Rule 1.0. Terminology

« Rule 1.0. »

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

supposed the fact in question to be true. A person’s belief may be inferred

from circumstances.

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

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

the person or a writing that a lawyer promptly transmits to the person

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

of “informed consent.” If it is not feasible to obtain or transmit the writing

at the time the person gives informed consent, then the lawyer must obtain

or transmit it within a reasonable time thereafter.

(c) “Firm” or “law firm” denotes a lawyer or lawyers in a law

partnership, professional corporation, sole proprietorship or other

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

services organization or the legal department of a corporation or other

organization.

(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the

substantive or procedural law of the applicable jurisdiction and has a

purpose to deceive.

(e) “Informed consent” denotes the agreement by a person to a proposed

course of conduct after the lawyer has communicated adequate

information and explanation about the material risks of and reasonably

available alternatives to the proposed course of conduct.

(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the

fact in question. A person’s knowledge may be inferred from

circumstances.

(g) “Partner” denotes a member of a partnership, a shareholder in a law

firm organized as a professional corporation, or a member of an

association authorized to practice law.

(h) “Reasonable” or “reasonably” when used in relation to conduct by a

lawyer denotes the conduct of a reasonably prudent and competent lawyer.

act in question. A person’s knowledge may be inferred from

circumstances.

(g) “Partner” denotes a member of a partnership, a shareholder in a law

firm organized as a professional corporation, or a member of an

association authorized to practice law.

(h) “Reasonable” or “reasonably” when used in relation to conduct by a

lawyer denotes the conduct of a reasonably prudent and competent lawyer.

(i) “Reasonable belief” or “reasonably believes” when used in reference

to a lawyer denotes that the lawyer believes the matter in question and that

the circumstances are such that the belief is reasonable.

(j) “Reasonably should know” when used in reference to a lawyer

denotes that a lawyer of reasonable prudence and competence would

ascertain the matter in question.

(k) “Screened” denotes the isolation of a lawyer from any participation

in a matter through the timely imposition of procedures within a firm that

are reasonably adequate under the circumstances to protect information

that the isolated lawyer is obligated to protect under these Rules or other

law.

(l) “Substantial” when used in reference to degree or extent denotes a

material matter of clear and weighty importance.

(m) “Tribunal” denotes a court, an arbitrator in a binding arbitration

proceeding or a legislative body, administrative agency or other body

acting in an adjudicative capacity. A legislative body, administrative

agency or other body acts in an adjudicative capacity when a neutral

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

parties, will render a binding legal judgment directly affecting a party’s

interests in a particular matter.

roceeding or a legislative body, administrative agency or other body

acting in an adjudicative capacity. A legislative body, administrative

agency or other body acts in an adjudicative capacity when a neutral

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

parties, will render a binding legal judgment directly affecting a party’s

interests in a particular matter.

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

communication or representation, including handwriting, typewriting,

printing, photostating, photography, audio or video recording and electronic

communications. A “signed” writing includes an electronic sound, symbol

or process attached to or logically associated with a writing and executed

or adopted by a person with the intent to sign the writing. (Amended,

effective Mar. 1, 2013.)

COMMENT

[1] 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.

[2] Firm. — Whether two or more lawyers constitute a firm within

paragraph (c) can depend on the specific facts. For example, two

practitioners who share office space and occasionally consult or assist

each other ordinarily would not be regarded as constituting a firm.

However, if they present themselves to the public in a way that suggests

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

regarded as a firm for purposes of the Rules. The terms of any formal

agreement between associated lawyers are relevant in determining whether

they are a firm, as is the fact that they have mutual access to information

concerning the clients they serve

However, if they present themselves to the public in a way that suggests

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

regarded as a firm for purposes of the Rules. The terms of any formal

agreement between associated lawyers are relevant in determining whether

they are a firm, as is the fact that they have mutual access to information

concerning the clients they serve. Furthermore, it is relevant in doubtful

cases to consider the underlying purpose of the Rule that is involved. A

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

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

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

acquired by one lawyer is attributed to another.

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

government, there is ordinarily no question that the members of the

department constitute a firm within the meaning of the Rules of

Professional Conduct. There can be uncertainty, however, as to the identity

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

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

well as the corporation by which the members of the department are

directly employed. A similar question can arise concerning an

unincorporated association and its local affiliates.

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

and legal services organizations. Depending upon the structure of the

organization, the entire organization or different components of it may

constitute a firm or firms for purposes of these Rules.

[5] 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

constitute a firm or firms for purposes of these Rules.

[5] 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.

[6] 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 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

opriate 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.

[7] Obtaining informed consent will usually require an affirmative

response by the client or other person. In general, a lawyer may not

assume consent from a client’s or other person’s silence. Consent may be

inferred, however, from the conduct of a client or other person who has

reasonably adequate information about the matter. A number of Rules

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

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

paragraphs (n) and(b). Other Rules require that a client’s consent be

obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g).

For a definition of “signed,” see paragraph (n).

[8] Screened. — This definition applies to situations where screening of

a personally disqualified lawyer is permitted to remove imputation of a

conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18

agraphs (n) and(b). Other Rules require that a client’s consent be

obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g).

For a definition of “signed,” see paragraph (n).

[8] Screened. — This definition applies to situations where screening of

a personally disqualified lawyer is permitted to remove imputation of a

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

[9] The purpose of screening is to assure the affected parties that

confidential information known by the personally disqualified lawyer

remains protected. The personally disqualified lawyer should acknowledge

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

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

are working on the matter should be informed that the screening is in place

and that they may not communicate with the personally disqualified lawyer

with respect to the matter. Additional screening measures that are

appropriate for the particular matter will depend on the circumstances. To

implement, reinforce and remind all affected lawyers of the presence of

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

procedures as a written undertaking by the screened lawyer to avoid any

communication with other firm personnel and any contact with any firm

files or other information, including information in electronic form,

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

personnel forbidding any communication with the screened lawyer

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

or other information, including information in electronic form, relating to

the matter, and periodic reminders of the screen to the screened lawyer

and all other firm personnel.

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

as soon as practical after a lawyer or law firm knows or reasonably should

know that there is a need for screening.

Cross references

o firm files

or other information, including information in electronic form, relating to

the matter, and periodic reminders of the screen to the screened lawyer

and all other firm personnel.

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

as soon as practical after a lawyer or law firm knows or reasonably should

know that there is a need for screening.

Cross references. — As to the Statement of Principles of Lawyer

Conduct, see Supreme Court Rule 71(b)(ii).

NOTES TO DECISIONS

Knowingly.

Lawyer engaged in knowing misconduct, for which suspension was the

appropriate discipline, by: (1) assisting a suspended lawyer in the

unauthorized practice of law when the lawyer engaged the suspended

lawyer to work on cases without determining the applicable restrictions;

(2) failing to supervise the suspended lawyer adequately; and (3) giving

the suspended lawyer a percentage of a contingency fee that included work

performed both before and after the suspension. In re Martin, 105 A.3d

967 (Del. 2014).

Del. Rules of Prof'l Conduct Rule 1.1