SALT RIVER PIMA-MARICOPA (2025)

SALT RIVER PIMA-MARICOPA

INDIAN COMMUNITY

10,005 East Osborn Road

Scottsdale, AZ 85256

ORDINANCE NUMBER SRO-588A-2025

AN AMENDMENT TO CHAPTER 5, BY ADDING ARTICLE VIII, REGULATION OF

THE PRACTICE OF LAW, WHICH INCLUDES DIVISION 1: RULES AND

APPLICATION FOR ADMISSION TO PRACTICE, DIVISION 2: RULES OF

PROFESSIONAL CONDUCT, AND DIVISION 3: RULES OF JUDICIAL CONDUCT.

This amendment rescinds and replaces all previous rules relating to the ethical practice of law

within the Community, whether existing in code, administrative order, or otherwise.

Chapter 5, Article VIII, Division 1, Division 2, and Division 3 is hereby enacted effective May 5,

2025, to read as follows:

Division 1. Rules and Application for Admission to Practice.

I.

Licensing Requirement.

No person, including employees or agents of any Salt River Pima-Maricopa Community

agencies and departments such as the Prosecutor, Defense Advocate, Staff Attorney, Court

Solicitor, and Legal Services, may practice before the Salt River Pima-Maricopa Indian

Community Court (“Community Court”) unless that person has been admitted pursuant to these

rules.

Exception: For any case pending before the Community Court, any litigant, subject to the

approval of the Court, may be self-represented or designate a spokesperson who is a relative by

blood or any enrolled member of the Community provided that such relative by blood or enrolled

member of the Community is not an employee of the Community Court and no fee is charged for

services rendered.

Minimum Requirements: Any applicant for admission to practice before the Community Court,

whether on a permanent or temporary (pro hac vice) basis, shall meet the following minimum

requirements:

A. Be at least 21 years old at the time of application;

B. Have completed an application for admission as set forth in these rules;

C. Provide proof of graduation from High School or completion of a GED unless the

applicant provides proof of a college or professional degree;

D. Provide a certificate of good standing (or the equivalent as determined by the Admissions

Committee) from every State and/or any Tribe within Arizona in which the lawyer currently is

licensed to practice;

E. Demonstrated good character, which shall be determined by the Admissions Committee.

II.

Establishment of Admissions Committee.

A. The Admissions Committee (“Committee”) is established under the budget and control of

the Court Administrator. The Committee shall consist of the Director of each legal department (or

their designee), the Presiding Judge of the Community Court (or their designee), a Court Solicitor

(as assigned by the Court Administrator), the Court Administrator (or their designee), and two

Community members at large. The role of Committee Chair shall be filled by the Court

Administrator (or their designee).

B. The Admissions Committee shall be responsible for admission procedures, including but

not limited to the following, as more fully set forth in these rules:

a. establishment and approval of the Character and Fitness Application for

admission;

b. establishment and administration of the Admissions Examination;

c. collection and review of character and fitness information;

d. conducting interviews or hearings as appropriate regarding any applicant the

Committee deems to require additional scrutiny;

e. making final, non-appealable decisions on admission;

f. establishment and administration of the Professionalism Course;

g. ensure compliance with Continuing Legal Education requirements.

III.

Admissions Examination.

Except for advocates already admitted to practice before the Community Court on January

1, 2025, each applicant for admission shall take and receive a passing score on an Admissions

Examination. The Committee shall establish and administer the Admissions Examination and shall

have authority and discretion to determine the manner of taking the examination, the passing score,

and the subject matters covered on the examination; however, the examination shall cover, at a

minimum, the Community Code (civil, juvenile, and criminal), the Community’s Rules of

Professional Conduct, and the Community’s Rules of Judicial Conduct. The examination may be

in “open book” format and/or include multiple choice questions, short essays, or any combination

thereof.

IV.

Character and Fitness Application.

A.

The Committee shall establish a Character and Fitness Application (“Application”)

that each applicant for admission must complete and sign under oath. No applicant shall be

admitted until the Committee is satisfied with reasonable promptness that the applicant has the

requisite character and fitness to practice in the Community.

B. The Application shall require the applicant to disclose, at a minimum, under penalty

of perjury:

1. Five years of employment information, including the dates of employment, the

nature of the employment, the name and contact information for the applicant’s

direct supervisor at each place of employment, and the reason for leaving each

employment. If the applicant was a student during the preceding five years, the

applicant’s school information will be sufficient to fulfill all or part of this

requirement.

2. All post high school education with full disciplinary records inclusive of actual

disciplinary sanctions (whether academic or behavioral) and disciplinary

investigations or proceedings that did not result in sanctions.

3. Any civil action, including divorce or other family matter, in which the applicant

was a party in the preceding 10 years.

4. Other professional licenses and any disciplinary investigation or proceedings (or

resignation in lieu of an investigation or proceeding) in the preceding seven years,

whether or not the investigation or proceeding resulted in disciplinary action.

5. Any allegation of the unauthorized practice of law in any state or jurisdiction.

6. Any allegation against the applicant of fraud, perjury, misrepresentation, or false

swearing in a judicial or administrative proceeding.

7. Whether as an adult or a juvenile, the applicant has been served with a criminal

summons, questioned, arrested, taken into custody, indicted, charged with, tried for,

pleaded guilty to or been convicted of, or ever been the subject of an investigation

concerning the violation of any law, statute, ordinance, rule, regulation, or canon

(including all incidents, no matter how trivial or minor the infraction or whether

guilty or not, whether expunged or not, whether the applicant believes or was

advised that they need not disclose any such instance).

8. Traffic citations in the last seven years (whether guilty or not, expunged or not),

including all moving and non-moving violations that resulted in a fine of $50 or

more.

9. Military record, if any.

10. Three references, one of which shall be a professional reference.

11. Any additional information the applicant believes is relevant to their application for

admission.

C.

The Committee shall treat the contents of each Application as private and confidential.

Applications shall not be inspected by any person not directly involved in the admission process.

V.

Professionalism Course.

The Committee shall establish and provide for the administration of a Professionalism

Course specific to the Salt River Pima-Maricopa Community and the expectations of the

Community Council and Community Court as they pertain to standards of professionalism that are

and shall be expected of all advocates practicing in the Community. The Professionalism Course

must be completed within one (1) year of admission, or for advocates already admitted on January

1, 2025, before January 1, 2027, with proof thereof provided to the Committee in a manner to be

established by the Committee. The Professionalism Course shall be taken once only unless ordered

by the Judicial, Attorney and Advocate Discipline Commission (“Discipline Commission”).

VI.

Continuing Legal Education.

Each person admitted to practice before the Community Court shall complete three (3)

hours of Continuing Legal Education (“CLE”) annually between July 1 and June 30. The

Committee shall establish parameters for acceptable CLE to meet this requirement. Each person

admitted to practice in the Community must provide information related to their CLE requirement

in the form of an affidavit to be developed by the Committee.

Any advocate who fails to meet CLE requirements shall be designated “inactive” to

practice in the Community. Their “inactive” status shall not be considered or deemed disciplinary

in nature. An advocate designated as “inactive” can be reinstated to active status if the advocate

within five (5) years of being designated “inactive” makes up all their cumulative delinquent CLE

requirements and provides an affidavit to that effect to the Committee. After five (5) years of

“inactive” status for failure to meet CLE requirements, a person wishing to be reinstated must

apply for admission as though the applicant were applying for the first time, including successful

completion of all admissions requirements. A person may apply for relief from this rule by filing

a petition with the Committee stating good cause for the requested relief.

VII.

Ongoing Duty to Report.

Each advocate admitted to practice in the Community shall have an ongoing duty to report

to the Committee any final disciplinary sanction or diversion imposed by any other jurisdiction.

The report must be made within thirty (30) days of the effective date of the sanction. The

Committee shall forward any such report to the Discipline Commission for consideration for

possible disciplinary action.

VIII. Pro Hac Vice Admission.

The Committee shall establish rules and procedures for admission to practice before the

Community Court on a temporary basis. The Presiding Judge shall have final authority to admit

or deny an application for Pro Hac Vice admission.

IX.

Oath of Office.

Upon satisfying the qualifications for admission, the Court Administrator shall arrange for

the applicant to be admitted under oath either in open court or by signing a written oath before a

notary public. The form of the oath shall be prescribed by the Admissions Committee and shall

include, at a minimum, swearing to support the Constitution of the Salt River Pima-Maricopa

Indian Community and conform to all Community laws and regulations and all rules and orders of

the Community Court.

X.

Practice Pending Admission.

An applicant who currently holds an active license to practice law in another tribal or state

jurisdiction, and who has been primarily engaged in the active practice of law for three of the five

years immediately preceding applying for admission under these rules, may provide legal services

before the Community Court for no more than 365 days, provided that the applicant:

A. Is in good standing in all courts and jurisdictions in which the applicant currently is

admitted to practice;

B. Is not currently subject to an order of discipline or the subject of a pending disciplinary

or disability investigation in any jurisdiction;

C. Has first submitted an application for admission to practice before the Community

Court;

D. Reasonably expects to fulfill all of the requirements for admission;

E. Associates with and is supervised by an advocate licensed to practice before the

Community Court and discloses in writing to the Admissions Committee and the

Presiding Judge the name and contact information of that advocate;

F. Provides to the Admissions Committee and the Presiding Judge a signed declaration

of the licensed advocate certifying the applicant’s association with and supervision by

that advocate;

G. Affirmatively states in all communications and Court documents that the applicant’s

application for admission is pending.

XI.

Certified Limited Practice Students.

The purpose of this provision is to provide law school students supervised instruction and

training in the practice of law for a limited time and to provide volunteers opportunities.

A. To be eligible to become a Certified Limited Practice Student, an applicant must:

1. Have successfully completed legal studies amounting to at least two semesters,

or the equivalent academic hour , at an ABA accredited law school;

2. Neither ask for nor receive compensation or remuneration of any kind for

services rendered by the Certified Limited Practice Student from the person on

whose behalf the services are rendered (payment by the Community, however,

is permitted);

3. Certify in writing that the student has read the Community’s Rules of

Professional Conduct;

4. Be certified by the Dean of the law school that the student is in good academic

standing, of good character, and as has either completed, enrolled in, or is

currently attending academic courses in civil procedure, criminal law,

evidence, and professional responsibility.

B. Applicants to become a Certified Limited Practice Student shall:

1. Submit an application to the Admissions Committee in a form to be determined

by the Committee;

2. Attest that the applicant meets all of the requirements set forth in this rule;

3. Submit a written statement by the applicant’s supervising advocate stating the

period of time during which the supervising advocate will assume supervisory

responsibility for the applicant.

C. A Certified Limited Practice Student shall be authorized to:

1. Appear in Community Court in the presence of the supervising advocate on

behalf of any person who has consented in writing to that appearance, which

consent shall be filed with the Court and brought to the attention of the Judge

presiding over the matter at issue;

2. Prepare pleadings and other documents to be filed in any matter in which the

Certified Limited Practice Student is eligible to appear in Court, provided such

pleadings are signed by the supervising advocate;

3. Give legal advice and perform other legal services but only with the consent

of the supervising advocate;

4. Use the term Certified Limited Practice Student whenever holding themselves

out to the Court, clients, and the public in respect to any matter in which they

are involved pursuant to this rule.

Division 2. Rules of Professional Conduct.

Salt River Pima-Maricopa Indian Community

Model Rules of Professional Conduct

Table of Contents

Preamble

Rule 1.0

Client-Advocate Relationship

Rule 1.1 Competence

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

Rule 1.3 Diligence

Rule 1.4 Communication

Rule 1.5 Fees

Rule 1.7 Conflict of Interest: Current Clients: General Rules

Rule 1.8 Conflict of Interest: Current Clients: Specific Rules

Rule 1.9 Duties to Former Clients

Rule 1.10 Imputation of Conflicts of Interest: General Rule for Advocate with a Firm

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 Reserved

Rule 1.18 Duties to Prospective Client

Counselor

Rule 2.1

Rule 2.2

Rule 2.3

Rule 2.4

Advisor

Reserved

Evaluation for Use by Third Persons

Advocate Serving as Third-Party Neutral

Rule 3.1

Rule 3.2

Rule 3.3

Rule 3.4

Rule 3.5

Rule 3.6

Advocate

Meritorious Claims and Contentions

Expediting Litigation

Candor Toward the Tribunal

Fairness to Opposing Party and Counsel

Impartiality and Decorum of the Tribunal

Trial Publicity

Rule 3.7 Advocate as Witness

Rule 3.8 Special Responsibilities of a Prosecutor

Rule 3.9 Advocate in Other Proceedings

Rule 3.10 Credible and Material Exculpatory Information about a Convicted Person

Rule 4.1

Rule 4.2

Rule 4.3

Rule 4.4

Transactions with Persons Other Than Clients

Truthfulness in Statements to Others

Communication with Person Represented by Counsel

Dealing with Unrepresented Person

Respect for Rights of Third Persons

Rule 5.1

Rule 5.2

Rule 5.3

Rule 5.4

Rule 5.5

Rule 5.6

Rule 5.7

Rule 5.8

SRP-MIC Legal Departments, Advocate Firms, and Associates

Responsibilities of Partners, Managers, and Supervisory Advocates

Responsibilities of a Subordinate Advocate

Responsibilities Regarding Non-Advocate Assistants

Professional Independence of an Advocate

Unauthorized Practice; Multijurisdictional Practice

Restrictions on Right to Practice

Responsibilities Regarding Law-Related Services

Accepting Appointments

Rule 6.1

Rule 6.2

Rule 6.3

Public Service

Membership in Legal Services Organization

Law Reform Activities Affecting Client Interests

Nonprofit and Court-Sponsored Limited Legal Service Programs

Rule 7.1

Rule 7.2

Rule 7.3

Rule 7.4

Rule 7.5

Rule 7.6

Information About Legal Services

Communications Concerning an Advocate’s Services

Advertising

Solicitation of Clients

Communication of Fields of Practice and Specialization

Reserved

Political Contributions to Obtain Legal Engagements or Appointments by Judges

Rule 8.1

Rule 8.2

Rule 8.3

Rule 8.4

Rule 8.5

Maintaining the Integrity of the Profession

Admission and Disciplinary Actions

Judicial and Legal Officials

Reporting Professional Misconduct

Misconduct

Disciplinary Authority; Choice of Law

Preamble

These Rules of Professional Conduct apply equally to (1) advocates who are licensed

to practice law in another jurisdiction and have been approved to practice before the Court of the

Salt River Pima-Maricopa Indian Community, and (2) advocates who are permitted to represent

clients before the Court of the Salt River Pima-Maricopa Indian Community but who are not

licensed to practice law in any tribe, state or territory of the United States. The Rules serve not

only as a maxim for practice and advocacy before the Court of the Salt River Pima-Maricopa

Indian Community, but also to acknowledge and promote the concept that service to others is

central to the principles of custom and tradition as understood by the Onk Akimel O’odham and

Xalychidom Piipaash people.

A Salt River Pima-Maricopa Indian Community advocate is a legal professional, a

representative of clients, and an officer of the Community’s Court. An advocate has a special

responsibility to provide the highest quality of service to each client. As a representative of clients,

an advocate performs various functions that require knowledge of the law, keeping up to date with

changes in the law, and sensitivity to matters that are culturally relevant. An advocate is

responsible to maintain meaningful client communication, to be prompt and diligent in the

representation of his or her clients, and to advise each client of his or her legal rights and options

as well as assist in the explanation of the possible outcomes of an individual’s decisions.

Communications between the advocate and client must be confidential and

consistent with these Rules of Professional Conduct or other law. An advocate should use the

law’s procedures only for legitimate purposes and not to harass or intimidate others. An advocate

should demonstrate respect for the legal system and for those who serve it including judges, other

advocates, and public officials. An advocate has a duty to uphold the legal process, and at all

times, be candid with, and respectful to, the tribunal. Any participant in the Community judicial

system should endeavor to resolve disputes with other participants and address any ethical concern

regarding another participant directly before referring a matter for possible disciplinary review.

An advocate should comply with the letter and spirit of these Rules in order to make the Court of

the Salt River Pima-Maricopa Indian Community work fairly and efficiently.

The Rules of Professional Conduct are rules of reason that are designed to provide

guidance to advocates, the courts, and members of the Community, and to provide a structure for

all to understand and guide their conduct in the best interests of clients and the Community’s

system of justice. The Rules also are intended to regulate advocates’ conduct and, when necessary,

to investigate potential misconduct through the disciplinary process. Disciplinary assessment of

an advocate’s conduct should be made on the basis of the advocate’s knowledge of relevant

circumstances at the time of the conduct and with recognition of the fact that advocates must at

times act based on incomplete knowledge of relevant facts and at times while making professional

decisions that have to balance competing interests.

The Rules presuppose a larger legal and cultural context shaping the advocate’s role.

That context includes court rules and statutes relating to matters of licensure to practice in the

Community, laws defining representation of clients in the Community, and substantive and

procedural law in general. The Rules do not exhaust the cultural, moral, and ethical considerations

that should inform an advocate’s conduct and professional judgment. No human activity can be

completely defined by the legal rules.

The Rules are not designed to be a basis for civil liability, or to be used by opposing

parties as procedural weapons. Violation of a rule should not in itself give rise to a cause of action

against an advocate, nor should it create any presumption in such a case that a legal duty has been

breached. Additionally, a violation of a rule does not necessarily warrant disciplinary or nondisciplinary remedies, such as disqualification of an advocate in pending litigation.

Some Rules are followed by a comments section. These comments are meant to explain

and illustrate the meaning and purpose of the rule. The comments are intended as guides to

interpretation of the Rules.

Client-Advocate Relationship

Rule 1.1 Competence

An advocate shall provide competent representation to a client. Competent representation requires

the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the

representation. Competent representation includes appearing on time and being prepared for

scheduled court proceedings. An advocate may accept representation when reasonable study and

preparation can raise his or her competence to that needed for a particular case. In determining

whether an advocate employs the necessary knowledge and skill in a particular matter, relevant

factors include the complexity of the matter, the advocate’s experience, the amount of time to

study and prepare the case; and whether it may be helpful either to refer the matter to another

advocate who is competent in the field in question, or to work with another advocate on the case.

In emergency situations, an advocate may provide limited assistance (as opposed to representation)

in a matter in which the advocate does not have the required legal knowledge or skill and when

referral to or consultation with another advocate is impractical. This type of emergency assistance

shall be limited to that reasonably necessary under the circumstances. To maintain the necessary

knowledge and skill, an advocate should keep up to date about changes in the law and its practice,

engage in continuing study and education, including cultural awareness and sensitivity, and

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

Rule 1.1 Competence - Comment

Thoroughness and Preparation

[1] In deciding whether to undertake representation of a client, an advocate should consider that

competent handling of a particular matter includes:

a.

the ability to consider and analyze the factual and legal elements of the problem,

and

b.

the ability to then apply the methods and procedures that meet the standards of

competent practitioners,

c.

adequate preparation which is 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), and

d. the advocate’s workload.

Cultural Competence

[2] An advocate should endeavor at all times to be culturally competent. An advocate can refer to

the SRP-MIC Cultural Resources Department website for information and programs to become

culturally competent. To be culturally competent means having the capacity to provide effective

legal representation that is grounded in an awareness of and sensitivity to the various people that

the SRP-MIC Court serves. A cultural group is identified by the shared beliefs, values, customs

and behaviors that define it, and is particularly important with racially, ethnically and culturally

distinct communities, including those who use a language other than English. Cultural

competence is also important for persons with disabilities. Cultural competence and the degree

to which an advocate demonstrates appreciation for and understanding of cultural factors are

important attributes for an advocate because culture can affect the quality of the advocate-client

relationship, the effectiveness of communication between an advocate and client, the advocate’s

understanding of a client’s objectives for the representation, a client’s reactions to conflict, a

client’s perceptions of the legal system, and other aspects of the legal system.

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

(a) An advocate shall abide by a client’s decisions concerning the objectives of representation,

subject to subsections (b), and (d), and shall consult and communicate with the client as to the

means by which they are to be pursued. An advocate shall abide by a client’s decision whether to

accept an offer of settlement of a matter. In a criminal case, the advocate shall abide by the client’s

decision, after consultation with the advocate, as to a plea to be entered, whether to waive jury

trial, whether to accept or deny a plea agreement, and whether the client will testify. At the outset

of a representation, the client may authorize the advocate to take specific action on the client's

behalf without further consultation. Absent a material change in circumstances, an advocate may

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

(b) The advocate and the client may agree to limit the scope of the representation. An advocate

undertaking a limited-scope representation must have the knowledge and skill to perform those

tasks competently and must also know enough to counsel the client regarding the advisability of

the action contemplated. The scope of the representation may be limited only if the limitation is

reasonable under the circumstances and the client gives written consent after consultation.

(c) An advocate’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.

(d) An advocate shall not counsel a client to engage, or assist a client, in conduct that the advocate

knows is criminal or fraudulent, but an advocate 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. An advocate may not

continue assisting a client in conduct that the advocate originally supposed was legally proper but

then discovers is criminal or fraudulent. The advocate must, in such a situation, withdraw from

the representation of the client in the matter. In some cases, withdrawal alone might be insufficient.

It may be necessary for the advocate to give notice of the fact of withdrawal and to disaffirm any

opinion, document, affirmation, or the like. In extreme cases, an advocate may be required to

disclose information relating to the representation to avoid being deemed to have assisted the

client’s crime or fraud. See also Rule 1.15.

(e) If the advocate has a fundamental disagreement with the client, the advocate may decline the

representation or withdraw from the representation provided the advocate is not prevented from

withdrawal pursuant to a court order, Rule 1.16, or other law. Fundamental disagreement shall

mean disagreement as to an issue of material importance between the advocate and client that

cannot be resolved and that adversely affects the client/advocate relationship. In civil cases, the

client may resolve the disagreement by representing themselves, or by discharging the advocate,

with the understanding that any subsequent counsel may be retained or appointed at the client’s

expense. In criminal cases, the client may resolve the disagreement by representing themselves or

hiring an advocate, at the client’s own expense.

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

- Comment

Allocation of Authority between Client and Advocate

[1] In a case in which the client appears to be suffering diminished mental capacity, the advocate's

duty to abide by the client's decisions is to be guided by Rule 1.13.

Limited Scope Representations

[2] Limited-scope representation occurs when an advocate represents or assists a client with part,

but not all, of the client’s legal matter. Limited representation by government provided advocates

differs significantly from limited representation for paying clients. When an advocate is provided

by the government, an advocate, not the client, determines what services will be provided. As

such, a burden is placed on the advocate to carefully consider when limited representation is

offered and the implications limited representation presents in terms of a client’s informed consent

and the client’s ability and means to secure additional representation, if desired.

[3] Although an agreement for limited representation does not exempt an advocate from the duty

to provide competent representation, the limitation is a factor to consider when determining the

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

See Rule 1.1.

[4] All agreements concerning an advocate’s representation of a client must accord with the Rules

of Professional Conduct and other SRP-MIC law. See Rules 1.1, 1.8, and 5.6.

Rule 1.3 Diligence

An advocate shall act with reasonable diligence and promptness in representing a client.

Diligence includes making best efforts to communicate with clients. An advocate should pursue

a matter diligently on behalf of a client to the best of the advocate’s ability and take whatever

lawful and ethical measures are required to advance the client’s cause with reasonable speed. To

that end, an advocate may have authority to choose the methods in which a matter is pursued and

to make strategic decisions designed to advance the client’s cause without undue delay.

Rule 1.3 Diligence - Comment

[1] An advocate’s duty to act with reasonable promptness does not prevent an advocate from

agreeing to a reasonable request for a postponement of a hearing or deadline when it will not

negatively affect the advocate’s client. However, such actions as failing to communicate with

reasonable promptness a plea offer, to notify a client of the receipt of funds on their behalf, failing

to promptly remit those funds to clients entitled to receive them, delaying responding to client’s

inquiries and requests to access their files, and delays in preparing and filing papers on their

behalf may be factors for consideration in determining whether violations of the advocate’s duty

of diligence has occurred.

Rule 1.4 Communication

(a) An advocate shall:

(1) promptly inform the client of any decision or circumstance under these Rules that

require informed consent, as defined in Rule 1.0(e);

(2) reasonably consult with the client about the methods which the client's goals are to be

accomplished and inform the client of relevant limitations on the advocate’s conduct if the

client expects the advocate to take actions not permitted by the Rules of Professional

Conduct or other law;

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

(4) promptly comply with reasonable requests for information.

(b) An advocate shall fully explain a matter to the client so the client can make informed decisions

regarding the representation. An advocate shall promptly consult with the client and obtain consent

prior to taking action unless the client previously has given direction as to how the client wishes

the advocate to handle the matter.

(c) In a criminal case, an advocate shall promptly inform a client of all extended plea agreements.

Rule 1.4 Communication - Comment

Communicating with Client

[1] The client should have enough information to help make informed decisions concerning the

goals of the representation and the methods by which they are to be used to reach such goals

should the client wish to do so. Ordinarily, the information and explanation to be provided is that

appropriate for a client who is a comprehending and responsible adult. As an advisor, an advocate

should consider both legal and practical information in deciding how to counsel a client. See Rule

2.1.

[2] An advocate should promptly respond to or acknowledge all client communications, including

telephone calls, emails, text messages, etc. When a client makes a reasonable request for

information, requested information should be provided within a reasonable time. If a prompt

response is not possible, then the advocate or a member of the advocate’s staff should acknowledge

receipt of the request and advise the client as to when a response may be expected. See also Rule.

5.1and Rule 5.3 for responsibilities of supervisory advocates.

[3] Circumstances may arise in which communication with a client does not occur due to an

unavailable or unresponsive client. In these situations, representation becomes difficult, and an

advocate may but is not required to withdraw under Rule 1.15. The advocate must still make

reasonable efforts to locate and communicate with the client and, if necessary, inform the client of

the advocate’s intent to withdraw. If an advocate elects to withdraw due to a client’s failure to

respond or be available to the advocate, the advocate must nevertheless protect client confidences

when moving to withdraw. See Rule 1.6.

Clients with Diminished Capacity

[3] Fully informing a client of information sufficient for the client to make informed decisions

about the representation may be difficult or impossible where the client is a child or suffers from

diminished capacity. In such a situation, the advocate must carefully consider what the client is

capable of understanding given the client’s age, education, mental capacity, etc. See Rule 1.13.

Withholding Information

[4] In specific circumstances, an advocate may be justified in delaying transmission of information

when the client’s reaction is likely to be harmful to the client. For example, an advocate might

withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that

disclosure would harm the client. An advocate may not withhold information to serve the

advocate’s own interests or the interests of another person.

Rule 1.5 Fees

(a) An advocate 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 but are not limited to 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 fee customarily charged in the locality for similar legal services;

(3) the facts involved in the case and the results obtained;

(4) the time constraints imposed by the client or by the circumstances;

(5) the nature and length of the professional relationship with the client;

(6) the experience, reputation, and ability of the advocate(s) performing the services; and

(7) 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 in writing, before or within a reasonable

time after commencing the representation, except when the advocate will charge a regularly

represented client on the same basis or rate. Changes in the basis or rate of the fee or expenses

shall also be communicated to the client in writing and reviewed with the client before or within a

reasonable time of the change. Any changes in the basis or rate of the fee or expenses shall also be

communicated in writing before the fees or expenses to be billed at higher rates are actually

incurred. The requirements of this subsection do not apply to: (1) court-appointed advocates who

are paid by a court or other governmental entity, and (2) advocates who provide pro bono shortterm limited legal services to a client pursuant to Rule 6.5.

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

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

agreement shall be signed by both the advocate and 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

advocate 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 the client will be

responsible for, independent of the outcome of the matter. Upon conclusion of a contingent fee

matter, the advocate shall provide the client with a written statement stating the outcome of the

matter and, if there is a recovery, an accounting showing all of the disbursements of the original

recovery amount, the remittance to the client and the method of determination.

(d) An advocate shall not enter into an arrangement for, charge, or collect:

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

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

in lieu thereof; or

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

(3) a fee denominated as “earned upon receipt,” “nonrefundable” or in similar terms unless

the client is simultaneously advised in writing that the client may nevertheless discharge

the advocate at any time and in that event may be entitled to a refund of all or part of the

fee based upon the value of the representation pursuant to paragraph (a).

(e) Two or more advocates, or their respective firms, jointly working on a matter may divide a fee

if:

(1) the advocates or firms disclose to the client in writing how the fee will be divided and

how the advocates or firms will divide respective responsibility for the matter among themselves;

(2) the client consents to the division of the fees in a writing signed by the client;

(3) the total fee is reasonable; and

(4) the division of responsibility among the advocates or firms is reasonable in light of the

client’s need that the entire representation be completely and diligently completed.

Rule 1.5 Fees – Comment

Reasonableness of Fee and Expenses and Basis or Rate of Fee

[1] The Rule requires that advocates charge fees and expenses that are reasonable under the

circumstances. In any client-advocate relationship, an understanding as to fees and expenses must

be promptly established. The advocate should furnish the client with at least a simple

memorandum, email or copy of the advocate’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. An advocate may seek reimbursement for the reasonable 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 advocate.

[2] In determining whether a particular contingent fee is reasonable, or whether it is reasonable

to charge any form of contingent fee, an advocate must consider the factors and any applicable

law that are relevant under the circumstances.

Terms of Payment

[3] An advocate may require advance payment of a fee but is obliged to return any unearned

portion as described in Rule 1.15(d). An advocate should not enter into an agreement whereby

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

will be required unless the situation is adequately explained to the client. Otherwise, the client

might have to negotiate 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. An

advocate should not exploit a fee arrangement based primarily on hourly charges by using

wasteful procedures.

[4] An advocate cannot contract for a contingent fee for legal representation when collecting

support, alimony or other financial payments pursuant to a Petition for Comity.

Division of Fee

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

are not in the same firm. The client must agree to the arrangement, including the share that each

advocate is to receive, and the agreement must be confirmed in writing by all parties. Joint

responsibility for the representation entails financial and ethical responsibility for the

representation as if the advocates were associated in a partnership. A referral should be made

only when the referring advocate reasonably believes that the other advocate is competent to

handle the matter.

Disputes over Fees

[6] Advocates and clients should attempt to resolve disputes over fees amicably before resorting

to legal remedies or alternative dispute resolution.

Rule 1.6 Confidentiality of Information

(a) An advocate 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), (c), (d) or Rule 3.3(a).

(b) An advocate shall reveal such information to the extent the advocate reasonably believes

necessary to prevent the client from committing a criminal act that the advocate believes is likely

to result in death or substantial bodily harm.

(c) An advocate may reveal intention of the advocate’s client to commit a crime and the

information necessary to prevent the crime.

(d) An advocate may reveal information relating to the representation of a client to the extent the

advocate 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 advocate'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 advocate's services;

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

(5) to establish a claim or defense on behalf of the advocate in a controversy between the

advocate and the client, to establish a defense to a criminal charge or civil claim against

the advocate based upon conduct in which the client was involved, or to respond to

allegations in any proceeding or inquiry by the Community executive administration

concerning the advocate's representation of the client;

(6) to comply with other law or a Court order;

(7) to detect and resolve conflicts of interest arising from the advocate’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 advocate-client privilege or otherwise

prejudice the client; or

(8) to respond to questions from the Court related to a client’s unavailability or failure to

communicate with the advocate, with the objective of providing candid and relevant

information to the Community Court without unduly prejudicing the client’s rights or

interests.

(e) An advocate shall make reasonable efforts to prevent the inadvertent or unauthorized

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

Rule 1.6 Confidentiality of Information - Comment

[1] Paragraph (a) establishes an advocate’s broad duty to maintain and protect client

confidences. Subsections (b) – (d) establish narrow exceptions to the duty of confidentiality.

Advocates discuss client confidences in a way that might allow a third party to ascertain

information about the client or case. An advocate may use hypotheticals to discuss specific legal

issues, as long as the examples do not reveal their client’s identity or their case.

Authorized Disclosure

[2] An advocate may discuss information about a client’s case when the client has authorized

disclosure directly or by implication. Client authority may be implied if disclosure is necessary to

carry out the client’s objectives for the representation. For example, an advocate may be allowed

to admit a fact that would be hard to dispute or admit a fact in order to satisfactorily resolve the

case. Advocates that work together in a firm may talk about a client’s case unless the client has

told the advocate that they may not share case information with coworkers. Keeping client and

case information private also applies to advocates who represent the government.

The requirement of maintaining confidentiality of information relating to representation applies

to government advocates who may disagree with the policy goals that their representation is

designed to advance.

Subsection (d)(6) permits an advocate to disclose information to authorities which the advocate

learns during the course of representation, concerning the exploitation or abuse of an elderly or

vulnerable person or child, when required to do so under Community law, even if the client does

not want the advocate to report the information.

Acting Competently to Preserve Confidentiality

[3] An advocate must keep all client and case information, including information stored in

electronic form, provided the advocate has reasonable safeguards in place to prevent the

information from being released accidentally or without permission. This duty includes making

sure persons who work for and with the advocate understand that client information is private,

and reasonable efforts are taken under the circumstances to prevent access or disclosure.

[4] An advocate must be careful with client information when transmitting a communication to

others and make sure that only the intended person receives the information. This responsibility

does not mean an advocate must use special security measures when the method of communication

affords a reasonable expectation of privacy. Whether the advocate sent the information by

properly secured means can be decided by the circumstances, including the advocate’s actions

and whether the law or an agreement might have provided greater protection.

[5] The duty of confidentiality continues after the client-advocate relationship has terminated. See

Rule 1.9 (c)(2).

Rule 1.7 Conflict of Interest: Current Clients: General

(a) Except as provided in paragraph (b), an advocate 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 advocate's responsibilities to another client, a former client, a third person

or a personal interest of the advocate.

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

represent a client if each affected client gives informed written consent and each of the following

conditions are met:

(1) the advocate reasonably believes that he or she will be able to provide competent and

diligent representation to each affected client;

(2) the representation is not prohibited by Community law; and

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

clients against another client represented by the advocate, either in the same litigation or

other proceeding in any court or jurisdiction.

Rule 1.7 Conflict of Interest: Current Clients: General - Comment

General Principles

[1[Loyalty and independent judgment are essential in an advocate’s relationship with a client.

Concurrent conflicts of interest may arise from an advocate’s responsibilities to 1) another client;

2) a former client; 3) a third person; or 4) the advocate’s own interests.

[2] To understand whether an advocate has a conflict of interest problem under this Rule, and if

so, what steps to take, the advocate should: 1) 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; and 4) if the representation may be undertaken, consult with the clients

affected and obtain their informed written consents. If a conflict exists that cannot be waived, or

that an affected client declines to waive, the advocate must decline the representation or withdraw

from an existing representation.

Identifying Conflicts of Interest: Directly Adverse

[3] Although directly adverse conflicts arise most frequently in litigation, they also arise in

transactional matters. For example, if an advocate is asked to represent a seller in negotiations

with a buyer represented by the advocate, not in the same transaction but in another, unrelated

matter, the advocate could not undertake the matter without informed consent.

Conflict questions may arise in estate planning and estate administration. For example, an

advocate 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 client is the person seeking the advocate’s services. The client is not

the estate, trust or beneficiaries. In order to comply with conflict of interest rules, the advocate

should make clear the advocate's relationship to the parties involved. In litigation, factors that an

advocate should consider in determining whether the clients need to be advised of an actual or

potential conflict include, but are not necessarily limited to, the following: jurisdiction, 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 advocate. If there is significant risk of material

limitation, then absent informed consent of the affected clients, an advocate should refuse one of

the representations or withdraw from one or both matters.

One example of a directly adverse conflict in litigation is an advocate representing different clients

charged separately related to the same alleged criminal offense. This could require the advocate

to cross-examine Client A, who appears as a witness in a case involving Client B when the

testimony could be damaging to Client A.

Personal Interest Conflicts

[4] When advocates representing different clients in the same matter or in substantially related

matters are closely related by blood or marriage, there is a significant risk that client confidences

will be revealed and that the advocates’ family relationships will interfere with independent

professional judgment. Thus, related advocates (e.g., as parent, child, sibling or spouse) ordinarily

may not represent opposing clients, unless each client gives informed written consent. The

disqualification arising from a close family relationship is personal and ordinarily is not imputed

to members of firms with whom the advocates are associated.

Prohibited Representations

[6] Ordinarily, clients may consent to representation notwithstanding a conflict. As indicated in

paragraph (b), however, some conflicts are non-consentable, meaning that the advocate involved

may not ask for such agreement or provide representation on the basis of the client's consent.

When the advocate represents more than one client, the question of consentability must be resolved

as to each client.

[7] Consentability is typically determined by considering whether the client’s interests will be

adequately protected if they are permitted to give their informed consent. Under paragraph (b)(1),

representation is prohibited if the advocate cannot reasonably conclude that competent and

diligent representation of both clients is impossible under the circumstances.

[8] Paragraph (b)(2) describes conflicts that are non-consentable 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 (b)(2) does not preclude an advocate’s representation

of adverse parties in a mediation (because mediation is not a proceeding before a "tribunal" under

Rule 1.0(l)), such representation may be precluded by paragraph (b)(1).

Informed Consent

[9] Informed consent requires that each affected client be aware of the relevant circumstances of

the conflict, and of reasonably foreseeable effects the conflict may have on the interests of that

client, including loyalty, confidentiality and the attorney-client privilege and the advantages and

risks involved. See Rule 1.0(e).

[10] Under some circumstances it may be impossible to make the disclosure necessary to obtain

consent- for example, when the advocate represents different clients in related matters and Client

A refuses to consent to the disclosure necessary to permit Client B to make an informed decision.

In these cases, the advocate cannot properly ask Client B to consent. See Rule 1.6.

Consent Confirmed in Writing

[11] Paragraph (b) requires the advocate to obtain the informed consent of the client, confirmed

in writing. Such writing must be executed by the client, or promptly recorded and transmitted to

the client following an oral consent, within a reasonable time following the client’s consent. The

requirement of a writing does not replace the need for the advocate to talk with the client, to

explain the risks and advantages - as well as reasonably available alternatives - and to afford the

client a reasonable opportunity to discuss options, questions and concerns. Rather, the writing is

required in order to impress upon clients the seriousness of the decision the client is being asked

to make and to avoid disputes or uncertainty that might later occur.

Revoking Consent

[12] A client who has given consent to a conflict may revoke the consent at any time and by doing

so would terminate the advocate’s representation.

Consent to Future Conflict

[13] Whether an advocate 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. A more comprehensive explanation of the types of future representations that might

arise - and the actual and reasonably foreseeable adverse consequences - may result in a greater

likelihood that the client will have the requisite understanding and that the future conflict waiver

will be enforceable.

Special Considerations in Common Representation

[14] With regard to the attorney-client privilege, the prevailing rule is, as between commonly

represented clients, the privilege does not attach. Hence, it must be assumed that if litigation arises

between the clients, the privilege will not protect any such communications, and the clients should

be so advised before they consent to common representation.

[15] When seeking to establish or adjust a relationship between commonly-represented clients,

the advocate should make clear that the advocate's role is not that of partisanship normally

expected in other circumstances. Therefore, 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 as a result of the common representation should be fully

explained to the clients at the outset of the representation, or immediately as they arise. See Rule

1.2(b).

Organizational Clients

[16] An advocate who represents a corporation or other organization does not, by virtue of that

representation, necessarily represent any constituent or affiliated organization. Thus, the advocate

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 advocate; there is an understanding between the advocate and the organizational

client that the advocate will avoid representation adverse to the organizational client's affiliates;

or the advocate's obligations to either the organizational client or the new client are likely to limit

materially the advocate's representation of the either client.

[17] An advocate 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 advocate

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 advocate's resignation from the board and the possibility

of the corporation's obtaining legal advice from another advocate in such situations. If there is

material risk that the dual role will compromise the advocate's independence of professional

judgment, the advocate should not serve in both capacities when conflicts of interest arise. The

advocate should advise other members of the board that in some circumstances, matters discussed

at board meetings while the advocate 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

advocate's recusal as a director or might require the advocate and the advocate's firm to decline

representation of the corporation in a matter.

Rule 1.8 Conflict of Interest: Current Clients: Specific Rules

(a) An advocate 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 advocate acquires the interest are fair and

reasonable and are fully disclosed and transmitted in writing in a format that can be

reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking the advice of independent

legal counsel on the transaction, and is given a reasonable opportunity to do so; and

(3) the client gives written informed consent to the essential terms of the transaction and

the advocate’s role in the transaction, including whether the advocate is representing the

client in the transaction.

(b) An advocate shall not use information relating to representation of a client to the disadvantage

of the client unless the client gives informed consent, except as defined in Rule 1.8 Comment [4].

(c) An advocate shall not solicit any substantial gift from a client, including a testamentary gift, or

prepare on behalf of a client an instrument giving the advocate or a person related to the advocate

any substantial gift, unless the advocate or other recipient of the gift is related to the client. For

purposes of this paragraph, related persons include a spouse, child, grandchild, parent,

grandparent, or other relative or individual with who the advocate or the client maintains a close,

familial relationship.

(d) Prior to the conclusion of representation of a client, an advocate shall not make or negotiate an

agreement giving the advocate literary or media rights to a portrayal or account based in substantial

part on information relating to the representation

(e) An advocate shall not provide financial assistance to a client in connection with pending or

contemplated litigation, except that:

(1) an advocate may advance Court costs and expenses of litigation, the repayment of

which may be contingent on the outcome of the matter; and

(2) an advocate representing an indigent client may pay Court costs and expenses of

litigation on behalf of the client.

(e) An advocate shall not accept compensation for representing a client from one other than the

client unless:

(1) the client gives informed written consent;

(2) there is no interference with the advocate's independence of professional judgment or

with the client-advocate relationship; and

(3) information relating to representation of a client is protected as required under Rule 1.6.

(f) An advocate who represents two or more clients shall not participate in making an aggregate

settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as

to guilty, unless each client gives informed consent, in a writing signed by the client. The

advocate’s disclosure shall include the existence and nature of all the claims or pleas involved and

of the participation of each person in the settlement.

(g) An advocate shall not acquire a proprietary interest in the cause of action or subject matter of

litigation the advocate is conducting for a client, except that the advocate may:

(1) acquire a lien authorized by law to secure the advocate’s fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

(h) An advocate shall not:

(1) make an agreement prospectively limiting the advocate’s liability to a client for

malpractice unless the client is independently represented in making the agreement; or

(2) settle a claim or potential claim for such liability with an unrepresented client or former

client unless that person is advised in writing of the desirability of seeking and is given a

reasonable opportunity to seek the advice of independent legal counsel in connection

therewith; or

(3) make an agreement prospectively limiting the client’s right to report the advocate to

appropriate professional authorities.

(i) An advocate shall not have sexual relations with a client unless a consensual sexual relationship

existed between them when the client-advocate relationship commenced.

(j) While advocates are associated in a firm, a prohibition in paragraphs (a) through (h) above that

applies to any one of them shall apply to all of them.

Rule 1.8 Conflict of Interest: Current Clients: Specific Rules - Comment

Business Transactions between Client and Advocate

[1] Business transactions with clients governed by subsection (a) include those closely related to

the subject matter of the representation, for example, when an advocate drafting a will for a client

learns that the client needs money for unrelated expenses and offers to make a loan to the client.

The Rule also applies to advocates purchasing property from estates they represent and when the

advocate accepts an interest in the client's business or other non-monetary property as payment

of all or part of a fee.

Use of Information Related to Representation

[2] An advocate shall not use information relating to the representation to the disadvantage of the

client as this violates the advocate’s duty of loyalty, except as such may apply to the following

statement: An advocate does not violate this duty of loyalty when she/he capitalizes on business

opportunities made known to him/her during the course of representation if after written

disclosure, the client elects to forego the opportunity. The underlying reasoning is that the

opportunity cost to a client, or their best foregone alternative, is not to be construed as a

disadvantage.

Gifts to Advocates

[3] An advocate may not suggest or accept that a substantial gift be made, for the advocate’s

benefit, except when the advocate is related to the client as set forth in the Rule. This Rule is not

intended to be construed as prohibiting acceptance, within the bounds of good taste, of social

amenities consistent with generally prevailing customs. Such gifts may include, among others,

presents given at a holiday or as a token of appreciation.

[6] If the gift requires preparing a legal instrument such as a will or conveyance, the client should

have the independent advice of another advocate before gifting or conveying. The sole exception

to this Rule is where the client is a relative of the advocate receiving the gift.

Financial Assistance

[7] Advocates may not subsidize lawsuits or administrative proceedings brought on behalf of their

clients, including making or guaranteeing loans to their clients for living expenses, because to do

so would encourage clients to pursue lawsuits that might not otherwise be brought and because

such assistance gives advocates too great a financial stake in the litigation.

Person Paying for an Advocate’s Services

[8] Advocates are frequently asked to represent a client under circumstances in which a third

person will compensate the advocate, in whole or in part. The third person might be a relative or

friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation

sued along with one or more of its employees). Because third-party payers frequently have

interests that differ from those of the client, including interests in minimizing the amount spent on

the representation and in learning how the representation is progressing, advocates are prohibited

from accepting or continuing such representations unless the advocate determines that there will

be no interference with the advocate’s independent professional judgment and there is informed

written consent from the client. See also Rule 5.4 (c).

Limiting Liability and Settling Claims

[9] Agreements prospectively limiting an advocate’s liability for malpractice, whether made at the

outset of the representation or at any time when the client is unaware of a claim or potential claim,

are prohibited unless the client is independently represented in making the agreement because

they are likely to undermine competent and diligent representation. Many clients are unable to

evaluate the desirability of making such an agreement before a dispute has arisen, particularly if

they are then represented by the advocate seeking the agreement. This paragraph does not

prohibit an agreement in accordance with Rule 1.2 that defines the scope of representation,

although a definition of scope that makes the obligations of representation misleading may be

deemed an attempt to limit liability.

[10] Agreements settling a claim or a potential claim for malpractice are not prohibited by this

Rule. Nevertheless, the Rule requires that the advocate must first advise such a person in writing

of the appropriateness of independent representation in connection with such a settlement and

give the client or former client a reasonable opportunity to find and consult independent counsel.

Rule 1.9 Duties to Former Clients

(a) An advocate who has formerly represented a client in a matter shall not thereafter represent

another person in the same or a substantially related matter in which that person's interests are

materially adverse to the interests of the former client unless the former client gives informed

consent, confirmed in writing.

(b) An advocate shall not knowingly represent a person in the same or a substantially related matter

in which a firm with which the advocate formerly was associated had previously represented a

client

(1) whose interests are materially adverse to that person; and

(2) about whom the advocate had acquired actual information protected by Rules 1.6 and

1.9(c) that is material to the matter;

unless the former client gives informed consent, confirmed in writing.

(c) An advocate who has formerly represented a client in a matter or whose present or former firm

has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client

except as these Rules would permit or require with respect to a client, or when the

information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or

require with respect to a client.

Rule 1.9 Duties to Former Clients - Comment

[1] After termination of a client-advocate relationship, an advocate has certain continuing duties

with respect to confidentiality and conflicts of interest and thus may not represent another client

except in conformity with this Rule.

[2] The scope of the “matter” for purposes of this Rule may depend on the facts of a particular

situation or transaction. The advocate’s involvement in a matter can also be a question of degree.

For example, an advocate who repeatedly handled a type of problem for a former client may not

be precluded from later representing another client in a factually distinct problem of that type,

even though the subsequent representation involves a position adverse to the prior client.

[2] Matters are "substantially related" for purposes of this Rule if they involve the same

transaction or legal dispute or if there otherwise is a substantial risk that confidential factual

information obtained in the prior representation would materially advance the client's position in

the subsequent matter. For example, an advocate who has represented a businessperson and

learned extensive private financial information about that person may not then represent that

person's spouse in seeking a divorce.

Advocates Moving Between Firms and/or Departments

[3] When advocates have been associated within a department and/or firm but then end their

association, the question of whether an advocate should undertake representation may involve

several competing considerations. The client previously represented by the former firm must be

reasonably assured that the principle of loyalty to the client is not compromised. However, the

Rule should not be so broadly applied as to preclude other persons from having a reasonable

choice of legal counsel. Finally, application of the Rule should not unreasonably hamper

advocates from forming new associations and taking on new clients after having left a previous

association. Application of paragraph (b) depends on a situation's particular facts, aided by

reasonable inferences, deductions or working presumptions about the way in which advocates

work together. In such an inquiry, the burden of proof should rest upon the firm whose

disqualification is sought.

Rule 1.10 Imputation of Conflicts of Interest: General Rule for Advocate with a Firm

(a) While advocates are associated in a firm (not including SRP-MIC departments addressed in

Rule 1.11), none of them shall knowingly represent a client when any one of them practicing alone

would be prohibited from doing so by Rules 1.7 or 1.9, unless

(1) the prohibition is based on a personal interest of the disqualified advocate and does not

present a significant risk of materially limiting the representation of the client by the

remaining advocates in the firm; or

(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified

advocate’s association with a prior firm, and

(i) the disqualified advocate is timely screened from any participation in the matter

and is apportioned no part of the fee therefrom;

(ii) written notice is promptly given to any affected former client to enable the

former client to review compliance with the provisions of this Rule, which shall

include a description of the screened advocate’s prior representation, a statement

that that the client’s material confidential information has not been disclosed or

used in violation of the Rule, a description of the screening procedures employed;

a statement of the firm’s and of the screened advocates compliance with these

Rules; a statement that review may be available before a tribunal; and an agreement

by the firm to respond promptly to any written inquiries or objections by the former

client about the screening procedures; and

(iii) certifications of compliance with these Rules and with the screening procedures

are provided to the former client by the screened advocate and by a partner of the

firm, at reasonable intervals upon the former client's written request and upon

termination of the screening procedures.

(b) When an advocate has terminated an association with a firm, the advocates’ former firm is not

prohibited from thereafter representing a person with interests materially adverse to those of a

client represented by the formerly associated advocate and not currently represented by the firm,

unless:

(1) the matter is the same or substantially related to that in which the formerly associated

advocate represented the client; and

(2) any advocate remaining in the firm has information protected by Rules 1.6 and 1.9(c)

that is material to the matter. If the only such information is contained in documents or

electronically stored information maintained by the firm, and the firm adopts screening

procedures that are reasonably adequate to prevent access to such documents or

electronically stored information by the remaining advocates, those remaining advocates

will not be considered to have protected information within the meaning of this Rule.

(c) A disqualification prescribed by this rule may be waived by the affected client under the

conditions stated in Rule 1.7.

(d) The disqualification of an advocate associated in a firm with former or current government

advocates is governed by Rule 1.11.

Rule 1.10 Imputation of Conflicts of Interest: General Rule for Advocate with a Firm Comment

Definition of “Firm”

[1] See Rule 1.0(d).

Principles of Imputed Disqualification

[2] The Rule operates to permit a firm, under certain circumstances, to represent a person with

interests directly adverse to those of a client represented by an advocate who formerly was

associated with the firm. The Rule applies regardless of when the formerly associated advocate

represented the client. The Rule in paragraph (a) does not prohibit representation by others in the

firm where the person prohibited from involvement in a matter is a non-advocate, such as a

paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the advocate is

prohibited from acting because of events before the person became an advocate, for example, work

that the person did as a law student. Such persons, however, ordinarily must be screened from any

personal participation in the matter to avoid communication to others in the firm of confidential

information that both the non-advocates and the firm have a legal duty to protect.

[3] The notice required by paragraph (a)(2)(ii) is not a request for a waiver. The recipient of such

a notice is not empowered to prohibit the representation at issue but is only given an opportunity

to question or object to, if appropriate, the means by which a screen is implemented. The notice is

intended to enable the former client to evaluate and comment upon the effectiveness of the

screening procedures.

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

Employees

(a) Except as law may otherwise expressly permit, an advocate who has formerly served as a public

officer or employee of the government is subject to Rule 1.9 and shall not otherwise represent a

client in connection with a matter in which the advocate participated personally and substantially

as a public officer or employee, unless the appropriate government agency gives its written,

informed consent to the representation.

(b) When an advocate is disqualified from representation under paragraph (a), no advocate in a

department or firm with which that advocate is associated may knowingly undertake or continue

representation in such a matter unless:

(1) the disqualified advocate is timely screened from any participation in the matter and is

apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate SRP-MIC department to enable it to

ascertain compliance with the provisions of this Rule.

(c) Except as law may otherwise expressly permit, an advocate having information that the

advocate knows is confidential government information about a person may not represent a private

client whose interests are adverse to that person in a matter in which the information could be used

to the material disadvantage of that person. As used in this Rule, the term "confidential government

information" means information that has been obtained under governmental authority and which,

at the time this Rule is applied, the government is prohibited by Community policy from disclosing

to the public or has a legal privilege not to disclose and which is not otherwise available to the

public. A department or firm with which that advocate is associated may undertake or continue

representation in the matter only if the disqualified advocate is timely screened from any

participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, an advocate currently serving as a public officer

or employee is subject to Rules 1.7 and 1.9 and shall not:

(1) participate in a matter in which the advocate participated personally and

substantially while in private practice or nongovernmental employment, unless the

appropriate government agency gives its written informed consent; or

(2) negotiate for private employment with any person who is involved as a party or

as advocate for a party in a matter in which the advocate is participating personally

and substantially.

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

Employees - Comment

[1] An advocate representing an SRP-MIC department or agency, whether employed or specially

retained by SRP-MIC is subject to these Rules, including the prohibition against concurrent

conflicts of interests stated in Rule 1.7 and the protections afforded former clients in Rule 1.9.

[2] This Rule prohibits an advocate from exploiting public office for the advantage of a private

client. It is a counterpart of Rule 1.10(b), which applies to advocates moving from one firm to

another. For example, an advocate who has pursued a claim on behalf of the government may not

pursue the same claim on behalf of a later private client after the advocate has left government

service, except when authorized to do so by the government agency under paragraph (a).

[3] This Rule represents a balancing of interests. An advocate should not be in a position where

benefit to a client might affect performance of the advocate's professional functions on behalf of

the government. Likewise, a client should not gain an unfair advantage because of an advocate’s

access to confidential government information about the client's adversary obtainable only

through the advocate's government service. The rules governing advocates presently or formerly

employed by a government agency should not be so restrictive, however, as to inhibit transfer of

employment to and from the government. The provisions in paragraphs (a), (b), and (d) are

necessary to prevent the disqualification rule from imposing too severe a deterrent against

entering public service.

[4] For purposes of paragraph (a)(1) of this Rule, a "matter" may continue in another form. In

determining whether two particular matters are the same, the advocate should consider the extent

to which the matters involve the same basic facts, the same or related parties, and the time elapsed.

[5] An advocate may be subject to the Community Code and policies regarding conflict of interest,

which may limit the extent to which the government agency may give consent under this Rule.

[6] Notice, including a description of the screened advocate's prior representation and of the

screening procedures employed, generally should be given as soon as practicable after the need

for screening becomes apparent.

[7] Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule.

[8] Because of the special problems raised by imputation within an agency, paragraph (d) does

not impute the conflicts of an advocate currently serving as an officer or employee of the

government to other associated government officers or employees, although ordinarily it will be

prudent to screen such advocates.

[9] Paragraph (c) operates only when the advocate in question has actual knowledge of the

information and not with respect to information that merely could be imputed to the advocate.

[10] When an advocate has been employed by one agency and then moves to a second agency, it

may be appropriate to treat that second agency as another client for purposes of this Rule.

[11] Paragraphs (a) and (d) do not prohibit an advocate from jointly representing a private party

and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited

by law.

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

(a) Except as stated in paragraph (d), an advocate shall not represent anyone in connection with a

matter in which the advocate participated personally and substantially as a judge or other

adjudicative officer or law clerk or solicitor to such a person or as an arbitrator, mediator or other

third-party neutral.

(b) An advocate shall not negotiate for employment with any person who is involved as a party or

as advocate for a party in a matter in which the advocate is participating personally and

substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other thirdparty neutral. An advocate serving as a law clerk or paralegal to a judge or other adjudicative

officer may negotiate for employment with a party or advocate involved in a matter in which that

person is participating personally and substantially, but only after the advocate, law clerk or

paralegal has notified the judge or other adjudicative officer.

(c) If an advocate is disqualified by paragraph (a), no advocate in a firm with which that advocate

is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified advocate is timely screened from any participation in the matter and is

apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable

them to ascertain compliance with the provisions of this Rule, including a description of

the particular screening procedures adopted; when they were adopted; a statement by the

personally disqualified advocate and the new firm that the parties’ and tribunal’s material

confidential information has not been disclosed or used in violation of the Rules; and an

agreement by the new firm to respond promptly to any written inquiries or objections by

the parties or the tribunal about the screening procedure; and

(3) the personally disqualified advocate and the new firm reasonably believe that the steps

taken to accomplish the screening of material confidential information will be effective in

preventing such information from being disclosed to the new firm and its client.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not

prohibited from subsequently representing that party.

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

[1] This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies that

a judge who was a member of a multimember Court, and thereafter left judicial office to practice

law, is not prohibited from representing a client in a matter pending in the Court, but in which the

former judge did not participate. The fact that a former judge exercised administrative

responsibility in a Court does not prevent the former judge from acting as an advocate in a matter

where the judge had previously exercised remote or incidental administrative responsibility that

did not affect the merits. The term "adjudicative officer" includes such officials as judges pro

tempore, referees, special masters, hearing officers and advocates who serve as part-time judges.

A part-time judge, judge pro tempore or retired judge recalled to active service, may not act as an

advocate in any proceeding in which he or she served as a judge or in any other proceeding related

thereto.

Rule 1.13. Organization as Client

(a) An advocate employed or retained by an organization represents the organization acting

through its duly authorized constituents.

(b) If an advocate for an organization knows that an officer, employee or other person associated

with the organization is engaged in action, intends to act or refuses to act in a matter related to the

representation that is a violation of a legal obligation to the organization, or a violation of law that

reasonably might be imputed to the organization, and that is likely to result in substantial injury to

the organization, the advocate shall proceed as is reasonably necessary in the best interest of the

organization. Unless the advocate reasonably believes that it is not necessary in the best interest

of the organization to do so, the advocate shall refer the matter to higher authority in the

organization, including, if warranted by the circumstances, to the highest authority that can act on

behalf of the organization as determined by applicable law.

(c) Except as provided in paragraph (d), if

(1) despite the advocate’s efforts in accordance with paragraph (b) the highest authority

that can act on behalf of the organization insists upon or fails to address in a timely and appropriate

manner an action or refusal to act, that is clearly a violation of law, and

(2) the advocate reasonably believes that the violation is reasonably certain to result in

substantial injury to the organization, then the advocate may reveal information relating to the

representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the

advocate reasonably believes necessary to prevent substantial injury to the organization.

(d) Paragraph (c) shall not apply with respect to information relating to an advocate’s

representation of an organization to investigate an alleged violation of law, or to defend the

organization or an officer, employee or other constituent associated with the organization against

a claim arising out of an alleged violation of law.

(e) An advocate who reasonably believes that he or she has been discharged because of the

advocate’s actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances

that require or permit the advocate to take action under either of those paragraphs, shall proceed

as the advocate reasonably believes necessary to assure that the organization's highest authority is

informed of the advocate’s discharge or withdrawal.

(f) In dealing with an organization's directors, officers, employees, members, shareholders or other

constituents, an advocate shall explain the identity of the client when the advocate knows or

reasonably should know that the organization's interests are adverse to those of the constituents

with whom the advocate is dealing.

(g) An advocate representing an organization may also represent any of its directors, officers,

employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If

the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be

given by an appropriate official of the organization other than the individual who is to be

represented, or by the shareholders.

Rule 1.13 Organization as Client – Comment

The Entity as the Client

[1] An organizational client is a legal entity, but it cannot act except through its officers, directors,

employees, shareholders, and other constituents. Officers, directors, employees, and shareholders

are the constituents of the corporate organizational client. The duties defined in this Comment

apply equally to unincorporated associations. "Other constituents" as used in this Comment

means the positions equivalent to officers, directors, employees, and shareholders held by persons

acting for organizational clients that are not corporations.

[2] When one of the constituents of an organizational client communicates with the organization’s

advocate in that person’s organizational capacity, the communication is protected by Rule 1.6.

Thus, by way of example, if an organizational client requests its advocate to investigate allegations

of wrongdoing, interviews made in the course of that investigation between the advocate and the

client’s employees or other constituents are covered by Rule 1.6. This does not mean, however,

that constituents of an organizational client are the clients of the advocate. The advocate may not

disclose to such constituents information relating to the representation except for disclosures

explicitly or impliedly authorized by the organizational client in order to carry out the

representation or as otherwise permitted by Rule 1.6.

[3] When constituents of the organization make decisions for it, the decisions ordinarily must be

accepted by the advocate even if their utility or prudence is doubtful. Decisions concerning policy

and operations, including ones entailing serious risk, are not as such in the advocate’s province.

Paragraph (b) makes clear, however, that when the advocate knows that the organization is likely

to be substantially injured by action of an officer or other constituent that violates a legal

obligation to the organization or is in violation of law that might be imputed to the organization,

the advocate must proceed as is reasonably necessary in the best interest of the organization. As

defined in Rule 1.0(f), knowledge can be inferred from circumstances, and an advocate cannot

ignore the obvious.

[4] In determining how to proceed under paragraph (b), the advocate should give due

consideration to the seriousness of the violation and its consequences, the responsibility in the

organization and the apparent motivation of the person involved, the policies of the organization

concerning such matters, and any other relevant considerations. Ordinarily, referral to a higher

authority would be necessary. In some circumstances, however, it may be appropriate for the

advocate to ask the constituent to reconsider the matter; for example, if the circumstances involve

a constituent’s innocent misunderstanding of law and subsequent acceptance of the advocate’s

advice, the advocate may reasonably conclude that the best interest of the organization does not

require that the matter be referred to higher authority. If a constituent persists in conduct contrary

to the advocate’s advice, it will be necessary for the advocate to take steps to have the matter

reviewed by a higher authority in the organization. If the matter is of sufficient seriousness and

importance or urgency to the organization, referral to higher authority in the organization may be

necessary even if the advocate has not communicated with the constituent. Any measures taken

should, to the extent practicable, minimize the risk of revealing information relating to the

representation outside the organization. Even in circumstances where an advocate is not

obligated by Rule 1.13 to proceed, an advocate may bring to the attention of an organizational

client, including its highest authority, matters that the advocate reasonably believes to be of

sufficient importance to warrant doing so in the best interests of the organization.

[5] Paragraph (b) also makes clear that when it is reasonably necessary to enable the organization

to address the matter in a timely and appropriate manner, the advocate must refer the matter to

higher authority, including, if warranted by the circumstances, the highest authority that can act

on behalf of the organization under applicable law. The organization's highest authority to whom

a matter may be referred ordinarily will be the board of directors or similar governing body.

However, applicable law may prescribe that under certain conditions the highest authority reposes

elsewhere, for example, in the independent directors of a corporation.

Relation to Other Rules

[6] The authority and responsibility provided in this Rule are concurrent with the authority and

responsibility provided in other Rules. In particular, this Rule does not limit or expand the

advocate’s responsibility under Rules 1.8, 1.16, 3.3 or 4.1. Paragraph (c) of this Rule

supplements Rule 1.6(d) by providing an additional basis upon which the advocate may reveal

information relating to the representation, but does not modify, restrict, or limit the provisions of

Rule 1.6(d)(1)-(5). Under paragraph (c) the advocate may reveal such information only when

the organization's highest authority insists upon or fails to address threatened or ongoing action

that is clearly a violation of law, and then only to the extent the advocate reasonably believes

necessary to prevent reasonably certain substantial injury to the organization. It is not

necessary that the advocate’s services be used in furtherance of the violation, but it is required

that the matter be related to the advocate’s representation of the organization. If the advocate’s

services are being used by an organization to further a crime or fraud by the organization. Rules

1.6(d)(1) and 1.6(d)(2) may permit the advocate to disclose confidential information. In such

circumstances Rule 1.2(d) may also be applicable, in which event, withdrawal from the

representation under Rule 1.16(a)(1) may be required.

[7] Paragraph (d) makes clear that the authority of an advocate to disclose information relating

to a representation in circumstances described in paragraph (c) does not apply with respect to

information relating to an advocate’s engagement by an organization to investigate an alleged

violation of law or to defend the organization or an officer, employee or other person associated

with the organization against a claim arising out of an alleged violation of law. This is

necessary in order to enable organizational clients to enjoy the full benefits of legal counsel in

conducting an investigation or defending against a claim.

[8] An advocate who reasonably believes that he or she has been discharged because of the

advocate’s actions taken pursuant to paragraph (b) or (c), or who withdraws in circumstances

that require or permit the advocate to take action under either of these paragraphs, must

proceed as the advocate reasonably believes necessary to assure that the organization's highest

authority is informed of the advocate’s discharge or withdrawal.

Government Agency

[9] The duty defined in this Rule applies to governmental organizations. Defining precisely the

identity of the client and prescribing the resulting obligations of advocates may be more difficult

in the government context. See Scope [18]. Although in some circumstances the client may be a

specific agency, it may also be a branch of government, such as the executive branch, or the

government as a whole. For example, if the action or failure to act involves the head of a

bureau, either the department of which the bureau is a part, or the relevant branch of

government, may be the client for purposes of this Rule. Moreover, in a matter involving the

conduct of government officials, a government advocate may have authority to question such

conduct more extensively than that of an advocate for a private organization in similar

circumstances. Thus, when the client is a governmental organization, a different balance may be

appropriate between maintaining confidentiality and assuring that the wrongful act is prevented

or rectified, for public business is involved. In addition, duties of advocates employed by the

government may be defined by statutes and regulation. This Rule does not limit that authority.

See Scope. Government advocates also may have authority to represent the "public interest" in

circumstances where a private advocate would not be authorized to do so.

[10] A government advocate may have an obligation to render advice to a government entity and

constituents of a government entity. Normally, the government entity, rather than an individual

constituent, is the client. Some government advocates may also be elected officials or the

employees of elected officials who have statutory obligations to take formal action against

individual constituents under certain circumstances. The government advocate, therefore, must

clearly identify the client and disclose to the individual constituents any limitations that are

imposed on the advocate’s other legal obligations. See ER 1.2(c) and related comments. Further,

where a conflict arises between a constituent and the government entity the advocate represents

or between constituents of the same government entity, the advocate must make the identity of the

client clear to the constituents and determine which constituent has authority to act for the

government entity in each instance.

Clarifying the Advocate’s Role

[11] There are times when the organization's interests may be or become adverse to those of one

or more of its constituents. In such circumstances the advocate should advise any constituent,

whose interest the advocate finds adverse to that of the organization of the conflict or potential

conflict of interest, that the advocate cannot represent such constituent, and that such person

may wish to obtain independent representation. Care must be taken to assure that the individual

understands that, when there is such adversity of interest, the advocate for the organization

cannot provide legal representation for that constituent individual, and that discussions between

the advocate for the organization and the individual may not be privileged.

[12] Whether such a warning should be given by the advocate for the organization to any

constituent individual may turn on the facts of each case.

Dual Representation

[13] Paragraph (e) recognizes that an advocate for an organization may also represent a

principal officer or major shareholder.

Derivative Actions

[14] Under generally prevailing law, the shareholders or members of a corporation may bring

suit to compel the directors to perform their legal obligations in the supervision of the

organization. Members of unincorporated associations have essentially the same right. Such an

action may be brought nominally by the organization, but usually is, in fact, a legal controversy

over management of the organization.

[15] The question can arise whether counsel for the organization may defend such an action.

The proposition that the organization is the advocate’s client does not alone resolve the issue.

Most derivative actions are a normal incident or an organization's affairs, to be defended by the

organization's advocate like any other suit. However, if the claim involves serious charges of

wrongdoing by those in control of the organization, a conflict may arise between the advocate’s

duty to the organization and the advocate’s relationship with the board. In those circumstances,

Rule 1.7 governs who should represent the directors and the organization.

Rule 1.14 Client with Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a

representation is diminished, whether because of minority, mental impairment or for some other

reason, the advocate shall, as far as reasonably possible, maintain a normal client-advocate

relationship with the client.

(b) When the advocate reasonably believes that the client has diminished capacity, either

temporary or prolonged, and the client is at risk of substantial physical, financial or other harm or

poses a risk of such harm to others unless action is taken and the advocate cannot adequately act

in the client's own interest, the advocate may take reasonably necessary protective action, including

consulting with individuals or entities that have the ability to take action to protect the client and,

where permissible, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by

Rule 1.6. When taking protective action pursuant to paragraph (b), the advocate is impliedly

authorized under Rule 1.6(a) to reveal information about the client, but only to the minimum extent

reasonably necessary to protect the client's interests.

Rule 1.14 Client with Diminished Capacity - Comment

[1] When the client is a minor or suffers from a diminished mental capacity, maintaining the

ordinary client-advocate relationship may not be possible in all respects. In particular, a severely

incapacitated person may have limited or no ability legally binding decisions. Other times, a client

with diminished capacity may have the ability to understand, deliberate upon, and reach

conclusions about matters affecting the client's own well-being. For example, children as young

as five or six years of age, and certainly those of ten or twelve, may have opinions that are entitled

to weight in legal proceedings concerning their custody. So also, it is recognized that some persons

of advanced age can be quite capable of handling routine financial matters while needing special

legal protection concerning major transactions.

[2] The fact that a client suffers a disability does not diminish the advocate's obligation to treat

the client with attention, respect and maintain communication.

[3] The client may wish to have family members, legal representatives or other persons participate

in discussions with the advocate. When necessary to assist in the representation, the presence of

such persons generally does not affect the applicability of the advocate-client evidentiary

privilege. Nevertheless, the advocate must keep the client's interests foremost and, except for

protective action authorized under paragraph (b), must look to the client, and not family members,

to make decisions on the client's behalf.

[4] In matters involving a minor, whether the advocate should look to the parents as natural

guardians may depend on the type of proceeding or matter in which the advocate is representing

the minor. If the advocate represents the guardian as distinct from the ward and is aware that the

guardian is acting adversely to the ward's interest, the advocate may have an obligation to prevent

or rectify the guardian's misconduct. See Rule 1.2(d).

[5] In matters involving diminished capacity, competency, and vulnerability, where reasonably

necessary protective action is taken by the advocate, the advocate may continue to represent the

client in separate proceedings resulting from such protective action, except where such

representation is contrary to the client’s interest or the advocate-client relationship.

Taking Protective Action

[6] If an advocate reasonably believes that a client is at risk of substantial physical, financial, or

other harm unless action is taken, and that a normal client-advocate relationship cannot be

maintained as provided in paragraph (a) because the client lacks sufficient capacity to

communicate or to make adequately considered decisions in connection with the representation,

then paragraph (b) permits the advocate to take protective measures deemed necessary. This

option relates to the advocate’s reasoned professional belief as to the client’s capacity. It does not

relate to the advocate’s mere disagreement with the client’s objectives if the client has capacity to

express such objectives upon understanding the relevant facts and circumstances.

(7) Protective actions may include, without limitation, consulting with family members, using a

reconsideration period to permit clarification or improvement of circumstances, using voluntary

surrogate decision making tools such as durable powers of attorney or consulting with support

groups, professional services, adult- or child-protective agencies, or other individuals or entities

that have the ability to protect the client. In taking any protective action, the advocate should be

guided by such factors as the wishes, values, and customs and traditions of the client to the extent

known, the client's best interests and the goals of intruding into the client's decision-making

autonomy to the least extent feasible, maximizing client capacities and respecting the client's

family and social connections.

[8] In determining the extent of the client's diminished capacity, the advocate should consider and

balance such factors as: the client's ability to articulate reasoning leading to a decision, variability

of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a

decision; and the consistency of a decision with the known long-term objectives, commitments,

and values of the client. In appropriate circumstances, the advocate may seek guidance from a

licensed physician or certified psychologist.

[8] If a legal representative has not been appointed, the advocate should consider whether

appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's

interests, balancing these options with the client’s interests in maintaining control over the client’s

decisions and autonomy.

Disclosure of the Client’s Condition

[9] Disclosure of the client's diminished capacity could adversely affect the client's interests. For

example, raising the question of diminished capacity could, in some circumstances, lead to

proceedings for involuntary commitment. If the client has not authorized disclosure, the advocate

should disclose only when disclosure is deemed necessary, with no reasonably available

alternatives. When taking protective action pursuant to paragraph (b), the advocate is impliedly

authorized to make the necessary disclosures, even when the client directs the advocate to the

contrary; however, such disclosures should be made to the minimum extent necessary to achieve

the objective of protecting the client.

Emergency Legal Assistance

[10] In an emergency where the health, safety or a financial interest of a person with seriously

diminished capacity is threatened with imminent and irreparable harm, an advocate may take

legal action on behalf of such a person even though the person is unable to establish a clientadvocate relationship or to make or express considered judgments about the matter, if a person or

another acting in good faith on that person's behalf has consulted with the advocate. Even in such

an emergency, however, the advocate should not act unless the advocate reasonably believes that

the person has no other advocate, agent or other representative available. The advocate should

take legal action on behalf of the person only to the extent reasonably necessary to allay immediate

threats of imminent and irreparable harm. An advocate who undertakes to represent a person in

such an exigent situation has the same duties under these Rules as the advocate would with respect

to a client.

[11] An advocate who acts on behalf of a person with seriously diminished capacity in an

emergency should keep the confidences of the person as if dealing with a client, disclosing such

confidences only to the extent necessary to accomplish the intended protective action. The

advocate should disclose to any tribunal involved and to any other counsel involved the nature of

his or her relationship with the person. The advocate should take steps to regularize the

relationship or implement other protective solutions as soon as possible. Normally, an advocate

would not seek compensation for such emergency actions taken.

Rule 1.15 Safekeeping Property

(a) An advocate shall hold property of clients or third persons that is in an advocate’s possession

in connection with a representation separate from the advocate’s own property. Funds shall be

kept in a separate client trust account maintained in the state where the advocate’s office is situated,

or elsewhere with the consent of the client or third person. Other property shall be identified as

such and appropriately safeguarded. Complete records of such account funds and other property

shall be kept by the advocate and shall be preserved for a period of five years after termination of

the representation.

(b) An advocate may deposit the advocate's own funds in the client trust account only for the

following purposes and only in an amount reasonably estimated to be necessary to fulfill the stated

purposes:

(1) to pay service or other charges or fees imposed by the financial institution that are

related to operation of the trust account; or

(2) to pay any merchant fees or credit card transaction fees or to offset debits for credit card

chargebacks.

(3) Earned fees and funds for reimbursement of costs or expenses may be deposited into a

trust account if they are part of a single credit card transaction that also includes the

payment of advance fees, costs or expenses and the advocate does not use a credit card

processing service that permits the advocate to direct such funds to the advocate’s separate

business account. Any such earned fees and funds for reimbursement of costs or expenses

must be withdrawn from the trust account within a reasonable time after deposit.

(c) An advocate shall deposit into a client trust account legal fees and expenses that have been paid

in advance, to be withdrawn by the advocate only as fees are earned or expenses incurred.

(d) Upon receiving funds or other property in which a client and/or third person has an interest, an

advocate shall promptly notify the client and/or third person. Except as stated in this Rule or

otherwise permitted by law or by agreement between the client, and/or the third person, an

advocate shall promptly deliver to the client and/or third person any funds or other property that

the client and/or third person is entitled to receive and, upon request by the client and/or third

person, shall promptly render a full accounting regarding such property.

(e) When in the course of representation an advocate is in possession of property in which two or

more persons (one of whom may be the advocate) claim interests, the property shall be kept

separate by the advocate. The advocate shall promptly distribute any portion of the property as to

which there are no competing claims. Any other property shall be kept separate until one of the

following occurs:

(1) the parties reach an agreement on the distribution of the property; or

(2) a court order resolves the competing claims; or

(3) distribution is allowed under section (f) below.

(f) Where the competing claims are between a client and a third party, the advocate may provide

written notice to the third party of the advocate’s intent to distribute the property to the client, as

follows:

(1) The notice shall be served on the third party in the manner provided under Rule 5-13

of the Salt River Rules of Civil Procedure and must inform the third party that the advocate

may distribute the property to the client unless the third party initiates legal action and

provides the advocate with written notice of such action within 90 calendar days of the date

of service of the advocate’s notice.

(2) If the advocate does not receive such written notice from the third party within the 90

calendar day period and provided that the disbursement is not prohibited by law or court

order, the advocate may distribute the funds to the client after consulting with the client

regarding the advantages and disadvantages of disbursement of the disputed funds and

obtaining the client’s informed consent to the distribution, confirmed in writing.

(3) If the advocate is notified in writing of an action filed within the 90-calendar day period,

the advocate shall continue to hold the property separate unless and until the parties reach

an agreement on distribution of the property, or a court resolves the matter.

(4) Nothing in this Rule is intended to alter a third party’s substantive rights.

Rule 1.15 Safekeeping Property - Comment

[1] An advocate should hold property of others with the care required of a professional fiduciary.

Securities should be kept in a safe deposit box, except when some other form of safekeeping is

warranted by special circumstances. All property that is the property of clients or third persons,

including prospective clients, must be kept separate from the advocate's business and personal

property and, if monies, in one or more trust accounts. Separate trust accounts may be warranted

when administering estate monies or acting in similar fiduciary capacities. An advocate should

maintain on a current basis books and records in accordance with generally accepted accounting

practice and comply with any recordkeeping rules established by law or Court order.

[2] While normally it is impermissible to commingle the advocate’s own funds with client funds,

paragraph (b) provides that it is permissible when necessary to pay bank service charges on that

account. Accurate records must be kept regarding which part of the funds are the advocate’s

funds.

[3] Advocates often receive funds from which the advocate’s fee will be paid. The advocate is not

required to remit to the client funds that the advocate reasonably believes represent fees owed.

However, an advocate may not hold funds to coerce a client into accepting the advocate’s

contention. The disputed portion of the funds must be kept in a trust account and the advocate

should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed

portion of the funds shall be promptly distributed.

[4] The Rule also recognizes that third parties may have just claims against specific funds or other

property in an advocate’s custody, such as a client’s creditor who has a lien on funds recovered

in a personal injury action. An advocate may have a duty under applicable law to protect such

third-party claims against wrongful interference by the client. In such cases, when the third-party

claim has become a matured legal or equitable claim, and unless distribution is otherwise allowed

under this Rule, the advocate must refuse to surrender the property to the client until the claims

are resolved. In addition to the procedures described in this Rule, when there are substantial

grounds for dispute as to the person entitled to the funds, the advocate may file an action to have

a court resolve the dispute.

[5] The obligation of an advocate under this Rule are independent of those arising from activity

other than rendering legal services. For example, an advocate who serves only as personal

representative of an estate or the trustee of a trust is governed by the applicable law relating to

fiduciaries even though the advocate does not render legal services in the transaction and is not

governed by this Rule.

[6] For purposes of this Rule, “merchant fees” and “credit card transaction fees” are fees that

are deducted from the amount of the credit card charge to pay the company that issued the client’s

credit card, the advocate or the firm’s credit card processing service, and the credit card

association (e.g., Visa, MasterCard), and related charges. Those fees typically include a

percentage of the total amount billed plus a fixed fee, which, unless paid by the advocate or law

firm, reduces the amount that can be credited to the client’s account. A “chargeback” (or reversal

of charges) occurs when a client or former client writes to the credit card company that issued the

credit card used to pay an advocate to dispute the amount that should be paid to the advocate or

law firm. When a client or former client does so, the advocate’s or law firm’s account is debited

an amount equal to the disputed amount, plus a chargeback fee.

[7] Advocates and firms are permitted, and in some cases may be required, to place their own

funds into their trust accounts in very limited circumstances. Advocates and firms that accept

payment by credit card for advance fees, costs or expenses must at all times maintain in their trust

accounts sufficient funds of their own to pay fees and charges related to operation of the trust

account, and to pay all merchant and credit card transaction fees, chargeback fees and related

charges. Advocates and firms must make a reasonable determination of the amount of their own

funds that may appropriately be kept in their trust accounts to pay trust account and credit card

fees and charges. Advocates and firms that use credit card processing services that debit all

chargebacks and credit card fees and charges from an operating or business account are not

required to maintain their own funds in their trust accounts to cover those charges, since no client

or third-party funds will be at risk due to debits from the trust account.

[8] Paragraph (f) allows an advocate to distribute funds or property in the advocate’s possession

after providing notice to third persons known to claim an interest. Notice under paragraph (f)

must be sufficient to allow the third person to take appropriate action to protect its interests.

Although there is no one form of notice that will be acceptable, the notice should generally include

at least the following: (a) a description of the funds or property in the advocate’s possession; (b)

the name of the client claiming an interest in the funds and other information reasonably available

to the advocate that would allow the third person to identify the claim or interest; (c) a mailing

address, telephone number, and email address where the third party can provide notice to the

advocate of the commencement of an action asserting an interest in the funds or property; and (d)

the proposed distribution of the funds or property.

[9] Apart from their ethical considerations, advocates may have legal obligations to safeguard

third-party funds under applicable case and the Community Code. The notice provisions of

paragraph (f) do not alter an advocate’s legal obligations and duties to third persons with respect

to funds or property in the advocate’s possession. An advocate who proposes to distribute funds

under this paragraph should carefully safeguard funds in which third persons claim an interest,

which may expose the advocate or client to a risk of civil or other liability even if the notice

provisions of paragraph (f) are satisfied.

[10] Before making any distribution of funds or property pursuant to paragraph (f), an advocate

should explain to the client that the client may remain responsible to satisfy valid claims of third

persons, and that the third person’s failure to commence an action within the 90-day period of

paragraph (f) will not by itself operate to waive, reduce or extinguish the third person’s claims, if

any, against the client or the funds or property received by the client. Before making any

distribution under paragraph (f), the advocate must obtain the client’s informed consent,

confirmed in writing, to the distribution.

Rule 1.16 Declining or Terminating Representation

(a) Except as stated in paragraph (c), an advocate shall not represent a client or, where

representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of these Rules or other law;

(2) the advocate’s physical or mental condition materially impairs the advocate’s ability to

represent the client; or

(3) the advocate is discharged.

(b) Except as stated in paragraph (c), an advocate may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the

client;

(2) the client insists on undertaking, but has not yet undertaken, a course of action involving

the advocate’s services that the advocate reasonably believes is criminal or fraudulent;

(3) the client has used the advocate’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the advocate considers repugnant or with which

the advocate has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the advocate regarding the

advocate’s services and has been given reasonable warning that the advocate will withdraw

unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the advocate or has

been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

(c) An advocate must comply with applicable law requiring notice to or permission of a Court

when terminating a representation. When ordered to do so by a Court, an advocate shall continue

representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, an advocate shall take steps to the extent reasonably

practicable to protect a client's interests, such as giving reasonable notice to the client, allowing

time for employment of other counsel, surrendering original documents and property to which the

client is entitled and refunding any advance payment of fee or expense that has not been earned.

Upon the client’s request, the advocate shall provide the client with copies of all the client’s

documents, and all documents reflecting work performed for the client. The advocate may retain

documents reflecting work performed for the client to the extent permitted by other law only if

retaining them would not prejudice the client’s rights.

Rule 1.16 Declining or Terminating Representation - Comment

[1] Ordinarily, a representation in a matter is completed when the agreed-upon assistance has

been concluded. If an advocate’s scope of representation is limited to a specific matter, the

relationship ends when the matter has been resolved and the relationship has been terminated.

See Rule 1.15. When an advocate handles a matter that produces a result adverse to the client

and the advocate and client have not previously agreed that the advocate will handle the matter

on appeal, the advocate must discuss the possibility of appeal with the client, including advising

the client in writing of time limitations for an appeal, before ending the representation. If the

advocate agreed to handle the appeal when stating to the client the scope of representation, then

the advocate should continue the representation for the appeal.

Mandatory Withdrawal

[2] When an advocate has been appointed to represent a client, withdrawal ordinarily requires

approval of the court. Similarly, court approval or notice to the court is often required by

applicable law before an advocate withdraws from pending litigation if the advocate has entered

an appearance in the matter on behalf of the client. Difficulty may be encountered if withdrawal

is based on the client’s demand that the advocate engage in unprofessional conduct. Though the

court may request an explanation for the withdrawal, the advocate may be bound to keep

confidential the facts that would constitute such an explanation. The advocate’s statement that

professional considerations require termination of the representation ordinarily should be

accepted as sufficient.

Discharge

[3] A client has a right to discharge an advocate at any time, with or without cause, subject to the

client’s liability for payment for an advocate’s services.

[4] Whether a client can discharge appointed counsel may depend on applicable law. A client

seeking to discharge appointed counsel should be given a full explanation of the consequences of

such an action. These consequences may include a decision by the appointing or referring

authority that new counsel is unjustified or that new counsel would be at the client’s expense or

that the client could represent himself/herself.

[5] If the client has severely diminished capacity, the client may lack the legal capacity to

discharge the advocate, and in any event the discharge may be seriously adverse to the client’s

interests. The advocate should make special effort to help the client consider the consequences

and may take reasonably necessary protective action as provided in Rule 1.14.

Assisting the Client Upon Withdrawal

[6] Ordinarily, at the close of representation, the client is entitled to the following documents

(without limitation): pleadings, legal documents, evidence, discovery, legal research, work

product, transcripts, correspondence, drafts, but not internal practice management memoranda.

Advocates should inform a client if the advocate retained original instruments, such as wills.

Document retention policies should be disclosed to the client, preferably in writing and at the

beginning of the relationship. An advocate shall not charge a client for the cost of copying any

documents unless the client already has received one copy of them. The advocate may deliver

documents electronically to which the client is entitled, provided the electronic format is of

common use and the client can access the documents without expense to the client.

[7] Even if the client has discharged the advocate, the advocate must take all reasonable steps to

avoid prejudice to the rights of the client.

Rule 1.17 Sale of Law Practice

RESERVED.

Rule 1.18 Duties to Prospective Client

(a) A person who discusses with an advocate the possibility of forming a client-advocate

relationship with respect to a matter is a prospective client.

(b) Even when no client-advocate relationship is formed, an advocate who has had discussions

with a prospective client shall not use or reveal information learned in those discussions, except

as would be permitted by these Rules with respect to information of a former client.

(c) An advocate subject to paragraph (b) shall not represent a client with interests materially

adverse to those of a prospective client in the same or a substantially related matter if the advocate

received information from the prospective client that could be significantly harmful to that person

in the matter, except as provided in paragraph (d). If an advocate is disqualified from representation

under this paragraph, no advocate in a department or firm with which that advocate is associated

may knowingly undertake or continue representation in such a matter, except as provided in

paragraph (d).

(d) When the advocate has received disqualifying information as defined in paragraph (c),

representation is permissible if:

(1) both the affected client and the prospective client have given informed written consent,

or:

(2) the advocate who received the information took reasonable measures to avoid exposure

to more disqualifying information than was reasonably necessary to determine whether to

represent the prospective client; and

(i) the disqualified advocate is timely screened from any participation in the matter

and is apportioned no part of the fee therefrom; and

(ii) written notice is promptly given to the prospective client, including a

description of the particular screening procedures adopted; when they were

adopted; a statement by the personally disqualified advocate and the new firm that

the prospective client's material confidential information has not been disclosed or

used in violation of the Rules; and an agreement by the new firm to respond

promptly to any written inquiries or objections by the prospective client about the

screening procedure; and

(iii) the personally disqualified advocate and the partners of the new firm

reasonably believe that the steps taken to accomplish the screening of material

confidential information will be effective in preventing such information from

being disclosed to the new firm and its client.

Rule 1.18 Duties to Prospective Client - Comment

[1] Prospective clients receive some of the protection afforded clients, but not all, due to the fact

that a prospective client reveals information to the advocate during the initial consultation prior

to formation of a client-advocate relationship. However, a person who communicates information

unilaterally to an advocate, without any reasonable expectation that the advocate is willing to

discuss the possibility of forming a client-advocate relationship, is not considered a “prospective

client.”

[2] In order to avoid acquiring disqualifying information from a prospective client, an advocate

considering whether or not to undertake a new matter should limit the initial interview to only

such information as reasonably appears necessary for that purpose. Where the information

indicates that a conflict of interest or other reason for non-representation exists, the advocate

should so inform the prospective client or decline the representation. If the prospective client

wishes to retain the advocate, and if consent is possible under Rule 1.7, then consent from all

affected present and former clients must be obtained before accepting the representation.

[3] An advocate may condition conversations with a prospective client on the person’s informed

written consent that no information disclosed during the consultation will prohibit the advocate

from representing a different client in the matter. If the agreement expressly so provides, the

prospective client may also consent to the advocate’s subsequent use of information received from

the prospective client. Even in the absence of an agreement under paragraph (c), the advocate is

not prohibited from representing a client with interests adverse to those of the prospective client

in the same or a substantially related matter unless the advocate has received from the prospective

client information that could be significantly harmful if used against the prospective client in the

matter.

[4] Under paragraph (c), the prohibition in this Rule is imputed to other advocates as provided in

Rule 1.10, but, under paragraph (d), imputation may be avoided if the advocate obtains the

informed consent, confirmed in writing, of both the prospective and affected clients. In the

alternative, imputation may be avoided if all disqualified advocates are timely screened and

written notice is promptly given to the prospective client. Paragraph (d)(1) does not prohibit the

screened advocate from receiving a salary or partnership share established by prior independent

agreement, but the advocate may not receive compensation directly related to the matter in which

the advocate is disqualified.

[5] Notice, including a general description of the subject matter about which the advocate was

consulted, and of the screening procedures employed, generally should be documented as soon as

practicable after the need for screening becomes apparent.

Counselor

Rule 2.1 Advisor

In representing a client, an advocate shall exercise independent professional judgment and provide

candid advice. When providing advice, an advocate may refer not only to law but to other

considerations that may be relevant to the client’s situation, including cultural considerations.

Rule 2.1 Advisor – Comment

Scope of Advice

[1] A client is entitled to straightforward advice expressing the advocate’s honest assessment, even

if the client decides on the client’s lawful objectives. An advocate should not be deterred from

giving candid advice by the prospect that the advice will be unpleasant to the client.

[2] Although advice consisting of legal considerations usually are of value to a client, an advocate

should not hesitate to also advise a client about practical considerations with a client, such as cost

or effects on other people. A client may expressly or impliedly ask an advocate for purely technical

advice. When such a request is made by a client experienced in legal matters, an advocate may

accept it at face value. When such a request is made by a client inexperienced in legal matters,

however, the advocate’s responsibility as advisor may include indicating that factors other than

strictly legal considerations may be involved.

[3] Matters that go beyond strictly legal questions may also be in the domain of another profession.

Family matters can involve problems within the professional competence of psychiatry, clinical

psychology, or social work; business matters can involve problems within the competence of the

accounting profession or of financial specialists. If consultation with a professional in another

field reasonably would assist a client in the client’s decision making, the advocate should make

such a recommendation. At the same time, an advocate’s advice may consist of recommending a

course of action in the face of conflicting expert recommendations.

Offering Advice

[4] An advocate ordinarily has no duty to give advice that the client has indicated is unwanted,

but an advocate may initiate advice to a client when doing so appears to be in the client's interest.

For example, when an advocate knows that a client proposes a course of action that appears likely

to result in substantial adverse legal consequences to the client, Rule 1.4 may require that the

advocate offer advice if the client's proposed course of action is related to the representation.

Similarly, when a matter is likely to involve litigation, Rule 1.4 may require the advocate to inform

the client of the costs of potential litigation and of forms of dispute resolution that might constitute

reasonable alternatives to litigation.

Rule 2.2

RESERVED.

Rule 2.3 Evaluation for Use by Third Persons

(a) An advocate may provide an evaluation of a matter affecting a client for the use of a third party

if the advocate reasonably believes that creation and provision of the evaluation is compatible with

other aspects of the advocate’s relationship with the client.

(b) When the advocate knows or reasonably should know that the evaluation is likely to affect the

client's interests materially and adversely, the advocate shall not provide the evaluation unless the

client gives informed written consent.

(c) Except as disclosure is authorized in connection with a report of an evaluation, information

relating to the evaluation is otherwise protected by Rule 1.6.

Rule 2.3 Evaluation for Use by Third Persons - Comment

Definition

[1] An evaluation may be performed at the client's direction or when impliedly authorized in order

to carry out the representation. See Rule 1.2.

[2] A legal evaluation should be distinguished from an investigation of a person with whom the

advocate does not have a client-advocate relationship. For example, an advocate retained by a

purchaser to analyze a vendor's title to property does not have a client-advocate relationship with

the vendor. The question concerns whether the advocate is retained by the person whose affairs

are being examined. When the advocate is retained by such a person, the general rules concerning

loyalty to client and preservation of confidences apply. Such rules do not apply if the advocate is

retained by someone else. For this reason, it is essential to identify the person by whom the

advocate is retained. This should be made clear not only to the person under examination, but also

to any others to whom the results are to be made available.

[3] Advocates for the government may be called upon to give a formal opinion on the legality of

contemplated government agency action. In making such an evaluation, the government advocate

acts at the behest of the government as the client, but for purpose of establishing the limits of the

agency's authorized activity. Such an opinion is to be distinguished from confidential legal advice

given agency officials. The critical question is whether the opinion is to be made public.

Duties Owed to Third Person and Client

[4] When an advocates’ evaluation is intended for the information or use of a third person, a legal

duty to that person may or may not arise. That legal question is beyond the scope of this Rule. The

advocate should advise the client of the implications of the evaluation, particularly the advocate’s

actual or potential responsibilities to third persons. The advocate must also be satisfied as a matter

of professional judgment that making the evaluation is compatible with other functions undertaken

on behalf of the client.

Access to and Disclosure of Information

[5] Information relating to an evaluation is protected by Rule 1.6. Before undertaking an

evaluation, an advocate should consult with the client and discuss whether material disadvantages

could occur if the advocate discloses confidential information through the evaluation and obtain

the client’s informed consent to disclosures. See Rules 1.6 and 1.0(e). Whether an advocate can

undertake an evaluation might depend on whether the client consents to such disclosures, as the

quality of an evaluation depends on the freedom and extent of the investigation upon which it is

based. Ordinarily an advocate should have whatever latitude of investigation seems necessary as

a matter of professional judgment.

Financial Auditors’ Request for Information

[6] When a question concerning the legal situation of a client arises at the instance of the client’s

financial auditor and the question is referred to the client’s advocate, the advocate’s response may

be made in accordance with procedures such as that set forth in the American Bar Association

Statement of Policy Regarding [Advocates’] Responses to Auditors’ Requests for Information,

adopted in 1975.

Rule 2.4 Advocate Serving as Third-Party Neutral

(a) An advocate serves as a third-party neutral when the advocate assists two or more persons who

are not clients of the advocate to reach a resolution of a dispute or other matter that has arisen

between them. Service as a third-party neutral may include service as an arbitrator, a mediator or

in such other capacity as will enable the advocate to assist the parties to resolve the matter.

(b) An advocate serving as a third-party neutral shall inform unrepresented parties that the advocate

is not representing them. When the advocate knows or reasonably should know that a party does

not understand the advocate’s role in the matter, the advocate shall explain the difference between

the advocate’s role as a third-party neutral and an advocate’s role as one who represents a client.

Rule 2.4 Advocate Serving as Third-Party Neutral - Comment

[1] A third-party neutral is a person, such as a mediator, arbitrator or evaluator, who assists the

parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of a

transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator or decision

maker depends on the particular process that is either selected by the parties or mandated by a

court.

[2] In performing this role, the advocate may be subject to court rules or other law that apply

either to third-party neutrals generally or to advocates serving as third-party neutrals. Advocates

serving as third-party neutrals may also be subject to various codes of ethics as applicable by their

licensing jurisdiction. An advocate who serves as a third-party neutral subsequently may be asked

to serve as an advocate representing a client in the same matter. In such scenarios, the advocate

should comply with Rule 1.12.

Advocate

Rule 3.1 Meritorious Claims and Contentions

An advocate shall not bring or continue an action, conduct a defense, assert a position in litigation,

or take an appeal, without a good faith basis in law and fact for doing so that is not frivolous. An

advocate shall not present a claim or defense in litigation that is not warranted under existing law,

unless it can be supported by a good faith and nonfrivolous argument for an extension,

modification, or reversal of existing law. An advocate for the defendant in a criminal proceeding,

or the respondent in a proceeding that could result in incarceration, or involuntary commitment or

confinement, may nevertheless defend the proceeding by requiring that every element of the case

be established.

Rule 3.1 Meritorious Claims and Contentions - Comment

[1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but

also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes

the limits within which an advocate may proceed. However, the law is not always clear and never

is static. Accordingly, in determining the proper scope of advocacy, account should be taken of

the law’s ambiguities and potential for change.

[2] An action is frivolous if the advocate is unable either to make a good faith argument on the

merits of the action taken or to support the action taken by a good faith argument for an extension,

modification or reversal of existing law. The filing of an action or defense or similar action taken

for a client is not frivolous merely because the facts have not first been fully substantiated or

because the advocate expects to develop vital evidence only by discovery. What is required of

advocates, however, is that they inform themselves about the facts of their clients' cases and the

applicable law and determine whether they can make good faith nonfrivolous arguments in support

of their clients' positions. An action is not frivolous if the advocate believes that the client's position

ultimately may not prevail.

[3] The advocate’s obligations under this Rule are subordinate to Tribal or Federal constitutional

law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim

or contention that otherwise would be prohibited by this Rule.

Rule 3.2 Expediting Litigation

An advocate shall make reasonable efforts to expedite litigation consistent with the interests of the

client.

Rule 3.2 Expediting Litigation - Comment

[1] Dilatory practices bring the administration of justice into disrepute. Although there will be

occasions when an advocate may properly seek a postponement for personal reasons, it is not

proper for an advocate to routinely fail to expedite litigation solely for the convenience of the

advocate. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an

opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar

conduct is often tolerated by the bench and bar. The question is whether a competent advocate

acting in good faith would regard the course of action as having some substantial purpose other

than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not

a legitimate interest of the client.

Rule 3.3 Candor Toward the Tribunal

(a) An advocate shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of

material fact or law previously made to the tribunal by the advocate;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to

the advocate to be directly adverse to the position of the client and not disclosed by

opposing counsel; or

(3) offer evidence that the advocate knows to be false. If an advocate, the advocate’s client,

or a witness called by the advocate, has offered material evidence and the advocate comes

to know of its falsity, the advocate shall take reasonable remedial measures, including, if

necessary, disclosure to the tribunal. An advocate may refuse to offer evidence, other than

the testimony of a defendant in a criminal matter that the advocate reasonably believes is

false.

(b) An advocate who represents a client in an adjudicative proceeding and who knows that a person

intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the

proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the

tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding and

apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, an advocate shall inform the tribunal of all material facts known to

the advocate that will enable the tribunal to make an informed decision, whether or not the facts

are adverse.

Rule 3.3 Candor Toward the Tribunal - Comment

[1] This Rule governs the knowing or intentional conduct of an advocate who is representing a

client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of "tribunal." It also

applies when the advocate is representing a client in an ancillary proceeding conducted pursuant

to the tribunal’s adjudicative authority, such as a deposition.

[2] This Rule sets forth the special duties of advocates as officers of the court to avoid conduct

that undermines the integrity of the adjudicative process. An advocate acting as an advocate in an

adjudicative proceeding has an obligation to present the client's case with persuasive force.

Performance of that duty while maintaining confidences of the client, however, is qualified by the

advocate's duty of candor to the tribunal. Consequently, although an advocate in an adversary

proceeding is not required to present an impartial exposition of the law or to vouch for the

evidence submitted in a cause, the advocate must not allow the tribunal to be misled by false

statements of law or fact or evidence that the advocate knows to be false.

Representations by an Advocate

[3] An advocate is responsible for pleadings and other documents prepared for litigation but is

usually not required to have personal knowledge of matters asserted therein, for litigation

documents ordinarily present assertions by the client, or by someone on the client's behalf, and

not assertions by the advocate. Compare Rule 3.1. However, an assertion purporting to be on the

advocate's own knowledge, as in an affidavit by the advocate or in a statement in open court, may

properly be made only when the advocate knows the assertion is true or believes it to be true on

the basis of a reasonably diligent inquiry. There are circumstances where failure to make a

disclosure is the equivalent of an affirmative misrepresentation.

Legal Argument

[4] Legal argument based on a knowingly false representation of law constitutes dishonesty

toward the tribunal. An advocate is not required to make a disinterested exposition of the law but

must recognize the existence of pertinent legal authorities.

Offering Evidence

[5] An advocate does not violate this Rule if the advocate offers the evidence for the purpose of

establishing its falsity.

[6] If an advocate knows that the client intends to testify falsely or wants the advocate to introduce

false evidence, the advocate should seek to persuade the client that the evidence should not be

offered. If the persuasion is ineffective and the advocate continues to represent the client, the

advocate must refuse to offer the false evidence. If only a portion of a witness's testimony will be

false, the advocate may call the witness to testify but may not elicit or otherwise permit the witness

to present the testimony that the advocate knows is false.

[7] The duties stated in paragraphs (a) and (b) apply to all advocates, including defense counsel

in criminal cases.

[8] The prohibition against offering false evidence only applies if the advocate knows that the

evidence is false. An advocate’s reasonable belief that evidence is false does not preclude its

presentation to the trier of fact. An advocate’s knowledge that evidence is false, however, can be

inferred from the circumstances.

Remedial Measures

[9] Having offered material evidence in the belief that it was true, an advocate may subsequently

come to know that the evidence is false. Or, an advocate may be surprised when the advocate’s

client, or another witness called by the advocate, offers testimony the advocate knows to be false,

either during the advocate’s direct examination or in response to cross-examination by the

opposing advocate. In such situations or if the advocate knows of the falsity of testimony elicited

from the client during a deposition, the advocate must take reasonable remedial measures. In such

situations, the advocate's proper course is to speak to the client confidentially, advise the client of

the advocate’s duty of candor to the tribunal and seek the client’s cooperation with respect to the

withdrawal or correction of the false statements or evidence. If that fails, the advocate must take

further remedial action. If withdrawal from the representation is not permitted or will not undo

the effect of the false evidence, the advocate must make such disclosure to the tribunal as is

reasonably necessary to remedy the situation, even if doing so requires the advocate to reveal

information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine

what should be done — making a statement about the matter to the trier of fact, ordering a mistrial

or perhaps nothing.

Duration of Obligation

[10] A proceeding has concluded within the meaning of this Rule when a final judgment in the

proceeding has been affirmed on appeal or the time for review has passed.

Ex Parte Proceedings

[11] In any ex parte proceeding, such as an application for a temporary restraining order, there

is no balance of presentation by opposing advocates. The object of an ex parte proceeding is

nevertheless to yield a substantially just result. The judge has an affirmative responsibility to

accord the absent party just consideration. The advocate for the represented party has the

correlative duty to make disclosures of material facts known to the advocate and that the advocate

reasonably believes are necessary to an informed decision.

Rule 3.4 Fairness to Opposing Party and Counsel

An advocate shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal

a document or other material having potential evidentiary value. An advocate shall not counsel or

assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer a bribe or incentive to a

witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based

on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent

effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the advocate does not reasonably believe is relevant or that

will not be supported by admissible evidence, or assert personal knowledge of facts in issue except

when testifying as a witness.

(f) request a person other than a client to refrain from voluntarily giving relevant information to

another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the advocate reasonably believes that the person's interests will not be adversely

affected by refraining from giving such information.

Rule 3.4 Fairness to Opposing Party and Counsel - Comment

[1] The procedure of the adversarial system contemplates that the evidence in a case is to be

organized fairly by the opposing parties. Fair competition in the adversarial system is secured by

prohibitions against destruction or concealment of evidence, improperly influencing witnesses,

obstructive tactics in discovery procedure, and the like.

[2] Documents and other items of evidence are often essential to establish a claim or defense.

Subject to evidentiary privileges, the right of an opposing party, including the government, to

obtain evidence through discovery or subpoena is an important procedural right. The exercise of

that right can be frustrated if relevant material is altered, concealed, or destroyed. For example,

destroying material for purposes of impairing its availability in a pending proceeding or one

whose commencement can be foreseen is a violation of this Rule. Falsifying evidence is also

generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including

electronically stored information.

[3] With regard to paragraph (b), it is not improper to pay a witness's expenses or to compensate

an expert witness on terms permitted by law. It is improper to pay a witness any fee for testifying.

It is improper to pay an expert witness a contingency fee.

[4] Paragraph (f) permits an advocate to advise a client’s employees to refrain from giving

information to another party because the employees may identify their interests with those of the

client.

Rule 3.5 Impartiality and Decorum of the Tribunal

An advocate shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by

law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the advocate a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress, or harassment; or

(d) engage in conduct intended to disrupt a tribunal.

Rule 3.5 Impartiality and Decorum of the Tribunal - Comment

[1] During a proceeding an advocate may not communicate ex parte with persons serving in an

official capacity in the proceeding, such as judges, masters, or jurors, unless authorized to do so

by law or court order.

[2] The advocate’s function is to present evidence and argument so that the cause may be decided

according to law. An advocate may stand firm against abuse by a judge but should avoid

reciprocation; the judge's default is no justification for similar behavior by an advocate. An

advocate can present the cause, protect the record for subsequent review and preserve

professional integrity by patient firmness no less effectively than by hostility or theatrics.

Rule 3.6 Trial Publicity

(a) An advocate who is participating or has participated in the investigation or litigation of a matter

shall not make an out of court statement that the advocate knows or reasonably should know will

be disseminated by means of public communication and will have a substantial likelihood of

materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), and subject to Rule 1.6, an advocate may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity

of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step-in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason

to believe that there exists the likelihood of substantial harm to an individual or to the

public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in

apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of

the investigation.

(c) Notwithstanding paragraph (a), an advocate may make a statement that a reasonable advocate

would believe is required to protect a client from the substantial undue prejudicial effect of recent

publicity not initiated by the advocate or the advocate’s client. A statement made pursuant to this

paragraph shall be subject to Rule 1.6 and limited to such information as is necessary to mitigate

the recent adverse publicity.

(d) No advocate associated in a firm or government agency with an advocate subject to paragraph

(a) shall make a statement prohibited by paragraph (a).

[1] Certain proceedings may be subject to special laws, rules or court orders governing

confidentiality, such as juvenile, family law and mental health proceeding. The Rule applies only

to advocate(s) who are, or who have been involved in the investigation or litigation of a case, and

their associates.

[2] There are certain subjects that are more likely than not to have a material prejudicial effect

on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter,

or any other proceeding that could result in incarceration. These subjects relate to:

(a) the character, credibility, reputation or criminal record of a party, suspect in a criminal

investigation or witness, or the identity of a witness, or the expected testimony of a party

or witness;

(b) in a criminal case or proceeding that could result in incarceration, the possibility of a

plea of guilty to the offense or the existence or contents of any confession, admission, or

statement given by a defendant or suspect or that person's refusal or failure to make a

statement;

(c) the performance or results of any examination or test or the refusal or failure of a

person to submit to an examination or test, or the identity or nature of physical evidence

expected to be presented;

(d) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or

proceeding that could result in incarceration;

(e) information that the advocate knows or reasonably should know is likely to be

inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of

prejudicing an impartial trial; or

(f) the fact that a defendant has been charged with a crime, unless there is included therein

a statement explaining that the charge is merely an accusation, and that the defendant is

presumed innocent until and unless proven guilty.

[3] Another relevant factor in determining prejudice is the nature of the proceeding involved.

Criminal jury trials will be most sensitive to out of court speech. Civil trials may be less sensitive.

Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place

limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different

depending on the type of proceeding.

[4] Finally, out of court statements that might otherwise raise a question under this Rule may be

permissible when they are made in response to statements made publicly by another party, another

party's advocate, or third persons, where a reasonable advocate would believe a public response

is required in order to avoid prejudice to the advocate's client. When prejudicial statements have

been publicly made by others, responsive statements may have the effect of lessening any resulting

adverse impact on the adjudicative proceeding. Such responsive statements should be limited to

contain only suc

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