Rule 1.0. Terminology

Terminology

(a) ‘‘Belief’’ or ‘‘believes’’ denotes that the person

involved actually supposed the fact in question to be

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

(b) ‘‘Client’’ or ‘‘person’’ as used in these Rules

includes an authorized representative unless otherwise stated.

(c) ‘‘Confirmed in writing,’’ when used in reference

to the informed consent of a person, denotes

informedconsent that is given inwriting by the person

or a writing that a lawyer promptly transmits to the

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Rule

3.9.

Advocate in Nonadjudicative Proceedings

TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1.

Truthfulness in Statements to Others

4.2.

Communication with Person Represented by Counsel

4.3.

Dealing with Unrepresented Person

4.4.

Respect for Rights of Third Persons

LAW FIRMS AND ASSOCIATIONS

5.1.

Responsibilities of Partners, Managers, and Supervisory Lawyers

5.2.

Responsibilities of a Subordinate Lawyer

5.3.

Responsibilities regarding Nonlawyer Assistance

5.4.

Professional Independence of a Lawyer

5.5.

Unauthorized Practice of Law

5.6.

Restrictions on Right To Practice

PUBLIC SERVICE

6.1.

Pro Bono Publico Service

6.2.

Accepting Appointments

6.3.

Membership in Legal Services Organization

6.4.

Law Reform Activities Affecting Client Interests

6.5.

Nonprofit and Court-Annexed Limited Legal Services

Programs

INFORMATION ABOUT LEGAL SERVICES

7.1.

Communications concerning a Lawyer’s Services

7.2.

Communications concerning a Lawyer’s Services: Specific Rules

7.3.

Solicitation of Clients

7.4.

Communication of Fields of Practice [Repealed]

7.4A.

Certification as Specialist

7.4B.

Legal Specialization Screening Committee

7.4C.

Application by Board or Entity To Certify Lawyers as Specialists

7.5.

Firm Names and Letterheads [Repealed]

MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1.

Bar Admission and Disciplinary Matters

8.2.

Judicial and Legal Officials

8.3.

Reporting Professional Misconduct

8.4.

Misconduct

8.5

s of Practice [Repealed]

7.4A.

Certification as Specialist

7.4B.

Legal Specialization Screening Committee

7.4C.

Application by Board or Entity To Certify Lawyers as Specialists

7.5.

Firm Names and Letterheads [Repealed]

MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1.

Bar Admission and Disciplinary Matters

8.2.

Judicial and Legal Officials

8.3.

Reporting Professional Misconduct

8.4.

Misconduct

8.5.

Disciplinary Authority; Choice of Law

personconfirminganoralinformedconsent.Seesubsection (f) for the definition of ‘‘informed consent.’’ If

it is not feasible to obtain or transmit the writing at

the time the person gives informed consent, then the

lawyer must obtain or transmit it within a reasonable

time thereafter.

(d) ‘‘Firm’’ or ‘‘law firm’’ denotes a lawyeror lawyers

in a law partnership, professional corporation, sole

proprietorshipor otherassociation authorizedto practice law; or lawyers employed in a legal services

organization or the legal department of a corporation

or other organization.

Rule 1.0

(e) ‘‘Fraud’’ or ‘‘fraudulent’’ denotes conduct that

is fraudulent under the substantive or procedural law

of the applicable jurisdiction and has a purpose to

deceive.

(f) ‘‘Informed consent’’ denotes the agreement by

a person to a proposed course of conduct after the

lawyer has communicated adequate information and

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

of conduct.

(g) ‘‘Knowingly,’’ ‘‘known,’’ or ‘‘knows’’ denotes

actual knowledge of the fact in question. A person’s

knowledge may be inferred from circumstances.

(h) ‘‘Partner’’ denotes a member of a partnership, a

shareholder in a law firm organized as a professional

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

(i) ‘‘Reasonable’’ or ‘‘reasonably,’’ when used in

relation to conduct by a lawyer, denotes the conduct

of a reasonably prudent and competent lawyer.

ct in question. A person’s

knowledge may be inferred from circumstances.

(h) ‘‘Partner’’ denotes a member of a partnership, a

shareholder in a law firm organized as a professional

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

(i) ‘‘Reasonable’’ or ‘‘reasonably,’’ when used in

relation to conduct by a lawyer, denotes the conduct

of a reasonably prudent and competent lawyer.

(j) ‘‘Reasonable belief’’ or ‘‘reasonably believes,’’

when used in reference to a lawyer, denotes that

the lawyer believes the matter in question and

that the circumstances are such that the belief

is reasonable.

(k) ‘‘Reasonably should know,’’ when used in

reference to a lawyer, denotes that a lawyer of

reasonable prudence and competence would

ascertain the matter in question.

(l) ‘‘Screened’’ denotes the isolation of a lawyer from any participation in a matter through the

timely imposition of procedures within a firm that

are reasonably adequate under the circumstances to protect information that the isolated

lawyer is obligated to protect under these Rules

or other law.

(m) ‘‘Substantial,’’ when used in reference to

degree or extent denotes a material matter of clear

and weighty importance.

(n) ‘‘Tribunal’’ denotes a court, an arbitrator in

a binding arbitration proceeding or a legislative

body, administrative agency or other body acting

in an adjudicative capacity. A legislative body,

administrative agency or other body acts in an

adjudicative capacity when a neutral official, after

the presentation of evidence or legal argument

by a party or parties, will render a binding legal

judgment directly affecting a party’s interests in a

particular matter.

tion proceeding or a legislative

body, administrative agency or other body acting

in an adjudicative capacity. A legislative body,

administrative agency or other body acts in an

adjudicative capacity when a neutral official, after

the presentation of evidence or legal argument

by a party or parties, will render a binding legal

judgment directly affecting a party’s interests in a

particular matter.

(o) ‘‘Writing’’ or ‘‘written’’ denotes a tangible or

electronic record of a communication or representation, including handwriting, typewriting, printing, photostatting, photography, audio or videorecording

and

electronic

communications.

A

‘‘signed’’ writing includes an electronic sound,

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symbol or process attached to or logically associated with a writing and executed or adopted by a

person with the intent to sign the writing.

COMMENTARY: Confirmed in Writing. If it is not feasible

to obtain or transmit a written confirmation at the time the

client gives informed consent, then the lawyer must obtain or

transmit it within a reasonable time thereafter. If a lawyer has

obtained a client’s informed consent, the lawyer may act in

reliance on that consent so long as it is confirmed in writing

within a reasonable time thereafter.

Firm. Whether two or more lawyers constitute a firm within

subsection (d) can depend on the specific facts. For example,

two practitioners who share office space and occasionally

consult or assist each other ordinarily would not be regarded

as constituting a firm. However, if they present themselves to

the public in a way that suggests that they are a firm or conduct

themselves as a firm, they should be regarded as a firm for

purposes of the Rules. The terms of any formal agreement

between associated lawyers are relevant in determining

whether they are a firm, as is the fact that they have mutual

access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved

themselves as a firm, they should be regarded as a firm for

purposes of the Rules. The terms of any formal agreement

between associated lawyers are relevant in determining

whether they are a firm, as is the fact that they have mutual

access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers

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

same lawyer should not represent opposing parties in litigation,

while it might not be so regarded for purposes of the Rule that

information acquired by one lawyer is attributed to another.

With respect to the law department of an organization,

including the government, there is ordinarily no question that

the members of the department constitute a firm within the

meaning of the Rules of Professional Conduct. There can

be uncertainty, however, as to the identity of the client. For

example, it may not be clear whether the law department of

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

department are directly employed. A similar question can arise

concerning an unincorporated association and its local

affiliates.

Similar questions can also arise with respect to lawyers in

legal aid and legal services organizations. Depending upon

the structure of the organization, the entire organization or

different components of it may constitute a firm or firms for

purposes of these Rules.

Fraud. When used in these Rules, the terms ‘‘fraud’’ or

‘‘fraudulent’’ refer to conduct that is characterized as such

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

merely negligent misrepresentation or negligent failure to

apprise another of relevant information. For purposes of these

Rules, it is not necessary that anyone has suffered damages

or relied on the misrepresentation or failure to inform.

Informed Consent

characterized as such

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

merely negligent misrepresentation or negligent failure to

apprise another of relevant information. For purposes of these

Rules, it is not necessary that anyone has suffered damages

or relied on the misrepresentation or failure to inform.

Informed Consent. Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a

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

circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See,

e.g., Rules 1.2 (c), 1.6 (a) and 1.7 (b). The communication

necessary to obtain such consent will vary according to the

Rule involved and the circumstances giving rise to the need

to obtain informed consent. The lawyer must make reasonable

efforts to ensure that the client or other person possesses

information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes

a disclosure of the facts and circumstances giving rise to the

situation, any explanation reasonably necessary to inform the

Rule 1.1

client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of

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

circumstances it may be appropriate for a lawyer to advise a

client or other person to seek the advice of other counsel. A

lawyer need not inform a client or other person of facts or

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

or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid

e appropriate for a lawyer to advise a

client or other person to seek the advice of other counsel. A

lawyer need not inform a client or other person of facts or

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

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

determining whether the information and explanation provided

are reasonably adequate, relevant factors include whether the

client or other person is experienced in legal matters generally

and in making decisions of the type involved, and whether the

client or other person is independently represented by other

counsel in giving the consent. Normally, such persons need

less information and explanation than others, and generally

a client or other person who is independently represented by

other counsel in giving the consent should be assumed to

have given informed consent.

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

may not assume consent from a client’s or other person’s

silence. Consent may be inferred, however, from the conduct

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

person’s consent be confirmed in writing. See Rules 1.7 (b)

and 1.9 (a). For a definition of ‘‘writing’’ and ‘‘confirmed in

writing,’’ see subsections (o) and (c). Other Rules require that

a client’s consent be obtained in a writing signed by the client.

See, e.g., Rules 1.8 (a) and (g). For a definition of ‘‘signed,’’

see subsection (o).

Screened. The definition of ‘‘screened’’ applies to situations

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

1.10, 1.11, 1.12 or 1.18.

The purpose of screening is to assure the affected parties

that confidential information known by the personally disqualified lawyer remains protected

n of ‘‘signed,’’

see subsection (o).

Screened. The definition of ‘‘screened’’ applies to situations

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

1.10, 1.11, 1.12 or 1.18.

The purpose of screening is to assure the affected parties

that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer shall acknowledge in writing to the client the obligation

not to communicate with any of the other lawyers in the firm

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

who are working on the matter should be informed that the

screening is in place and that they may not communicate with

the personally disqualified lawyer with respect to the matter.

Additional screening measures that are appropriate for the

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

of the screening, it may be appropriate for the firm to undertake

such procedures as a written undertaking by the screened

lawyer to avoid any communication with other firm personnel

and any contact with any firm files or other information, including information in electronic form, relating to the matter, written

notice and instructions to all other firm personnel forbidding

any communication with the screened lawyer relating to the

matter, denial of access by the screened lawyer to firm files

or other information, including information in electronic form,

relating to the matter and periodic reminders of the screen to

the screened lawyer and all other firm personnel.

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

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

CLIENT-LAWYER RELATIONSHIPS