawyer is attributed to another.

[3] With respect to the law department of an organization, including the government, there is ordinarily no question that the

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

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

corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the

department are directly employed. A similar question can arise concerning an unincorporated association and its local

affiliates.

[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon

the structure of the organization, the entire organization or different components of it may constitute a firm or firms for

purposes of these Rules.

Fraud

[5] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the

substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely

negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is

not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

Informed Consent

[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person

(e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or

pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent

will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer

must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an

informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances

giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material

advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options

and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the

advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client

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

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

explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in

legal matters generally and in making decisions of the type involved, and whether the client or other person is independently

represented by other counsel in giving the consent. Normally, such persons need less information and explanation than

others, and generally a client or other person who is independently represented by other counsel in giving the consent should

be assumed to have given informed consent.

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[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a

lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct

of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a

person's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in

writing," see paragraphs (n) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client.

See, e.g., Rules 1.8(a) and (g). For a definition of "signed," see paragraph (n).

Screened

[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove

imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.

[9] The purpose of screening is to assure the affected parties that confidential information known by the personally

disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to

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

are working on the matter should be informed that the screening is in place and that they may not communicate with the

personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular

matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the

screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer

to avoid any communication with other firm personnel and any contact with any firm files or other information, including

information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding

any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or

other information, including information in electronic form, relating to the matter and periodic reminders of the screen to the

screened lawyer and all other firm personnel.

[10] In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows

or reasonably should know that there is a need for screening.

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RULE 1.1 – COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation requires the legal

knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Comment:

Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include

the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and

experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible

to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many

instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in

some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which

the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some

important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal

problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may

involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate

representation in a wholly novel field through necessary study. Competent representation can also be provided through the

association of a lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily

required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency,

however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under

emergency conditions can jeopardize the client's interest.

[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation.

This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the

problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate

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

transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement

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

responsible. See Rule 1.2(c).

Retaining or Contracting With Other Lawyers

[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision

of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe

that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2

(allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized

practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm

will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature

of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical

environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

[7] When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers

ordinarily should consult with each other and the client about the scope of their respective representations and the allocation

of responsibility among them. See Rule 1.2. When making allocations of responsibility in a matter pending before a tribunal,

lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

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Maintaining Competence

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice,

including the benefits and risks associated with relevant technology, engage in continuing study and education and comply

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

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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's representation of a client, including representation by appointment, does not constitute

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

circumstances and the client gives informed consent.

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

criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of

conduct with a client and may counsel or assist a client to make a good faith effort to determine the

validity, scope, meaning or application of the law.

Comments:

Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation,

within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as

whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate

with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer

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

the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives.

Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish

their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the

client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.

Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question

may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be

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

with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer

has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4).

Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without

further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an

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

[4] In a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions

is to be guided by reference to Rule 1.14.

Independence from Client's Views or Activities

[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is

controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of

the client's views or activities.

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Agreements Limiting Scope of Representation

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under

which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an

insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation

may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which

representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives.

Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be

reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the

law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may

agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be

reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for

a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a

factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for

the representation. See Rule 1.1.

[8] All agreements concerning a lawyer's representation of a client must accord with the Rules of Professional Conduct and

other law. See, e.g., Rules 1.1, 1.8 and 5.6.

Criminal, Fraudulent and Prohibited Transactions

[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This

prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear

likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or

fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis

of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with

impunity.

[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate.

The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows

are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in

conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must,

therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone

might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion,

document, affirmation or the like. See Rule 4.1.

[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.

[12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not

participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Paragraph (d) does not preclude

undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of

paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of

action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.

[13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of

Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult

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

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RULE 1.3 – DILIGENCE

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

Comments

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the

lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must

also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A

lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may

have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule

1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating

of all persons involved in the legal process with courtesy and respect.

[2] A lawyer's work load must be controlled so that each matter can be handled competently.

[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be

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

statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in

substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's

trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to

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

[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters

undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter

has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may

assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt

about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the

client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For

example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the

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

about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is

obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide

to the client. See Rule 1.2.

[5] To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may

require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent

lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for

immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary

Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a

plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer).

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RULE 1.4 – COMMUNICATION

(a) A lawyer shall:

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

client's informed consent, as defined in Rule 1.0(e), 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.

Comment:

[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the

representation.

Communicating with Client

[2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires

that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the

client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing

counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the

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

authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

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

client's objectives. In some situations — depending on both the importance of the action under consideration and the

feasibility of consulting with the client — this duty will require consultation prior to taking action. In other circumstances,

such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act

without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer

has taken on the client's behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed

about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

[4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request

information concerning the representation. When a client makes a reasonable request for information, however, paragraph

(a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of

the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer

should promptly respond to or acknowledge client communications.

Explaining Matters

[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the

representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy

of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to

explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding

to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should

consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a

lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the

lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests,

and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer

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asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined

in Rule 1.0(e).

[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult.

However, fully informing the client according to this standard may be impracticable, for example, where the client is a child

or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or

inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address

communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved,

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

Withholding Information

[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be

likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client

when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to

serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders

governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs

compliance with such rules or orders.

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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.

(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.

matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement

shall be in a writing signed by the client and shall state the method by which the fee is to be determined,

including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial

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

are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the

client of any expenses for which the client will be 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 its determination.

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

1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the

securing of a divorce or 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, including the share each lawyer will receive, and the

agreement is confirmed in writing; and

3) the total fee is reasonable.

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Comment:

Reasonableness of Fee and Expenses

[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1)

through (8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for

which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed

in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable

amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the

lawyer.

Basis or Rate of Fee

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

basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however,

an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at

least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal

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

for any costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the

engagement reduces the possibility of misunderstanding.

[3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In

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

fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on

contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis

for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations

regarding fees in certain tax matters.

Terms of Payment

[4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A

lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not

involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8 (i).

However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often

have the essential qualities of a business transaction with the client.

[5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or

perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby

services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be

required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further

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

client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful

procedures.

Prohibited Contingent Fees

[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent

upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision

does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment

balances due under support, alimony or other financial orders because such contracts do not implicate the same policy

concerns.

Division of Fee

[7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A

division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as

well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist.

Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer

assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement, including the

share that each lawyer is to receive, and the agreement must be confirmed in writing. Contingent fee agreements must be in

a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the

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

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partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to

handle the matter. See Rule 1.1.

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were

previously associated in a law firm.

Disputes over Fees

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

by the bar, the lawyer must comply with the procedure when it is mandatory, and, even when it is voluntary, the lawyer

should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example,

in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of

damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply

with the prescribed procedure.

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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 the representation of a client to the extent the lawyer

reasonably believes necessary:

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

2) to prevent the client from committing a crime or fraud that is reasonably certain to result in

substantial injury to the financial interests or property of another and in furtherance of which the

client has used or is using the lawyer's services;

3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another

that is reasonably certain to result or has resulted from the client's commission of a crime or

fraud in furtherance of which the client has used the lawyer's services;

4) to secure legal advice about the lawyer's compliance with these Rules;

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;

6) to comply with other law or a court order; or

7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or

from changes in the composition or ownership of a firm, but only if the revealed information

would not compromise the attorney-client privilege or otherwise prejudice the client.

unauthorized access to, information relating to the representation of a client.

Comment:

[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's

representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the lawyer by a

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

of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such information to the

disadvantage of clients and former clients.

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

lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent.

This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek

legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject

matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain

from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in

the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all

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

[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the

work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and

work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise

required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than

those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies

not only to matters communicated in confidence by the client but also to all information relating to the representation,

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whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional

Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition

also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to

the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the

representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity

of the client or the situation involved.

Authorized Disclosure

[5] Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly

authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for

example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that

facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose to each

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

specified lawyers.

Disclosure Adverse to Client

[6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of

information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph

(b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent

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

or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action

necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a

town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who

drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate

the threat or reduce the number of victims.

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

extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud,

as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or property interests of

another and in furtherance of which the client has used or is using the lawyer’s services. Such a serious abuse of the clientlawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by

refraining from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to reveal the client’s

misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule

1.2(d). See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client

in such circumstances, and Rule 1.13(c), which permits the lawyer, where the client is an organization, to reveal information

relating to the representation in limited circumstances.

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client’s crime or fraud until after it has

been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful

conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In

such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the

affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3) does

not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that

offense.

[9] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's

personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be

impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized,

paragraph (b)(4) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional

Conduct.

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of

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

necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former

client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly

committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have

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been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such

complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or

proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who

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

[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This

aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment

of the fiduciary.

[12] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a

question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be

required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the

other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are

necessary to comply with the law.

Detection of Conflicts of Interest

[13] Paragraph (b)(7) recognizes that lawyers in different firms may need to disclose limited information to each other to

detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm, two or more

firms are considering a merger, or a lawyer is considering the purchase of a law practice. See Rule 1.17, Comment [7]. Under

these circumstances, lawyers and law firms are permitted to disclose limited information, but only once substantive

discussions regarding the new relationship have occurred. Any such disclosure should ordinarily include no more than the

identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information

about whether the matter has terminated. Even this limited information, however, should be disclosed only to the extent

reasonably necessary to detect and resolve conflicts of interest that might arise from the possible new relationship. Moreover,

the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice

the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced;

that a person has consulted a lawyer about the possibility of divorce before the person's intentions are known to the person's

spouse; or that a person has consulted a lawyer about a criminal investigation that has not led to a public charge). Under

those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer’s

fiduciary duty to the lawyer’s firm may also govern a lawyer’s conduct when exploring an association with another firm and

is beyond the scope of these Rules.

[14] Any information disclosed pursuant to paragraph (b)(7) may be used or further disclosed only to the extent necessary

to detect and resolve conflicts of interest. Paragraph (b)(7) does not restrict the use of information acquired by means

independent of any disclosure pursuant to paragraph (b)(7). Paragraph (b)(7) also does not affect the disclosure of

information within a law firm when the disclosure is otherwise authorized, see Comment [5], such as when a lawyer in a

firm discloses information to another lawyer in the same firm to detect and resolve conflicts of interest that could arise in

connection with undertaking a new representation.

[15] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal

or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the

client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized

by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable

law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent

required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court's order.

[16] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to

accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take

suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client's interest should be no greater

than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with

a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other

persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to

the fullest extent practicable.

[17] Paragraph (b) permits but does not require the disclosure of information relating to a client's representation to

accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In exercising the discretion conferred by this Rule,

the lawyer may consider such factors as the nature of the lawyer's relationship with the client and with those who might be

injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question.

A lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required,

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however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See

Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether

such disclosure is permitted by this Rule. See Rule 3.3(c).

Acting Competently to Preserve Confidentiality

[18] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client

against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons

who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1

and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the

representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent

the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are

not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the

cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards

adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively

difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may

give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be

required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and

federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to,

electronic information, is beyond the scope of these Rules. For a lawyer’s duties when sharing information with nonlawyers

outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].

[19] When transmitting a communication that includes information relating to the representation of a client, the lawyer

must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty,

however, does not require that the lawyer use special security measures if the method of communication affords a reasonable

expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in

determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and

the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may

require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use

of a means of communication that would otherwise be prohibited by this Rule. Whether a lawyer may be required to take

additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the

scope of these Rules.

Former Client

[20] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule

1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

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RULE 1.7 – CONFLICT OF INTEREST: CURRENT CLIENT

(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;

3) the representation does not involve the assertion of a claim by one client against another client

represented by the lawyer in the same litigation or other proceeding before a tribunal; and

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

Comment:

General Principles

[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of

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

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

of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions of "informed

consent" and "confirmed in writing," see Rule 1.0(e) and (b).

[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients;

2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the

existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph

(a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the

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

paragraph (a)(2).

[3] A conflict of interest may exist before representation is undertaken, in which event the representation must be declined,

unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a

conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice,

to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1.

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

client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.

[4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation,

unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. Where

more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the

lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent adequately the

remaining client or clients, given the lawyer's duties to the former client. See Rule 1.9. See also Comments [5] and [29].

[5] Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or

realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the

lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on

the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict.

The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. See Rule 1.16. The

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lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. See Rule

1.9(c).

Identifying Conflicts of Interest: Directly Adverse

[6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed

consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in

some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse

is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to

represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably

may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the

representation may be materially limited by the lawyer's interest in retaining the current client. Similarly, a directly adverse

conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another

client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous

representation in unrelated matters of clients whose interests are only economically adverse, such as representation of

competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not

require consent of the respective clients.

[7] Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller

of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated

matter, the lawyer could not undertake the representation without the informed consent of each client.

Identifying Conflicts of Interest: Material Limitation

[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability

to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the

lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a

joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that

each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would

otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent.

The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially

interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that

reasonably should be pursued on behalf of the client.

Lawyer's Responsibilities to Former Clients and Other Third Persons

[9] In addition to conflicts with other current clients, a lawyer's duties of loyalty and independence may be materially limited

by responsibilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary

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

Personal Interest Conflicts

[10] The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example,

if the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer

to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent

of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's

representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for

example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for

specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also

Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm).

[11] When lawyers representing different clients in the same matter or in substantially related matters are closely related by

blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family

relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to

know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the

representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent

a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The

disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with

whom the lawyers are associated. See Rule 1.10.

[12] A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual relationship predates the

formation of the client-lawyer relationship. See Rule 1.8(j).

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Interest of Person Paying for a Lawyer's Service

[13] A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and

consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See

Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer's representation of

the client will be materially limited by the lawyer's own interest in accommodating the person paying the lawyer's fee or by

the lawyer's responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of

paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that

the client has adequate information about the material risks of the representation.

Prohibited Representations

[14] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b),

some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide

representation on the basis of the client's consent. When the lawyer is representing more than one client, the question of

consentability must be resolved as to each client.

[15] Consentability is typically determined by considering whether the interests of the clients will be adequately protected if

the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under

paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer

will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).

[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is prohibited by applicable law.

For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a

capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former

government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some

states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest.

[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development

of each client's position when the clients are aligned directly against each other in the same litigation or other proceeding

before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires

examination of the context of the proceeding. Although this paragraph does not preclude a lawyer's multiple representation

of adverse parties to a mediation (because mediation is not a proceeding before a "tribunal" under Rule 1.0(m)), such

representation may be precluded by paragraph (b)(1).

Informed Consent

[18] Informed consent requires that each affected client be aware of the relevant circumstances and of the material and

reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e)

(informed consent). The information required depends on the nature of the conflict and the nature of the risks involved.

When representation of multiple clients in a single matter is undertaken, the information must include the implications of the

common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the

advantages and risks involved. See Comments [30] and [31] (effect of common representation on confidentiality).

[19] Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. For example, when

the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary

to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases

the alternative to common representation can be that each party may have to obtain separate representation with the

possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors

that may be considered by the affected client in determining whether common representation is in the client's interests.

Consent Confirmed in Writing

[20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may

consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an

oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or

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

reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the

lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest,

as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and

alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the

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seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in

the absence of a writing.

Revoking Consent

[21] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's

representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing

to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked

consent because of a material change in circumstances, the reasonable expectations of the other client and whether material

detriment to the other clients or the lawyer would result.

Consent to Future Conflict

[22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of

paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably

understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future

representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations,

the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a

particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard

to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is

not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an

experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such

consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving

consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance

consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict

nonconsentable under paragraph (b).

Conflicts in Litigation

[23] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent.

On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or

codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties'

testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different

possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil.

The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer

should decline to represent more than one codefendant. On the other hand, common representation of persons having similar

interests in civil litigation is proper if the requirements of paragraph (b) are met.

[24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different

clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests

of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists,

however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's

effectiveness in representing another client in a different case; for example, when a decision favoring one client will create

a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether

the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural,

the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the

clients involved and the clients' reasonable expectations in retaining the lawyer. If there is significant risk of material

limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw

from one or both matters.

[25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed

members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of

this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the

person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need

the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

Nonlitigation Conflicts

[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of directly

adverse conflicts in transactional matters, see Comment [7]. Relevant factors in determining whether there is significant

potential for material limitation include the duration and intimacy of the lawyer's relationship with the client or clients

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involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice

to the client from the conflict. The question is often one of proximity and degree. See Comment [8].

[27] For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to

prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of

interest may be present. In estate administration the identity of the client may be unclear under the law of a particular

jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its

beneficiaries. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer's relationship to the

parties involved.

[28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple

parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is

permissible where the clients are generally aligned in interest even though there is some difference in interest among them.

Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous

basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial

reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement

of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties' mutual interests. Otherwise,

each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or

even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

Special Considerations in Common Representation

[29] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common

representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost,

embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if

the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly

impossible. For example, a lawyer cannot undertake common representation of clients where contentious litigation or

negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between

commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be

maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the clients'

interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer

subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a

relationship between the parties.

[30] A particularly important factor in determining the appropriateness of common representation is the effect on clientlawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is

that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation

eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.

[31] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks

the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer

has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the

representation that might affect that client's interests and the right to expect that the lawyer will use that information to that

client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of

obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to

withdraw if one client decides that some matter material to the representation should be kept from the other. In limited

circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after

being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably

conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving

a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.

[32] When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer's role

is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume

greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the

representation made necessary as a result of the common representation should be fully explained to the clients at the outset

of the representation. See Rule 1.2(c).

[33] Subject to the above limitations, each client in the common representation has the right to loyal and diligent

representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to

discharge the lawyer as stated in Rule 1.16.

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Organizational Clients

[34] A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily

represent any constituent or affiliated organization, such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an

organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the

circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between

the lawyer and the organizational client that the lawyer will avoid representation adverse to the client's affiliates, or the

lawyer's obligations to either the organizational client or the new client are likely to limit materially the lawyer's

representation of the other client.

[35] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether

the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving

actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential

intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining

legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's

independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation's

lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances

matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the

attorney-client privilege and that conflict of interest considerations might require the lawyer's recusal as a director or might

require the lawyer and the lawyer's firm to decline representation of the corporation in a matter.

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RULE 1.8 – CONFLICT OF INTEREST: CURRENT CLIENT: SPECIFIC RULES

(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 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.

on behal

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