Rule 1.0. Terminology

RULE 1.0: TERMINOLOGY

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

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

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

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

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

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

gives informed consent, then the lawyer must obtain or transmit it within a reasonable time

thereafter.

(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.

f the fact in question. A

person’s knowledge may be inferred from circumstances.

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

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

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

conduct of a reasonably prudent and competent lawyer.

(i) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes

that the lawyer believes the matter in question and that the circumstances are such that the belief

is reasonable.

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

reasonable prudence and competence would ascertain the matter in question.

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

timely imposition of procedures within a firm that are reasonably adequate under the circumstances

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

law.

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

and weighty importance.

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

body, administrative agency or other body acting in an adjudicative capacity. A legislative body,

administrative agency or other body acts in an adjudicative capacity when a neutral official, after

the presentation of evidence or legal argument by a party or parties, will render a binding legal

judgment directly affecting a party’s interests in a particular matter.

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.

(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.

Adopted July 1, 2009, effective January 1, 2010; amended Oct. 15, 2015, eff. Jan. 1, 2016.

Comment

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a written confirmation, if required, 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, and written confirmation is

required, the lawyer may act in reliance on that consent so long as it is confirmed in writing within

a reasonable time thereafter.

Firm

[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the

specific facts. For example, two practitioners who share office space and occasionally consult or

assist each other ordinarily would not be regarded as constituting a firm. However, if they present

themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm,

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

between associated lawyers are relevant in determining whether they are a firm, as is the fact that

they have mutual access to information concerning the clients they serve

firm. However, if they present

themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm,

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

between associated lawyers are relevant in determining whether they are a firm, as is the fact that

they have mutual access to information concerning the clients they serve. Furthermore, it is

relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group

of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not

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

that information acquired by one lawyer is attributed to another.

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

ordinarily no question that the members of the department constitute a firm within the meaning of

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

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

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

department are directly employed. A similar question can arise concerning an unincorporated

association and its local affiliates.

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

organizations. Depending upon the structure of the organization, the entire organization or

different components of it may constitute a firm or firms for purposes of these Rules.

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tment 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.

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Fraud

[5] When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct that is

characterized as such under the substantive or procedural law of the applicable jurisdiction and has

a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure

to apprise another of relevant information. For purposes of these Rules, it is not necessary that

anyone has suffered damages or relied on the misrepresentation or failure to inform.

Informed Consent

[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed

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

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

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

vary according to the Rule involved and the circumstances giving rise to the need to obtain

informed consent. The lawyer must make reasonable efforts to ensure that the client or other person

possesses information reasonably adequate to make an informed decision. Ordinarily, this will

require communication that includes a disclosure of the facts and circumstances giving rise to the

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

advantages and disadvantages of the proposed course of conduct and a discussion of the client’s

or other person’s options and alternatives. In some circumstances it may be appropriate for a

lawyer to advise a client or other person to seek the advice of other counsel

ircumstances giving rise to the

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

advantages and disadvantages of the proposed course of conduct and a discussion of the client’s

or other person’s options and alternatives. In some circumstances it may be appropriate for a

lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not

inform a client or other person of facts or implications already known to the client or other person;

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

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

whether the information and explanation provided are reasonably adequate, relevant factors

include whether the client or other person is experienced in legal matters generally and in making

decisions of the type involved, and whether the client or other person is independently represented

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

explanation than others, and generally a client or other person who is independently represented

by other counsel in giving the consent should be assumed to have given informed consent.

[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. Rule 1.5(f) requires that a person’s consent be confirmed

in writing. 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 Rule

1.5(d)(2) and (d)(5) and Rule 1.8(a) and (g). For a definition of “signed,” see paragraph (n)

reasonably

adequate information about the matter. Rule 1.5(f) requires that a person’s consent be confirmed

in writing. 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 Rule

1.5(d)(2) and (d)(5) and Rule 1.8(a) and (g). For a definition of “signed,” see paragraph (n).

Screened

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

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

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[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

c 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.

Adopted July 1, 2009, effective January 1, 2010; amended Oct. 15, 2015, eff. Jan. 1, 2016; amended

July 6, 2023, eff. immediately.

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