Rule . Supreme Court Order M.R. 3140

M.R. 3140

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

Order entered July 1, 2009.

Effective January 1, 2010, the provisions of the Illinois Rules of Professional

Conduct will be repealed and replaced by the following Illinois Rules of Professional

Conduct of 2010.

ARTICLE VIII. ILLINOIS RULES OF PROFESSIONAL CONDUCT

OF 2010

Preamble: a Lawyer’s Responsibilities

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

an officer of the legal system and a public citizen having special responsibility for the

quality of justice.

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

advisor, a lawyer provides a client with an informed understanding of the client’s

legal rights and obligations and explains their practical implications. As advocate, a

lawyer zealously asserts the client’s position under the rules of the adversary system.

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

requirements of honest dealings with others. As an evaluator, a lawyer acts by

examining a client’s legal affairs and reporting about them to the client or to others.

[3] In addition to these representational functions, a lawyer may serve as a third-

party neutral, a nonrepresentational role helping the parties to resolve a dispute or

other matter. Some of these Rules apply directly to lawyers who are or have served

as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that

apply to lawyers who are not active in the practice of law or to practicing lawyers

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

commits fraud in the conduct of a business is subject to discipline for engaging in

conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.

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

diligent. A lawyer should maintain communication with a client concerning the

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

commits fraud in the conduct of a business is subject to discipline for engaging in

conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.

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

diligent. A lawyer should maintain communication with a client concerning the

representation. A lawyer should keep in confidence information relating to

representation of a client except so far as disclosure is required or permitted by the

Rules of Professional Conduct or other law.

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

professional service to clients and in the lawyer’s business and personal affairs. A

lawyer should use the law’s procedures only for legitimate purposes and not to harass

or intimidate others. A lawyer should demonstrate respect for the legal system and

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

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

also a lawyer’s duty to uphold legal process.

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

the legal system, the administration of justice and the quality of service rendered by

the legal profession. As a member of a learned profession, a lawyer should cultivate

knowledge of the law beyond its use for clients, employ that knowledge in reform of

the law and work to strengthen legal education. In addition, a lawyer should further

the public’s understanding of and confidence in the rule of law and the justice system

because legal institutions in a constitutional democracy depend on popular

participation and support to maintain their authority.

[6A] It is also the responsibility of those licensed as officers of the court to use

their training, experience, and skills to provide services in the public interest for

which compensation may not be available

of and confidence in the rule of law and the justice system

because legal institutions in a constitutional democracy depend on popular

participation and support to maintain their authority.

[6A] It is also the responsibility of those licensed as officers of the court to use

their training, experience, and skills to provide services in the public interest for

which compensation may not be available. It is the responsibility of those who

manage law firms to create an environment that is hospitable to the rendering of a

reasonable amount of uncompensated service by lawyers practicing in that firm.

Service in the public interest may take many forms. These include but are not limited

to pro bono representation of persons unable to pay for legal services and assistance

in the organized bar’s efforts at law reform. An individual lawyer’s efforts in these

areas is evidence of the lawyer’s good character and fitness to practice law, and the

efforts of the bar as a whole are essential to the bar’s maintenance of professionalism.

To help monitor and quantify the extent of these activities, and to encourage an

increase in the delivery of legal services to persons of limited means, Illinois

Supreme Court Rule 756(f) requires disclosure with each lawyer’s annual registration

with the Illinois Attorney Registration and Disciplinary Commission of the

approximate amount of his or her pro bono legal service and the approximate amount

of qualified monetary contributions. See also Committee Comment (June 14, 2006)

to Illinois Supreme Court Rule 756(f).

[6B] The absence from the Illinois Rules of a counterpart to ABA Model Rule 6.1

regarding pro bono and public service should not be interpreted as limiting the

responsibility of lawyers to render uncompensated service in the public interest.

Rather, the rationale is that this responsibility is not appropriate for disciplinary rules

because it is not possible to articulate an appropriate disciplinary standard regarding

pro bono and public service

nterpart to ABA Model Rule 6.1

regarding pro bono and public service should not be interpreted as limiting the

responsibility of lawyers to render uncompensated service in the public interest.

Rather, the rationale is that this responsibility is not appropriate for disciplinary rules

because it is not possible to articulate an appropriate disciplinary standard regarding

pro bono and public service.

[7] Many of a lawyer’s professional responsibilities are prescribed in the Rules

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of Professional Conduct, as well as substantive and procedural law. However, a

lawyer is also guided by personal conscience and the approbation of professional

peers. A lawyer should strive to attain the highest level of skill, to improve the law

and the legal profession and to exemplify the legal profession’s ideals of public

service.

[8] A lawyer’s responsibilities as a representative of clients, an officer of the legal

system and a public citizen are usually harmonious. Thus, when an opposing party

is well represented, a lawyer can be a zealous advocate on behalf of a client and at

the same time assume that justice is being done. So also, a lawyer can be sure that

preserving client confidences ordinarily serves the public interest because people are

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

know their communications will be private.

[9] In the nature of law practice, however, conflicting responsibilities are

encountered. Virtually all difficult ethical problems arise from conflict between a

lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own

interest in remaining an ethical person while earning a satisfactory living. The Rules

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

the framework of these Rules, however, many difficult issues of professional

discretion can arise. Such issues must be resolved through the exercise of sensitive

professional and moral judgment guided by the basic principles underlying the Rules

aining an ethical person while earning a satisfactory living. The Rules

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

the framework of these Rules, however, many difficult issues of professional

discretion can arise. Such issues must be resolved through the exercise of sensitive

professional and moral judgment guided by the basic principles underlying the Rules.

These principles include the lawyer’s obligation zealously to protect and pursue a

client’s legitimate interests, within the bounds of the law, while maintaining a

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

system.

[10] The legal profession is largely self-governing. Although other professions

also have been granted powers of self-government, the legal profession is unique in

this respect because of the close relationship between the profession and the

processes of government and law enforcement. This connection is manifested in the

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

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

the occasion for government regulation is obviated. Self-regulation also helps

maintain the legal profession’s independence from government domination. An

independent legal profession is an important force in preserving government under

law, for abuse of legal authority is more readily challenged by a profession whose

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

[12] The legal profession’s relative autonomy carries with it special

responsibilities of self-government. The profession has a responsibility to assure that

its regulations are conceived in the public interest and not in furtherance of parochial

or self-interested concerns of the bar. Every lawyer is responsible for observance of

the Rules of Professional Conduct. A lawyer should also aid in securing their

observance by other lawyers

utonomy carries with it special

responsibilities of self-government. The profession has a responsibility to assure that

its regulations are conceived in the public interest and not in furtherance of parochial

or self-interested concerns of the bar. Every lawyer is responsible for observance of

the Rules of Professional Conduct. A lawyer should also aid in securing their

observance by other lawyers. Neglect of these responsibilities compromises the

independence of the profession and the public interest which it serves.

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

this role requires an understanding by lawyers of their relationship to our legal

system. The Rules of Professional Conduct, when properly applied, serve to define

that relationship.

SCOPE

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

interpreted with reference to the purposes of legal representation and of the law itself.

Some of the Rules are imperatives, cast in the terms “shall” or “shall not.” These

define proper conduct for purposes of professional discipline. Others, generally cast

in the term “may,” are permissive and define areas under the Rules in which the

lawyer has discretion to exercise professional judgment. No disciplinary action

should be taken when the lawyer chooses not to act or acts within the bounds of such

discretion. Other Rules define the nature of relationships between the lawyer and

others. The Rules are thus partly obligatory and disciplinary and partly constitutive

and descriptive in that they define a lawyer’s professional role. Many of the

Comments use the term “should.” Comments and the Preamble and Scope do not add

obligations to the Rules but provide guidance for practicing in compliance with the

Rules.

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

context includes court rules and statutes relating to matters of licensure, laws

defining specific obligations of lawyers and substantive and procedural law in

general

erm “should.” Comments and the Preamble and Scope do not add

obligations to the Rules but provide guidance for practicing in compliance with the

Rules.

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

context includes court rules and statutes relating to matters of licensure, laws

defining specific obligations of lawyers and substantive and procedural law in

general. The Comments are sometimes used to alert lawyers to their responsibilities

under such other law.

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

primarily upon understanding and voluntary compliance, secondarily upon

reinforcement by peer and public opinion and finally, when necessary, upon

enforcement through disciplinary proceedings. The Rules do not, however, exhaust

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

human activity can be completely defined by legal rules. The Rules simply provide

a framework for the ethical practice of law.

[17] Furthermore, for purposes of determining the lawyer’s authority and

responsibility, principles of substantive law external to these Rules determine

whether a client-lawyer relationship exists. Most of the duties flowing from the

client-lawyer relationship attach only after the client has requested the lawyer to

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

such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to

consider whether a client-lawyer relationship shall be established. See Rule 1.18.

Whether a client-lawyer relationship exists for any specific purpose can depend on

the circumstances and may be a question of fact.

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

common law, the responsibilities of government lawyers may include authority

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h when the lawyer agrees to

consider whether a client-lawyer relationship shall be established. See Rule 1.18.

Whether a client-lawyer relationship exists for any specific purpose can depend on

the circumstances and may be a question of fact.

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

common law, the responsibilities of government lawyers may include authority

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concerning legal matters that ordinarily reposes in the client in private client-lawyer

relationships. For example, a lawyer for a government agency may have authority on

behalf of the government to decide upon settlement or whether to appeal from an

adverse judgment. Such authority in various respects is generally vested in the

attorney general and the state’s attorney in state government, and their federal

counterparts, and the same may be true of other government law officers. Also,

lawyers under the supervision of these officers may be authorized to represent several

government agencies in intragovernmental legal controversies in circumstances

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

not abrogate any such authority.

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

basis for invoking the disciplinary process. The Rules presuppose that disciplinary

assessment of a lawyer’s conduct will be made on the basis of the facts and

circumstances as they existed at the time of the conduct in question and in

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

evidence of the situation. Moreover, the Rules presuppose that whether or not

discipline should be imposed for a violation, and the severity of a sanction, depend

on all the circumstances, such as the willfulness and seriousness of the violation,

extenuating factors and whether there have been previous violations

n

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

evidence of the situation. Moreover, the Rules presuppose that whether or not

discipline should be imposed for a violation, and the severity of a sanction, depend

on all the circumstances, such as the willfulness and seriousness of the violation,

extenuating factors and whether there have been previous violations.

[20] Violation of a Rule should not itself give rise to a cause of action against a

lawyer nor should it create any presumption in such a case that a legal duty has been

breached. In addition, violation of a Rule does not necessarily warrant any other

nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.

The Rules are designed to provide guidance to lawyers and to provide a structure for

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

for civil liability. Furthermore, the purpose of the Rules can be subverted when they

are invoked by opposing parties as procedural weapons. The fact that a Rule is a just

basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the

administration of a disciplinary authority, does not imply that an antagonist in a

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

Nevertheless, since the Rules do establish standards of conduct by lawyers, a

lawyer’s violation of a Rule may be evidence of breach of the applicable standard of

conduct.

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

and purpose of the Rule. The Preamble and this note on Scope provide general

orientation and are instructive and not directive. The Comments are intended as

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

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.0: TERMINOLOGY

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(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.

e general

orientation and are instructive and not directive. The Comments are intended as

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

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.0: TERMINOLOGY

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(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.

isks of and reasonably available alternatives to the proposed

course of conduct.

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

question. A person’s knowledge may be inferred from circumstances.

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

organized as a professional corporation, or a member of an association authorized to

practice law.

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

denotes the conduct of a reasonably prudent and competent lawyer.

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

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

circumstances are such that the belief is reasonable.

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

lawyer of reasonable prudence and competence would ascertain the matter in

question.

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

through the timely imposition of procedures within a firm that are reasonably

adequate under the circumstances to protect information that the isolated lawyer is

obligated to protect under these Rules or other law.

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

matter of clear and weighty importance.

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

or a legislative body, administrative agency or other body acting in an adjudicative

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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.

proceeding

or a legislative body, administrative agency or other body acting in an adjudicative

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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 e-mail. 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.

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

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

unincorporated association and its local affiliates.

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

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

organization or different components of it may constitute a firm or firms for purposes

of these Rules.

Fraud

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

that is characterized as such under the substantive or procedural law of the applicable

jurisdiction and has a purpose to deceive. This does not include merely negligent

misrepresentation or negligent failure to apprise another of relevant information

t may constitute a firm or firms for purposes

of these Rules.

Fraud

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

that is characterized as such under the substantive or procedural law of the applicable

jurisdiction and has a purpose to deceive. This does not include merely negligent

misrepresentation or negligent failure to apprise another of relevant information. For

purposes of these Rules, it is not necessary that anyone has suffered damages or

relied on the misrepresentation or failure to inform.

Informed Consent

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

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

circumstances, a prospective client) before accepting or continuing representation or

pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The

communication necessary to obtain such consent will vary according to the Rule

involved and the circumstances giving rise to the need to obtain informed consent.

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

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

this will require communication that includes a disclosure of the facts and

circumstances giving rise to the situation, any explanation reasonably necessary to

inform the client or other person of the material advantages and disadvantages of the

proposed course of conduct and a discussion of the client’s or other person’s options

and alternatives. In some circumstances it may be appropriate for a lawyer to advise

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

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

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

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

the consent is invalid

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.

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[7] Obtaining informed consent will usually require an affirmative response by

the client or other person. In general, a lawyer may not assume consent from a

client’s or other person’s silence. Consent may be inferred, however, from the

conduct of a client or other person who has reasonably adequate information about

the matter. Rule 1.5(e) 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 Rules 1.5(c), 1.8(a) and (g). For a definition of “signed,” see paragraph

t or other person who has reasonably adequate information about

the matter. Rule 1.5(e) 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 Rules 1.5(c), 1.8(a) and (g). For a definition of “signed,” see paragraph

(n).

Screened

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

disqualified lawyer is permitted to remove imputation of a conflict of interest under

Rules 1.10, 1.11, 1.12 or 1.18.

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

information known by the personally disqualified lawyer remains protected. The

personally disqualified lawyer should acknowledge the obligation not to

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

Similarly, other lawyers in the firm who are working on the matter should be

informed that the screening is in place and that they may not communicate with the

personally disqualified lawyer with respect to the matter. Additional screening

measures that are appropriate for the particular matter will depend on the

circumstances. To implement, reinforce and remind all affected lawyers of the

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

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

communication with other firm personnel and any contact with any firm files or other

materials 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 materials relating

to the matter and periodic reminders of the screen to the screened lawyer and all other

firm personnel

nd any contact with any firm files or other

materials 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 materials 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.

RULE 1.1: COMPETENCE

A lawyer shall provide competent representation to a client. Competent

representation requires the legal knowledge, skill, thoroughness and preparation

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reasonably necessary for the representation.

Adopted July 1, 2009, effective January 1, 2010.

Comment

Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill

in a particular matter, relevant factors include the relative complexity and specialized

nature of the matter, the lawyer’s general experience, the lawyer’s training and

experience in the field in question, the preparation and study the lawyer is able to

give the matter and whether it is feasible to refer the matter to, or associate or consult

with, a lawyer of established competence in the field in question. In many instances,

the required proficiency is that of a general practitioner. Expertise in a particular field

of law may be required in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to

handle legal problems of a type with which the lawyer is unfamiliar. A newly

admitted lawyer can be as competent as a practitioner with long experience. Some

important legal skills, such as the analysis of precedent, the evaluation of evidence

and legal drafting, are required in all legal problems

in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to

handle legal problems of a type with which the lawyer is unfamiliar. A newly

admitted lawyer can be as competent as a practitioner with long experience. Some

important legal skills, such as the analysis of precedent, the evaluation of evidence

and legal drafting, are required in all legal problems. Perhaps the most fundamental

legal skill consists of determining what kind of legal problems a situation may

involve, a skill that necessarily transcends any particular specialized knowledge. A

lawyer can provide adequate representation in a wholly novel field through necessary

study. Competent representation can also be provided through the association of a

lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which

the lawyer does not have the skill ordinarily required where referral to or consultation

or association with another lawyer would be impractical. Even in an emergency,

however, assistance should be limited to that reasonably necessary in the

circumstances, for ill-considered action under emergency conditions can jeopardize

the client’s interest.

[4] A lawyer may accept representation where the requisite level of competence

can be achieved by reasonable preparation. This applies as well to a lawyer who is

appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis

of the factual and legal elements of the problem, and use of methods and procedures

meeting the standards of competent practitioners. It also includes adequate

preparation. The required attention and preparation are determined in part by what

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n unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis

of the factual and legal elements of the problem, and use of methods and procedures

meeting the standards of competent practitioners. It also includes adequate

preparation. The required attention and preparation are determined in part by what

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is at stake; major litigation and complex transactions ordinarily require more

extensive treatment than matters of lesser complexity and consequence. An

agreement between the lawyer and the client regarding the scope of the representation

may limit the matters for which the lawyer is responsible. See Rule 1.2(c).

Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast

of changes in the law and its practice, engage in continuing study and education and

comply with all continuing legal education requirements to which the lawyer is

subject.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF

AUTHORITY BETWEEN CLIENT AND LAWYER

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions

concerning the objectives of representation and, as required by Rule 1.4, shall consult

with the client as to the means by which they are to be pursued. A lawyer may take

such action on behalf of the client as is impliedly authorized to carry out the

representation. A lawyer shall abide by a client’s decision whether to settle a matter.

In a criminal case, the lawyer shall abide by the client’s decision, after consultation

with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the

client will testify.

(b) A lawyer’s representation of a client, including representation by

appointment, does not constitute an endorsement of the client’s political, economic,

social or moral views or activities.

a matter.

In a criminal case, the lawyer shall abide by the client’s decision, after consultation

with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the

client will testify.

(b) A lawyer’s representation of a client, including representation by

appointment, does not constitute an endorsement of the client’s political, economic,

social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is

reasonable under the circumstances and the client gives informed consent.

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

the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal

consequences of any proposed course of conduct with a client and may counsel or

assist a client to make a good-faith effort to determine the validity, scope, meaning

or application of the law.

(e) After accepting employment on behalf of a client, a lawyer shall not thereafter

delegate to another lawyer not in the lawyer’s firm the responsibility for performing

or completing that employment, without the client’s informed consent.

Adopted July 1, 2009, effective January 1, 2010.

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Comment

Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate authority to determine the

purposes to be served by legal representation, within the limits imposed by law and

the lawyer’s professional obligations. The decisions specified in paragraph (a), such

as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1)

for the lawyer’s duty to communicate with the client about such decisions. With

respect to the means by which the client’s objectives are to be pursued, the lawyer

shall consult with the client as required by Rule 1.4(a)(2) and may take such action

as is impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means

to be used to accomplish the client’s objectives

te with the client about such decisions. With

respect to the means by which the client’s objectives are to be pursued, the lawyer

shall consult with the client as required by Rule 1.4(a)(2) and may take such action

as is impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means

to be used to accomplish the client’s objectives. Clients normally defer to the special

knowledge and skill of their lawyer with respect to the means to be used to

accomplish their objectives, particularly with respect to technical, legal and tactical

matters. Conversely, lawyers usually defer to the client regarding such questions as

the expense to be incurred and concern for third persons who might be adversely

affected. Because of the varied nature of the matters about which a lawyer and client

might disagree and because the actions in question may implicate the interests of a

tribunal or other persons, this Rule does not prescribe how such disagreements are

to be resolved. Other law, however, may be applicable and should be consulted by

the lawyer. The lawyer should also consult with the client and seek a mutually

acceptable resolution of the disagreement. If such efforts are unavailing and the

lawyer has a fundamental disagreement with the client, the lawyer may withdraw

from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the

disagreement by discharging the lawyer. See Rule 1.16(a)(3).

[3] At the outset of a representation, the client may authorize the lawyer to take

specific action on the client’s behalf without further consultation. Absent a material

change in circumstances and subject to Rule 1.4, a lawyer may rely on such an

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

[4] In a case in which the client appears to be suffering diminished capacity, the

lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule

1.14

e client’s behalf without further consultation. Absent a material

change in circumstances and subject to Rule 1.4, a lawyer may rely on such an

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

[4] In a case in which the client appears to be suffering diminished capacity, the

lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule

1.14.

Independence from Client’s Views or Activities

[5] Legal representation should not be denied to people who are unable to afford

legal services, or whose cause is controversial or the subject of popular disapproval.

By the same token, representing a client does not constitute approval of the client’s

views or activities.

Agreements Limiting Scope of Representation

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[6] The scope of services to be provided by a lawyer may be limited by agreement

with the client or by the terms under which the lawyer’s services are made available

to the client. When a lawyer has been retained by an insurer to represent an insured,

for example, the representation may be limited to matters related to the insurance

coverage. A limited representation may be appropriate because the client has limited

objectives for the representation. In addition, the terms upon which representation is

undertaken may exclude specific means that might otherwise be used to accomplish

the client’s objectives. Such limitations may exclude actions that the client thinks are

too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit

the representation, the limitation must be reasonable under the circumstances. If, for

example, a client’s objective is limited to securing general information about the law

the client needs in order to handle a common and typically uncomplicated legal

problem, the lawyer and client may agree that the lawyer’s services will be limited

to a brief telephone consultation

substantial latitude to limit

the representation, the limitation must be reasonable under the circumstances. If, for

example, a client’s objective is limited to securing general information about the law

the client needs in order to handle a common and typically uncomplicated legal

problem, the lawyer and client may agree that the lawyer’s services will be limited

to a brief telephone consultation. Such a limitation, however, would not be

reasonable if the time allotted was not sufficient to yield advice upon which the client

could rely. Although an agreement for a limited representation does not exempt a

lawyer from the duty to provide competent representation, the limitation is a factor

to be considered when determining the legal knowledge, skill, thoroughness and

preparation reasonably necessary for the representation. See Rule 1.1.

[8] All agreements concerning a lawyer’s representation of a client must accord

with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and

5.6.

Criminal, Fraudulent and Prohibited Transactions

[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a

client to commit a crime or fraud. This prohibition, however, does not preclude the

lawyer from giving an honest opinion about the actual consequences that appear

likely to result from a client’s conduct. Nor does the fact that a client uses advice in

a course of action that is criminal or fraudulent of itself make a lawyer a party to the

course of action. There is a critical distinction between presenting an analysis of legal

aspects of questionable conduct and recommending the means by which a crime or

fraud might be committed with impunity.

[10] When the client’s course of action has already begun and is continuing, the

lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting

the client, for example, by drafting or delivering documents that the lawyer knows

are fraudulent or by suggesting how the wrongdoing might be concealed

ending the means by which a crime or

fraud might be committed with impunity.

[10] When the client’s course of action has already begun and is continuing, the

lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting

the client, for example, by drafting or delivering documents that the lawyer knows

are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer

may not continue assisting a client in conduct that the lawyer originally supposed was

legally proper but then discovers is criminal or fraudulent. The lawyer must,

therefore, withdraw from the representation of the client in the matter. See Rule

1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary

for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion,

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document, affirmation or the like. See Rule 4.1. In such situations, the lawyer should

also consider whether disclosure of information relating to the representation is

appropriate. See Rule 1.6(b).

[11] Where the client is a fiduciary, the lawyer may be charged with special

obligations in dealings with a beneficiary.

[12] Paragraph (d) applies whether or not the defrauded party is a party to the

transaction. Hence, a lawyer must not participate in a transaction to effectuate

criminal or fraudulent avoidance of tax liability. Paragraph (d) does not preclude

undertaking a criminal defense incident to a general retainer for legal services to a

lawful enterprise. The last clause of paragraph (d) recognizes that determining the

validity or interpretation of a statute or regulation may require a course of action

involving disobedience of the statute or regulation or of the interpretation placed

upon it by governmental authorities

aph (d) does not preclude

undertaking a criminal defense incident to a general retainer for legal services to a

lawful enterprise. The last clause of paragraph (d) recognizes that determining the

validity or interpretation of a statute or regulation may require a course of action

involving disobedience of the statute or regulation or of the interpretation placed

upon it by governmental authorities.

[13] If a lawyer comes to know or reasonably should know that a client expects

assistance not permitted by the Rules of Professional Conduct or other law or if the

lawyer intends to act contrary to the client’s instructions, the lawyer must consult

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

[14] The prohibition stated in paragraph (e) has existed in Illinois ethics rules and

in the prior Code since 1980. It is intended to curtail abuses that occasionally occur

when a lawyer attempts to transfer complete or substantial responsibility for a matter

to an unaffiliated lawyer without the client’s awareness or consent. The Rule is

designed to clarify the lawyer’s obligation to complete the employment contemplated

unless the client gives informed consent to substitution by an unaffiliated lawyer. The

Rule is not intended to prohibit lawyers from hiring lawyers outside of their firm to

perform certain services on the client’s or the law firm’s behalf. Nor is it intended to

prevent lawyers from engaging lawyers outside of their firm to stand in for discrete

events in situations such as personal emergencies, illness or schedule conflicts.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.3: DILIGENCE

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

client.

Adopted July 1, 2009, effective January 1, 2010.

Comment

[1] A lawyer should pursue a matter on behalf of a client despite opposition,

obstruction or personal inconvenience to the lawyer, and take whatever lawful and

-14-

or schedule conflicts.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.3: DILIGENCE

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

client.

Adopted July 1, 2009, effective January 1, 2010.

Comment

[1] A lawyer should pursue a matter on behalf of a client despite opposition,

obstruction or personal inconvenience to the lawyer, and take whatever lawful and

-14-

ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must

also act with commitment and dedication to the interests of the client and with zeal

in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for

every advantage that might be realized for a client. For example, a lawyer may have

authority to exercise professional discretion in determining the means by which a

matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable

diligence does not require the use of offensive tactics or preclude the treating of all

persons involved in the legal process with courtesy and respect.

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

competently.

[3] Perhaps no professional shortcoming is more widely resented than

procrastination. A client’s interests often can be adversely affected by the passage of

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

a statute of limitations, the client’s legal position may be destroyed. Even when the

client’s interests are not affected in substance, however, unreasonable delay can cause

a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.

A lawyer’s duty to act with reasonable promptness, however, does not preclude the

lawyer from agreeing to a reasonable request for a postponement that will not

prejudice the lawyer’s client.

[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer

should carry through to conclusion all matters undertaken for a client

ety and undermine confidence in the lawyer’s trustworthiness.

A lawyer’s duty to act with reasonable promptness, however, does not preclude the

lawyer from agreeing to a reasonable request for a postponement that will not

prejudice the lawyer’s client.

[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer

should carry through to conclusion all matters undertaken for a client. If a lawyer’s

employment is limited to a specific matter, the relationship terminates when the

matter has been resolved. If a lawyer has served a client over a substantial period in

a variety of matters, the client sometimes may assume that the lawyer will continue

to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt

about whether a client-lawyer relationship still exists should be clarified by the

lawyer, preferably in writing, so that the client will not mistakenly suppose the

lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For

example, if a lawyer has handled a judicial or administrative proceeding that

produced a result adverse to the client and the lawyer and the client have not agreed

that the lawyer will handle the matter on appeal, the lawyer must consult with the

client about the possibility of appeal before relinquishing responsibility for the

matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal

for the client depends on the scope of the representation the lawyer has agreed to

provide to the client. See Rule 1.2.

[5] To prevent neglect of client matters in the event of a sole practitioner’s death

or disability, the duty of diligence may require that each sole practitioner prepare a

plan, in conformity with applicable rules, that designates another competent lawyer

to review client files, notify each client of the lawyer’s death or disability, and

determine whether there is a need for immediate protective action. See Illinois

Supreme Court Rule 776, Appointment of Receiver in Certain Cases.

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sability, the duty of diligence may require that each sole practitioner prepare a

plan, in conformity with applicable rules, that designates another competent lawyer

to review client files, notify each client of the lawyer’s death or disability, and

determine whether there is a need for immediate protective action. See Illinois

Supreme Court Rule 776, Appointment of Receiver in Certain Cases.

-15-

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.4: COMMUNICATION

(a) A lawyer shall:

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

to which the client’s informed consent, as defined in Rule 1.0(e), is required by

these Rules;

(2) reasonably consult with the client about the means by which the client’s

objectives are to be accomplished;

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

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s

conduct when the lawyer knows that the client expects assistance not permitted

by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit

the client to make informed decisions regarding the representation.

Adopted July 1, 2009, effective January 1, 2010.

Comment

[1] Reasonable communication between the lawyer and the client is necessary for

the client effectively to participate in the representation.

Communicating with Client

[2] If these Rules require that a particular decision about the representation be

made by the client, paragraph (a)(1) requires that the lawyer promptly consult with

and secure the client’s consent prior to taking action unless prior discussions with the

client have resolved what action the client wants the lawyer to take

effectively to participate in the representation.

Communicating with Client

[2] If these Rules require that a particular decision about the representation be

made by the client, paragraph (a)(1) requires that the lawyer promptly consult with

and secure the client’s consent prior to taking action unless prior discussions with the

client have resolved what action the client wants the lawyer to take. For example, a

lawyer who receives from opposing counsel an offer of settlement in a civil

controversy or a proffered plea bargain in a criminal case must promptly inform the

client of its substance unless the client has previously indicated that the proposal will

be acceptable or unacceptable or has authorized the lawyer to accept or to reject the

offer. See Rule 1.2(a).

[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client

about the means to be used to accomplish the client’s objectives. In some

situations–depending on both the importance of the action under consideration and

the feasibility of consulting with the client–this duty will require consultation prior

to taking action. In other circumstances, such as during a trial when an immediate

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decision must be made, the exigency of the situation may require the lawyer to act

without prior consultation. In such cases the lawyer must nonetheless act reasonably

to inform the client of actions the lawyer has taken on the client’s behalf.

Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably

informed about the status of the matter, such as significant developments affecting

the timing or the substance of the representation.

[4] A lawyer’s regular communication with clients will minimize the occasions

on which a client will need to request information concerning the representation

on the client’s behalf.

Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably

informed about the status of the matter, such as significant developments affecting

the timing or the substance of the representation.

[4] A lawyer’s regular communication with clients will minimize the occasions

on which a client will need to request information concerning the representation.

When a client makes a reasonable request for information, however, paragraph (a)(4)

requires prompt compliance with the request, or if a prompt response is not feasible,

that the lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request

and advise the client when a response may be expected. Client telephone calls should

be promptly returned or acknowledged.

Explaining Matters

[5] The client should have sufficient information to participate intelligently in

decisions concerning the objectives of the representation and the means by which

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

of communication depends in part on the kind of advice or assistance that is

involved. For example, when there is time to explain a proposal made in a

negotiation, the lawyer should review all important provisions with the client before

proceeding to an agreement. In litigation a lawyer should explain the general strategy

and prospects of success and ordinarily should consult the client on tactics that are

likely to result in significant expense or to injure or coerce others. On the other hand,

a lawyer ordinarily will not be expected to describe trial or negotiation strategy in

detail. The guiding principle is that the lawyer should fulfill reasonable client

expectations for information consistent with the duty to act in the client’s best

interests, and the client’s overall requirements as to the character of representation

icant expense or to injure or coerce others. On the other hand,

a lawyer ordinarily will not be expected to describe trial or negotiation strategy in

detail. The guiding principle is that the lawyer should fulfill reasonable client

expectations for information consistent with the duty to act in the client’s best

interests, and the client’s overall requirements as to the character of representation.

In certain circumstances, such as when a lawyer asks a client to consent to a

representation affected by a conflict of interest, the client must give informed

consent, as defined in Rule 1.0(e).

[6] Ordinarily, the information to be provided is that appropriate for a client who

is a comprehending and responsible adult. However, fully informing the client

according to this standard may be impracticable, for example, where the client is a

child or suffers from diminished capacity. See Rule 1.14. When the client is an

organization or group, it is often impossible or inappropriate to inform every one of

its members about its legal affairs; ordinarily, the lawyer should address

communications to the appropriate officials of the organization. See Rule 1.13.

Where many routine matters are involved, a system of limited or occasional reporting

may be arranged with the client.

Withholding Information

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[7] In some circumstances, a lawyer may be justified in delaying transmission of

information when the client would be likely to react imprudently to an immediate

communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client

when the examining psychiatrist indicates that disclosure would harm the client. A

lawyer may not withhold information to serve the lawyer’s own interest or

convenience or the interests or convenience of another person. Rules or court orders

governing litigation may provide that information supplied to a lawyer may not be

disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.5: FEES

he client. A

lawyer may not withhold information to serve the lawyer’s own interest or

convenience or the interests or convenience of another person. Rules or court orders

governing litigation may provide that information supplied to a lawyer may not be

disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.5: FEES

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable

fee or an unreasonable amount for expenses. The factors to be considered in

determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions

involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the

particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

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

(7) the experience, reputation, and ability of the lawyer or lawyers performing

the services; and

(8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses

for which the client will be responsible shall be communicated to the client,

preferably in writing, before or within a reasonable time after commencing the

representation, except when the lawyer will charge a regularly represented client on

the same basis or rate. Any changes in the basis or rate of the fee or expenses shall

also be communicated to the client.

(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

ble time after commencing the

representation, except when the lawyer will charge a regularly represented client on

the same basis or rate. Any changes in the basis or rate of the fee or expenses shall

also be communicated to the client.

(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 in a writing signed by the client

and shall state the method by which the fee is to be determined, including the

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

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

whether such expenses are to be deducted before or after the contingent fee is

-18-

calculated. The agreement must clearly notify the client of any expenses for which

the client will be liable whether or not the client is the prevailing party. Upon

conclusion of a contingent fee matter, the lawyer shall provide the client with a

written statement stating the outcome of the matter and, if there is a recovery,

showing the remittance to the client and the method of its determination.

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

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

is contingent upon the securing of a divorce or upon the amount of alimony or

support, or property settlement in lieu thereof; or

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

to the client and the method of its determination.

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

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

is contingent upon the securing of a divorce or upon the amount of alimony or

support, or property settlement in lieu thereof; or

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

(e) A division of a fee between lawyers who are not in the same firm may be

made only if:

(1) the division is in proportion to the services performed by each lawyer, or

if the primary service performed by one lawyer is the referral of the client to

another lawyer and each lawyer assumes joint financial responsibility for the

representation;

(2) the client agrees to the arrangement, including the share each lawyer will

receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

Adopted July 1, 2009, effective January 1, 2010.

Comment

Reasonableness of Fee and Expenses

[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the

circumstances. The factors specified in (1) through (8) are not exclusive. Nor will

each factor be relevant in each instance. Paragraph (a) also requires that expenses for

which the client will be charged must be reasonable. A lawyer may seek

reimbursement for the cost of services performed in-house, such as copying, or for

other expenses incurred in-house, such as telephone charges, either by charging a

reasonable amount to which the client has agreed in advance or by charging an

amount that reasonably reflects the cost incurred by the lawyer.

Basis or Rate of Fee

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

evolved an understanding concerning the basis or rate of the fee and the expenses for

which the client will be responsible. In a new client-lawyer relationship, however, an

understanding as to fees and expenses must be promptly established

that reasonably reflects the cost incurred by the lawyer.

Basis or Rate of Fee

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

evolved an understanding concerning the basis or rate of the fee and the expenses for

which the client will be responsible. In a new client-lawyer relationship, however, an

understanding as to fees and expenses must be promptly established. Generally, it is

desirable to furnish the client with at least a simple memorandum or copy of the

lawyer’s customary fee arrangements that states the general nature of the legal

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services to be provided, the basis, rate or total amount of the fee and whether and to

what extent the client will be responsible for any costs, expenses or disbursements

in the course of the representation. A written statement concerning the terms of the

engagement reduces the possibility of misunderstanding.

[3] Contingent fees, like any other fees, are subject to the reasonableness standard

of paragraph (a) of this Rule. In determining whether a particular contingent fee is

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

must consider the factors that are relevant under the circumstances. Applicable law

may impose limitations on contingent fees, such as a ceiling on the percentage

allowable, or may require a lawyer to offer clients an alternative basis for the fee.

Applicable law also may apply to situations other than a contingent fee, for example,

government regulations regarding fees in certain tax matters.

Terms of Payment

[4] A lawyer may require advance payment of a fee, but is obliged to return any

unearned portion. See Comments [3B] through [3D] to Rule 1.15 and Rule 1.16(d).

A lawyer may accept property in payment for services, such as an ownership interest

in an enterprise, providing this does not involve acquisition of a proprietary interest

in the cause of action or subject matter of the litigation contrary to Rule 1.8 (i)

y require advance payment of a fee, but is obliged to return any

unearned portion. See Comments [3B] through [3D] to Rule 1.15 and Rule 1.16(d).

A lawyer may accept property in payment for services, such as an ownership interest

in an enterprise, providing this does not involve acquisition of a proprietary interest

in the cause of action or subject matter of the litigation contrary to Rule 1.8 (i).

However, a fee paid in property instead of money may be subject to the requirements

of Rule 1.8(a) because such fees often have the essential qualities of a business

transaction with the client.

[5] An agreement may not be made whose terms might induce the lawyer

improperly to curtail services for the client or perform them in a way contrary to the

client’s interest. For example, a lawyer should not enter into an agreement whereby

services are to be provided only up to a stated amount when it is foreseeable that

more extensive services probably will be required, unless the situation is adequately

explained to the client. Otherwise, the client might have to bargain for further

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

the extent of services in light of the client’s ability to pay. A lawyer should not

exploit a fee arrangement based primarily on hourly charges by using wasteful

procedures.

Prohibited Contingent Fees

[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic

relations matter when payment is contingent upon the securing of a divorce or upon

the amount of alimony or support or property settlement to be obtained. This

provision does not preclude a contract for a contingent fee for legal representation in

connection with the recovery of postjudgment balances due under support, alimony

or other financial orders because such contracts do not implicate the same policy

concerns.

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ment is contingent upon the securing of a divorce or upon

the amount of alimony or support or property settlement to be obtained. This

provision does not preclude a contract for a contingent fee for legal representation in

connection with the recovery of postjudgment balances due under support, alimony

or other financial orders because such contracts do not implicate the same policy

concerns.

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Division of Fee

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

lawyers who are not in the same firm. A division of fee facilitates association of more

than one lawyer in a matter in which neither alone could serve the client as well, or

referral of a matter where appropriate, and often is used when the fee is contingent

and the division is between a referring lawyer and a trial specialist. Paragraph (e)

permits the lawyers to divide a fee either on the basis of the proportion of services

they render or, where the primary service performed by one lawyer is the referral of

the client to another lawyer, if each lawyer assumes financial responsibility for the

representation as a whole. In addition, the client must agree to the arrangement,

including the share that each lawyer is to receive, and the agreement must be

confirmed in writing. Contingent fee agreements must be in a writing signed by the

client and must otherwise comply with paragraph (c) of this Rule. Joint financial

responsibility for the representation entails financial responsibility for the

representation as if the lawyers were associated in a general partnership. See In re

Storment, 203 Ill. 2d 378 (2002). A lawyer should only refer a matter to a lawyer

whom the referring lawyer reasonably believes is competent to handle the matter. See

Rule 1.1.

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in

the future for work done when lawyers were previously associated in a law firm, or

payments made pursuant to a separation or retirement agreement

ent, 203 Ill. 2d 378 (2002). A lawyer should only refer a matter to a lawyer

whom the referring lawyer reasonably believes is competent to handle the matter. See

Rule 1.1.

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in

the future for work done when lawyers were previously associated in a law firm, or

payments made pursuant to a separation or retirement agreement.

Disputes over Fees

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

arbitration or mediation procedure established by law or rule, the lawyer must comply

with the procedure when it is mandatory, and, even when it is voluntary, the lawyer

should conscientiously consider submitting to it. Law may prescribe a procedure for

determining a lawyer’s fee, for example, in representation of an executor or

administrator, a class or a person entitled to a reasonable fee as part of the measure

of damages. The lawyer entitled to such a fee and a lawyer representing another party

concerned with the fee should comply with the prescribed procedure.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.6: CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to the representation of a client

unless the client gives informed consent, the disclosure is impliedly authorized in

order to carry out the representation, or the disclosure is permitted by paragraph (b)

or required by paragraph (c).

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escribed procedure.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.6: CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to the representation of a client

unless the client gives informed consent, the disclosure is impliedly authorized in

order to carry out the representation, or the disclosure is permitted by paragraph (b)

or required by paragraph (c).

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(b) A lawyer may reveal information relating to the representation of a client to

the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a crime in circumstances other than

those specified in paragraph (c);

(2) to prevent the client from committing fraud that is reasonably certain to

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

furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests

or property of another that is reasonably certain to result or has resulted from the

client’s commission of a crime or fraud in furtherance of which the client has

used the lawyer’s services;

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

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

between the lawyer and the client, to establish a defense to a criminal charge or

civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer’s

representation of the client; or

(6) to comply with other law or a court order.

(c) A lawyer shall reveal information relating to the representation of a client to

the extent the lawyer reasonably believes necessary to prevent reasonably certain

death or substantial bodily harm.

ed upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer’s

representation of the client; or

(6) to comply with other law or a court order.

(c) A lawyer shall reveal information relating to the representation of a client to

the extent the lawyer reasonably believes necessary to prevent reasonably certain

death or substantial bodily harm.

(d) Information received by a lawyer participating in a meeting or proceeding

with a trained intervener or panel of trained interveners of an approved lawyers’

assistance program, or in an intermediary program approved by a circuit court in

which nondisciplinary complaints against judges or lawyers can be referred, shall be

considered information relating to the representation of a client for purposes of these

Rules.

Adopted July 1, 2009, effective January 1, 2010.

Comment

[1] This Rule governs the disclosure by a lawyer of information relating to the

representation of a client during the lawyer’s representation of the client. See Rule

1.18 for the lawyer’s duties with respect to information provided to the lawyer by a

prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information

relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and

1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the

disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the

absence of the client’s informed consent, the lawyer must not reveal information

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to reveal information

relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and

1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the

disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the

absence of the client’s informed consent, the lawyer must not reveal information

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relating to the representation. See Rule 1.0(e) for the definition of informed consent.

This contributes to the trust that is the hallmark of the client-lawyer relationship. The

client is thereby encouraged to seek legal assistance and to communicate fully and

frankly with the lawyer even as to embarrassing or legally damaging subject matter.

The lawyer needs this information to represent the client effectively and, if necessary,

to advise the client to refrain from wrongful conduct. Almost without exception,

clients come to lawyers in order to determine their rights and what is, in the complex

of laws and regulations, deemed to be legal and correct. Based upon experience,

lawyers know that almost all clients follow the advice given, and the law is upheld.

[3] The principle of client-lawyer confidentiality is given effect by related bodies

of law: the attorney-client privilege, the work product doctrine and the rule of

confidentiality established in professional ethics. The attorney-client privilege and

work product doctrine apply in judicial and other proceedings in which a lawyer may

be called as a witness or otherwise required to produce evidence concerning a client.

The rule of client-lawyer confidentiality applies in situations other than those where

evidence is sought from the lawyer through compulsion of law. The confidentiality

rule, for example, applies not only to matters communicated in confidence by the

client but also to all information relating to the representation, whatever its source

or otherwise required to produce evidence concerning a client.

The rule of client-lawyer confidentiality applies in situations other than those where

evidence is sought from the lawyer through compulsion of law. The confidentiality

rule, for example, applies not only to matters communicated in confidence by the

client but also to all information relating to the representation, whatever its source.

A lawyer may not disclose such information except as authorized or required by the

Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing information relating to the

representation of a client. This prohibition also applies to disclosures by a lawyer that

do not in themselves reveal protected information but could reasonably lead to the

discovery of such information by a third person. A lawyer’s use of a hypothetical to

discuss issues relating to the representation is permissible so long as there is no

reasonable likelihood that the listener will be able to ascertain the identity of the

client or the situation involved.

Authorized Disclosure

[5] Except to the extent that the client’s instructions or special circumstances

limit that authority, a lawyer is impliedly authorized to make disclosures about a

client when appropriate in carrying out the representation. In some situations, for

example, a lawyer may be impliedly authorized to admit a fact that cannot properly

be disputed or to make a disclosure that facilitates a satisfactory conclusion to a

matter. Lawyers in a firm may, in the course of the firm’s practice, disclose to each

other information relating to a client of the firm, unless the client has instructed that

particular information be confined to specified lawyers.

Disclosure Adverse to Client

[6] Although the public interest is usually best served by a strict rule requiring

lawyers to preserve the confidentiality of information relating to the representation

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he course of the firm’s practice, disclose to each

other information relating to a client of the firm, unless the client has instructed that

particular information be confined to specified lawyers.

Disclosure Adverse to Client

[6] Although the public interest is usually best served by a strict rule requiring

lawyers to preserve the confidentiality of information relating to the representation

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of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (c)

recognizes the overriding value of life and physical integrity and requires disclosure

reasonably necessary to prevent reasonably certain death or substantial bodily harm.

Such harm is reasonably certain to occur if it will be suffered imminently or if there

is a present and substantial threat that a person will suffer such harm at a later date

if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who

knows from information relating to a representation that a client or other person has

accidentally discharged toxic waste into a town’s water must reveal this information

to the authorities if there is a present and substantial risk that a person who drinks the

water will contract a life-threatening or debilitating disease and the lawyer’s

disclosure is necessary to eliminate the threat or reduce the number of victims.

[6A] Paragraph (b)(1) preserves the policy of the 1980 Illinois Code of

Professional Responsibility and the 1990 Illinois Rules of Professional Conduct that

permitted a lawyer to reveal the intention of a client to commit a crime. This general

provision would permit disclosure where the client’s intended conduct is a crime,

including a financial crime, and the situation is not covered by paragraph (c)

Paragraph (b)(1) preserves the policy of the 1980 Illinois Code of

Professional Responsibility and the 1990 Illinois Rules of Professional Conduct that

permitted a lawyer to reveal the intention of a client to commit a crime. This general

provision would permit disclosure where the client’s intended conduct is a crime,

including a financial crime, and the situation is not covered by paragraph (c).

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that

permits the lawyer to reveal information to the extent necessary to enable affected

persons or appropriate authorities to prevent the client from committing fraud, as

defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the

financial or property interests of another and in furtherance of which the client has

used or is using the lawyer’s services. Such a serious abuse of the client-lawyer

relationship by the client forfeits the protection of this Rule. The client can, of course,

prevent such disclosure by refraining from the wrongful conduct. Like paragraph

(b)(1), paragraph (b)(2) does not require the lawyer to reveal the client’s misconduct,

but the lawyer may not counsel or assist the client in conduct the lawyer knows is

criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the

lawyer’s obligation or right to withdraw from the representation of the client in such

circumstances, and Rule 1.13(c), which permits the lawyer, where the client is an

organization, to reveal information relating to the representation in limited

circumstances.

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of

the client’s crime or fraud until after it has been consummated. Although the client

no longer has the option of preventing disclosure by refraining from the wrongful

conduct, there will be situations in which the loss suffered by the affected person can

be prevented, rectified or mitigated

in limited

circumstances.

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of

the client’s crime or fraud until after it has been consummated. Although the client

no longer has the option of preventing disclosure by refraining from the wrongful

conduct, there will be situations in which the loss suffered by the affected person can

be prevented, rectified or mitigated. In such situations, the lawyer may disclose

information relating to the representation to the extent necessary to enable the

affected persons to prevent or mitigate reasonably certain losses or to attempt to

recoup their losses. Paragraph (b)(3) does not apply when a person who has

committed a crime or fraud thereafter employs a lawyer for representation concerning

that offense.

[9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing

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confidential legal advice about the lawyer’s personal responsibility to comply with

these Rules. In most situations, disclosing information to secure such advice will be

impliedly authorized for the lawyer to carry out the representation. Even when the

disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure

because of the importance of a lawyer’s compliance with the Rules of Professional

Conduct.

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer

in a client’s conduct or other misconduct of the lawyer involving representation of

the client, the lawyer may respond to the extent the lawyer reasonably believes

necessary to establish a defense. The same is true with respect to a claim involving

the conduct or representation of a former client. Such a charge can arise in a civil,

criminal, disciplinary or other proceeding and can be based on a wrong allegedly

committed by the lawyer against the client or on a wrong alleged by a third person,

for example, a person claiming to have been defrauded by the lawyer and client

acting together

se. The same is true with respect to a claim involving

the conduct or representation of a former client. Such a charge can arise in a civil,

criminal, disciplinary or other proceeding and can be based on a wrong allegedly

committed by the lawyer against the client or on a wrong alleged by a third person,

for example, a person claiming to have been defrauded by the lawyer and client

acting together. The lawyer’s right to respond arises when an assertion of such

complicity has been made. Paragraph (b)(5) does not require the lawyer to await the

commencement of an action or proceeding that charges such complicity, so that the

defense may be established by responding directly to a third party who has made such

an assertion. The right to defend also applies, of course, where a proceeding has been

commenced.

[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the

services rendered in an action to collect it. This aspect of the Rule expresses the

principle that the beneficiary of a fiduciary relationship may not exploit it to the

detriment of the fiduciary.

[12] Other law may require that a lawyer disclose information about a client.

Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of

these Rules. When disclosure of information relating to the representation appears

to be required by other law, the lawyer must discuss the matter with the client to the

extent required by Rule 1.4. If, however, the other law supersedes this Rule and

requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as

are necessary to comply with the law.

[13] A lawyer may be ordered to reveal information relating to the representation

of a client by a court or by another tribunal or governmental entity claiming authority

pursuant to other law to compel the disclosure

ule 1.4. If, however, the other law supersedes this Rule and

requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as

are necessary to comply with the law.

[13] A lawyer may be ordered to reveal information relating to the representation

of a client by a court or by another tribunal or governmental entity claiming authority

pursuant to other law to compel the disclosure. Absent informed consent of the client

to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous

claims that the order is not authorized by other law or that the information sought is

protected against disclosure by the attorney-client privilege or other applicable law.

In the event of an adverse ruling, the lawyer must consult with the client about the

possibility of appeal to the extent required by Rule 1.4. Unless review is sought,

however, paragraph (b)(6) permits the lawyer to comply with the court’s order.

[14] Paragraph (b) permits disclosure only to the extent the lawyer reasonably

believes the disclosure is necessary to accomplish one of the purposes specified.

-25-

Where practicable, the lawyer should first seek to persuade the client to take suitable

action to obviate the need for disclosure. In any case, a disclosure adverse to the

client’s interest should be no greater than the lawyer reasonably believes necessary

to accomplish the purpose. If the disclosure will be made in connection with a

judicial proceeding, the disclosure should be made in a manner that limits access to

the information to the tribunal or other persons having a need to know it and

appropriate protective orders or other arrangements should be sought by the lawyer

to the fullest extent practicable.

[15] Paragraph (b) permits but does not require the disclosure of information

relating to a client’s representation to accomplish the purposes specified in

paragraphs (b)(1) through (b)(6)

imits access to

the information to the tribunal or other persons having a need to know it and

appropriate protective orders or other arrangements should be sought by the lawyer

to the fullest extent practicable.

[15] Paragraph (b) permits but does not require the disclosure of information

relating to a client’s representation to accomplish the purposes specified in

paragraphs (b)(1) through (b)(6). In exercising the discretion conferred by this Rule,

the lawyer may consider such factors as the nature of the lawyer’s relationship with

the client and with those who might be injured by the client, the lawyer’s own

involvement in the transaction and factors that may extenuate the conduct in

question. A lawyer’s decision not to disclose as permitted by paragraph (b) does not

violate this Rule. Disclosure may be required, however, by other Rules. Some Rules

require disclosure only if such disclosure would be permitted by paragraph (b). See

Rules 1.2(d), 4.1(b), and 8.1. Rules 3.3 and 8.3, on the other hand, require disclosure

in some circumstances regardless of whether such disclosure is permitted by this

Rule.

Withdrawal

[15A] If the lawyer’s services will be used by a client in materially furthering a

course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule

1.16(a)(1). The lawyer may give notice of the fact of withdrawal regardless of

whether the lawyer decides to disclose information relating to a client’s

representation as permitted by paragraph (b). The lawyer may also withdraw or

disaffirm any opinion or other document that had been prepared for the client or

others. Where the client is an organization, the lawyer must also consider the

provisions of Rule 1.13

e lawyer may give notice of the fact of withdrawal regardless of

whether the lawyer decides to disclose information relating to a client’s

representation as permitted by paragraph (b). The lawyer may also withdraw or

disaffirm any opinion or other document that had been prepared for the client or

others. Where the client is an organization, the lawyer must also consider the

provisions of Rule 1.13.

Acting Competently to Preserve Confidentiality

[16] A lawyer must act competently to safeguard information relating to the

representation of a client against inadvertent or unauthorized disclosure by the lawyer

or other persons who are participating in the representation of the client or who are

subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.

[17] When transmitting a communication that includes information relating to the

representation of a client, the lawyer must take reasonable precautions to prevent the

information from coming into the hands of unintended recipients. This duty,

however, does not require that the lawyer use special security measures if the method

of communication affords a reasonable expectation of privacy. Special

-26-

circumstances, however, may warrant special precautions. Factors to be considered

in determining the reasonableness of the lawyer’s expectation of confidentiality

include the sensitivity of the information and the extent to which the privacy of the

communication is protected by law or by a confidentiality agreement. A client may

require the lawyer to implement special security measures not required by this Rule

or may give informed consent to the use of a means of communication that would

otherwise be prohibited by this Rule.

Former Client

[18] The duty of confidentiality continues after the client-lawyer relationship has

terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using

such information to the disadvantage of the former client

ecurity measures not required by this Rule

or may give informed consent to the use of a means of communication that would

otherwise be prohibited by this Rule.

Former Client

[18] The duty of confidentiality continues after the client-lawyer relationship has

terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using

such information to the disadvantage of the former client.

Lawyers’ Assistance and Court Intermediary Programs

[19] Information about the fitness or conduct of a law student, lawyer or judge

may be received by a lawyer while participating in an approved lawyers’ assistance

program. Protecting the confidentiality of such information encourages law students,

lawyers and judges to seek assistance through such programs. Without such

protection, law students, lawyers and judges may hesitate to seek assistance, to the

detriment of clients and the public. Similarly, lawyers participating in an approved

intermediary program established by a circuit court to resolve nondisciplinary issues

among lawyers and judges may receive information about the fitness or conduct of

a lawyer or judge. Paragraph (d) therefore provides that any information received by

a lawyer participating in an approved lawyers’ assistance program or an approved

circuit court intermediary program will be protected as confidential client

information for purposes of the Rules. See also Comment [5] to Rule 8.3.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of

interest exists if:

(1) the representation of one client will be directly adverse to another client;

or

(2) there is a significant risk that the representation of one or more clients will

be materially limited by the lawyer’s responsibilities to another client, a former

client or a third person or by a personal interest of the lawyer.

-27-

concurrent conflict of interest. A concurrent conflict of

interest exists if:

(1) the representation of one client will be directly adverse to another client;

or

(2) there is a significant risk that the representation of one or more clients will

be materially limited by the lawyer’s responsibilities to another client, a former

client or a third person or by a personal interest of the lawyer.

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(b) Notwithstanding the existence of a concurrent conflict of interest under

paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client

against another client represented by the lawyer in the same litigation or other

proceeding before a tribunal; and

(4) each affected client gives informed consent.

Adopted July 1, 2009, effective January 1, 2010.

Comment

General Principles

[1] Loyalty and independent judgment are essential elements in the lawyer’s

relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s

responsibilities to another client, a former client or a third person or from the

lawyer’s own interests. For specific Rules regarding certain concurrent conflicts of

interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For

conflicts of interest involving prospective clients, see Rule 1.18. For a definition of

“informed consent” see Rule 1.0(e).

[2] Resolution of a conflict of interest problem under this Rule requires the

lawyer to: (1) clearly identify the client or clients; (2) determine whether a conflict

of interest exists; (3) decide whether the representation may be undertaken despite

the existence of a conflict, i.e., whether the conflict is consentable; and (4) if so,

consult with the clients affected under paragraph (a) and obtain their informed

consent

lict of interest problem under this Rule requires the

lawyer to: (1) clearly identify the client or clients; (2) determine whether a conflict

of interest exists; (3) decide whether the representation may be undertaken despite

the existence of a conflict, i.e., whether the conflict is consentable; and (4) if so,

consult with the clients affected under paragraph (a) and obtain their informed

consent. The clients affected under paragraph (a) include both of the clients referred

to in paragraph (a)(1) and the one or more clients whose representation might be

materially limited under paragraph (a)(2).

[3] A conflict of interest may exist before representation is undertaken, in which

event the representation must be declined, unless the lawyer obtains the informed

consent of each client under the conditions of paragraph (b). To determine whether

a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate

for the size and type of firm and practice, to determine in both litigation and

nonlitigation matters the persons and issues involved. See also Comment to Rule 5.1.

Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s

violation of this Rule. As to whether a client-lawyer relationship exists or, having

once been established, is continuing, see Comment to Rule 1.3 and Scope.

[4] If a conflict arises after representation has been undertaken, the lawyer

ordinarily must withdraw from the representation, unless the lawyer has obtained the

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aused by a failure to institute such procedures will not excuse a lawyer’s

violation of this Rule. As to whether a client-lawyer relationship exists or, having

once been established, is continuing, see Comment to Rule 1.3 and Scope.

[4] If a conflict arises after representation has been undertaken, the lawyer

ordinarily must withdraw from the representation, unless the lawyer has obtained the

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informed consent of the client under the conditions of paragraph (b). See Rule 1.16.

Where more than one client is involved, whether the lawyer may continue to

represent any of the clients is determined both by the lawyer’s ability to comply with

duties owed to the former client and by the lawyer’s ability to represent adequately

the remaining client or clients, given the lawyer’s duties to the former client. See

Rule 1.9. See also Comments [5] and [29].

[5] Unforeseeable developments, such as changes in corporate and other

organizational affiliations or the addition or realignment of parties in litigation, might

create conflicts in the midst of a representation, as when a company sued by the

lawyer on behalf of one client is bought by another client represented by the lawyer

in an unrelated matter. Depending on the circumstances, the lawyer may have the

option to withdraw from one of the representations in order to avoid the conflict. The

lawyer must seek court approval where necessary and take steps to minimize harm

to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of

the client from whose representation the lawyer has withdrawn. See Rule 1.9(c).

Identifying Conflicts of Interest: Directly Adverse

[6] Loyalty to a current client prohibits undertaking representation directly

adverse to that client without that client’s informed consent. Thus, absent consent,

a lawyer may not act as an advocate in one matter against a person the lawyer

represents in some other matter, even when the matters are wholly unrelated

has withdrawn. See Rule 1.9(c).

Identifying Conflicts of Interest: Directly Adverse

[6] Loyalty to a current client prohibits undertaking representation directly

adverse to that client without that client’s informed consent. Thus, absent consent,

a lawyer may not act as an advocate in one matter against a person the lawyer

represents in some other matter, even when the matters are wholly unrelated. The

client as to whom the representation is directly adverse is likely to feel betrayed, and

the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s

ability to represent the client effectively. In addition, the client on whose behalf the

adverse representation is undertaken reasonably may fear that the lawyer will pursue

that client’s case less effectively out of deference to the other client, i.e., that the

representation may be materially limited by the lawyer’s interest in retaining the

current client. Similarly, a directly adverse conflict may arise when a lawyer is

required to cross-examine a client who appears as a witness in a lawsuit involving

another client, as when the testimony will be damaging to the client who is

represented in the lawsuit. On the other hand, simultaneous representation in

unrelated matters of clients whose interests are only economically adverse, such as

representation of competing economic enterprises in unrelated litigation, does not

ordinarily constitute a conflict of interest and thus may not require consent of the

respective clients.

[7] Directly adverse conflicts can also arise in transactional matters. For example,

if a lawyer is asked to represent the seller of a business in negotiations with a buyer

represented by the lawyer, not in the same transaction but in another, unrelated

matter, the lawyer could not undertake the representation without the informed

consent of each client.

Identifying Conflicts of Interest: Material Limitation

-29-

erse conflicts can also arise in transactional matters. For example,

if a lawyer is asked to represent the seller of a business in negotiations with a buyer

represented by the lawyer, not in the same transaction but in another, unrelated

matter, the lawyer could not undertake the representation without the informed

consent of each client.

Identifying Conflicts of Interest: Material Limitation

-29-

[8] Even where there is no direct adverseness, a conflict of interest exists if there

is a significant risk that a lawyer’s ability to consider, recommend or carry out an

appropriate course of action for the client will be materially limited as a result of the

lawyer’s other responsibilities or interests. For example, a lawyer asked to represent

several individuals seeking to form a joint venture is likely to be materially limited

in the lawyer’s ability to recommend or advocate all possible positions that each

might take because of the lawyer’s duty of loyalty to the others. The conflict in effect

forecloses alternatives that would otherwise be available to the client. The mere

possibility of subsequent harm does not itself require disclosure and consent. The

critical questions are the likelihood that a difference in interests will eventuate and,

if it does, whether it will materially interfere with the lawyer’s independent

professional judgment in considering alternatives or foreclose courses of action that

reasonably should be pursued on behalf of the client.

Lawyer’s Responsibilities to Former Clients and Other Third Persons

[9] In addition to conflicts with other current clients, a lawyer’s duties of loyalty

and independence may be materially limited by responsibilities to former clients

under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary

duties arising from a lawyer’s service as a trustee, executor or corporate director.

Personal Interest Conflicts

[10] The lawyer’s own interests should not be permitted to have an adverse effect

on representation of a client

loyalty

and independence may be materially limited by responsibilities to former clients

under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary

duties arising from a lawyer’s service as a trustee, executor or corporate director.

Personal Interest Conflicts

[10] The lawyer’s own interests should not be permitted to have an adverse effect

on representation of a client. For example, if the probity of a lawyer’s own conduct

in a transaction is in serious question, it may be difficult or impossible for the lawyer

to give a client detached advice. Similarly, when a lawyer has discussions concerning

possible employment with an opponent of the lawyer’s client, or with a law firm

representing the opponent, such discussions could materially limit the lawyer’s

representation of the client. In addition, a lawyer may not allow related business

interests to affect representation, for example, by referring clients to an enterprise in

which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific

Rules pertaining to a number of personal interest conflicts, including business

transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule

1.7 ordinarily are not imputed to other lawyers in a law firm).

[11] When lawyers representing different clients in the same matter or in

substantially related matters are closely related by blood or marriage, there may be

a significant risk that client confidences will be revealed and that the lawyer’s family

relationship will interfere with both loyalty and independent professional judgment.

As a result, each client is entitled to know of the existence and implications of the

relationship between the lawyers before the lawyer agrees to undertake the

representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling

or spouse, ordinarily may not represent a client in a matter where that lawyer is

representing another party, unless each client gives informed consent. The

-30-

each client is entitled to know of the existence and implications of the

relationship between the lawyers before the lawyer agrees to undertake the

representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling

or spouse, ordinarily may not represent a client in a matter where that lawyer is

representing another party, unless each client gives informed consent. The

-30-

disqualification arising from a close family relationship is personal and ordinarily is

not imputed to members of firms with whom the lawyers are associated. See Rule

1.10.

[12] A lawyer is prohibited from engaging in sexual relationships with a client

unless the sexual relationship predates the formation of the client-lawyer relationship.

See Rule 1.8(j).

Interest of Person Paying for a Lawyer’s Service

[13] A lawyer may be paid from a source other than the client, including a co-

client, if the client is informed of that fact and consents and the arrangement does not

compromise the lawyer’s duty of loyalty or independent judgment to the client. See

Rule 1.8(f). If acceptance of the payment from any other source presents a significant

risk that the lawyer’s representation of the client will be materially limited by the

lawyer’s own interest in accommodating the person paying the lawyer’s fee or by the

lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must

comply with the requirements of paragraph (b) before accepting the representation,

including determining whether the conflict is consentable and, if so, that the client

has adequate information about the material risks of the representation.

Prohibited Representations

[14] Ordinarily, clients may consent to representation notwithstanding a conflict.

However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning

that the lawyer involved cannot properly ask for such agreement or provide

representation on the basis of the client’s consent

client

has adequate information about the material risks of the representation.

Prohibited Representations

[14] Ordinarily, clients may consent to representation notwithstanding a conflict.

However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning

that the lawyer involved cannot properly ask for such agreement or provide

representation on the basis of the client’s consent. When the lawyer is representing

more than one client, the question of consentability must be resolved as to each

client.

[15] Consentability is typically determined by considering whether the interests

of the clients will be adequately protected if the clients are permitted to give their

informed consent to representation burdened by a conflict of interest. Thus, under

paragraph (b)(1), representation is prohibited if in the circumstances the lawyer

cannot reasonably conclude that the lawyer will be able to provide competent and

diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).

[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the

representation is prohibited by applicable law. For example, in some states

substantive law provides that the same lawyer may not represent more than one

defendant in a capital case, even with the consent of the clients, and under federal

criminal statutes certain representations by a former government lawyer are

prohibited, despite the informed consent of the former client. In addition, decisional

law in some states limits the ability of a governmental client, such as a municipality,

to consent to a conflict of interest.

[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the

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lients, and under federal

criminal statutes certain representations by a former government lawyer are

prohibited, despite the informed consent of the former client. In addition, decisional

law in some states limits the ability of a governmental client, such as a municipality,

to consent to a conflict of interest.

[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the

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institutional interest in vigorous development of each client’s position when the

clients are aligned directly against each other in the same litigation or other

proceeding before a tribunal. Whether clients are aligned directly against each other

within the meaning of this paragraph requires examination of the context of the

proceeding. Although this paragraph does not preclude a lawyer’s multiple

representation of adverse parties to a mediation (because mediation is not a

proceeding before a “tribunal” under Rule 1.0(m)), such representation may be

precluded by paragraph (b)(1).

Informed Consent

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

circumstances and of the material and reasonably foreseeable ways that the conflict

could have adverse effects on the interests of that client. See Rule 1.0(e) (informed

consent). The information required depends on the nature of the conflict and the

nature of the risks involved. When representation of multiple clients in a single

matter is undertaken, the information must include the implications of the common

representation, including possible effects on loyalty, confidentiality and the attorney-

client privilege and the advantages and risks involved. See Comments [30] and [31]

(effect of common representation on confidentiality).

[19] Under some circumstances it may be impossible to make the disclosure

necessary to obtain consent

undertaken, the information must include the implications of the common

representation, including possible effects on loyalty, confidentiality and the attorney-

client privilege and the advantages and risks involved. See Comments [30] and [31]

(effect of common representation on confidentiality).

[19] Under some circumstances it may be impossible to make the disclosure

necessary to obtain consent. For example, when the lawyer represents different

clients in related matters and one of the clients refuses to consent to the disclosure

necessary to permit the other client to make an informed decision, the lawyer cannot

properly ask the latter to consent. In some cases the alternative to common

representation can be that each party may have to obtain separate representation with

the possibility of incurring additional costs. These costs, along with the benefits of

securing separate representation, are factors that may be considered by the affected

client in determining whether common representation is in the client’s interests.

[20] Reserved.

Revoking Consent

[21] A client who has given consent to a conflict may revoke the consent and,

like any other client, may terminate the lawyer’s representation at any time. Whether

revoking consent to the client’s own representation precludes the lawyer from

continuing to represent other clients depends on the circumstances, including the

nature of the conflict, whether the client revoked consent because of a material

change in circumstances, the reasonable expectations of the other clients and whether

material detriment to the other clients or the lawyer would result.

Consent to Future Conflict

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ient’s own representation precludes the lawyer from

continuing to represent other clients depends on the circumstances, including the

nature of the conflict, whether the client revoked consent because of a material

change in circumstances, the reasonable expectations of the other clients and whether

material detriment to the other clients or the lawyer would result.

Consent to Future Conflict

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[22] Whether a lawyer may properly request a client to waive conflicts that might

arise in the future is subject to the test of paragraph (b). The effectiveness of such

waivers is generally determined by the extent to which the client reasonably

understands the material risks that the waiver entails. The more comprehensive the

explanation of the types of future representations that might arise and the actual and

reasonably foreseeable adverse consequences of those representations, the greater the

likelihood that the client will have the requisite understanding. Thus, if the client

agrees to consent to a particular type of conflict with which the client is already

familiar, then the consent ordinarily will be effective with regard to that type of

conflict. If the consent is general and open-ended, then the consent ordinarily will be

ineffective, because it is not reasonably likely that the client will have understood the

material risks involved. On the other hand, if the client is an experienced user of the

legal services involved and is reasonably informed regarding the risk that a conflict

may arise, such consent is more likely to be effective, particularly if, e.g., the client

is independently represented by other counsel in giving consent and the consent is

limited to future conflicts unrelated to the subject of the representation. In any case,

advance consent cannot be effective if the circumstances that materialize in the future

are such as would make the conflict nonconsentable under paragraph (b)

ent is more likely to be effective, particularly if, e.g., the client

is independently represented by other counsel in giving consent and the consent is

limited to future conflicts unrelated to the subject of the representation. In any case,

advance consent cannot be effective if the circumstances that materialize in the future

are such as would make the conflict nonconsentable under paragraph (b).

Conflicts in Litigation

[23] Paragraph (b)(3) prohibits representation of opposing parties in the same

litigation, regardless of the clients’ consent. On the other hand, simultaneous

representation of parties whose interests in litigation may conflict, such as

coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist

by reason of substantial discrepancy in the parties’ testimony, incompatibility in

positions in relation to an opposing party or the fact that there are substantially

different possibilities of settlement of the claims or liabilities in question. Such

conflicts can arise in criminal cases as well as civil. The potential for conflict of

interest in representing multiple defendants in a criminal case is so grave that

ordinarily a lawyer should decline to represent more than one codefendant. On the

other hand, common representation of persons having similar interests in civil

litigation is proper if the requirements of paragraph (b) are met.

[24] Ordinarily a lawyer may take inconsistent legal positions in different

tribunals at different times on behalf of different clients. The mere fact that

advocating a legal position on behalf of one client might create precedent adverse to

the interests of a client represented by the lawyer in an unrelated matter does not

create a conflict of interest

f the requirements of paragraph (b) are met.

[24] Ordinarily a lawyer may take inconsistent legal positions in different

tribunals at different times on behalf of different clients. The mere fact that

advocating a legal position on behalf of one client might create precedent adverse to

the interests of a client represented by the lawyer in an unrelated matter does not

create a conflict of interest. A conflict of interest exists, however, if there is a

significant risk that a lawyer’s action on behalf of one client will materially limit the

lawyer’s effectiveness in representing another client in a different case; for example,

when a decision favoring one client will create a precedent likely to seriously weaken

the position taken on behalf of the other client. Factors relevant in determining

whether the clients need to be advised of the risk include: where the cases are

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pending, whether the issue is substantive or procedural, the temporal relationship

between the matters, the significance of the issue to the immediate and long-term

interests of the clients involved and the clients’ reasonable expectations in retaining

the lawyer. If there is significant risk of material limitation, then absent informed

consent of the affected clients, the lawyer must refuse one of the representations or

withdraw from one or both matters.

[25] When a lawyer represents or seeks to represent a class of plaintiffs or

defendants in a class-action lawsuit, unnamed members of the class are ordinarily not

considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of

this Rule. Thus, the lawyer does not typically need to get the consent of such a person

before representing a client suing the person in an unrelated matter. Similarly, a

lawyer seeking to represent an opponent in a class action does not typically need the

consent of an unnamed member of the class whom the lawyer represents in an

unrelated matter

lawyer for purposes of applying paragraph (a)(1) of

this Rule. Thus, the lawyer does not typically need to get the consent of such a person

before representing a client suing the person in an unrelated matter. Similarly, a

lawyer seeking to represent an opponent in a class action does not typically need the

consent of an unnamed member of the class whom the lawyer represents in an

unrelated matter.

Nonlitigation Conflicts

[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other

than litigation. For a discussion of directly adverse conflicts in transactional matters,

see Comment [7]. Relevant factors in determining whether there is significant

potential for material limitation include the duration and intimacy of the lawyer’s

relationship with the client or clients involved, the functions being performed by the

lawyer, the likelihood that disagreements will arise and the likely prejudice to the

client from the conflict. The question is often one of proximity and degree. See

Comment [8].

[27] For example, conflict questions may arise in estate planning and estate

administration. A lawyer may be called upon to prepare wills for several family

members, such as husband and wife, and, depending upon the circumstances, a

conflict of interest may be present. In estate administration the identity of the client

may be unclear under the law of a particular jurisdiction. Under one view, the client

is the fiduciary; under another view the client is the estate or trust, including its

beneficiaries. In order to comply with conflict of interest rules, the lawyer should

make clear the lawyer’s relationship to the parties involved.

[28] Whether a conflict is consentable depends on the circumstances. For

example, a lawyer may not represent multiple parties to a negotiation whose interests

are fundamentally antagonistic to each other, but common representation is

permissible where the clients are generally aligned in interest even though there is

some difference in interest among them

er’s relationship to the parties involved.

[28] Whether a conflict is consentable depends on the circumstances. For

example, a lawyer may not represent multiple parties to a negotiation whose interests

are fundamentally antagonistic to each other, but common representation is

permissible where the clients are generally aligned in interest even though there is

some difference in interest among them. Thus, a lawyer may seek to establish or

adjust a relationship between clients on an amicable and mutually advantageous

basis; for example, in helping to organize a business in which two or more clients are

entrepreneurs, working out the financial reorganization of an enterprise in which two

or more clients have an interest or arranging a property distribution in settlement of

an estate. The lawyer seeks to resolve potentially adverse interests by developing the

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parties’ mutual interests. Otherwise, each party might have to obtain separate

representation, with the possibility of incurring additional cost, complication or even

litigation. Given these and other relevant factors, the clients may prefer that the

lawyer act for all of them.

Special Considerations in Common Representation

[29] In considering whether to represent multiple clients in the same matter, a

lawyer should be mindful that if the common representation fails because the

potentially adverse interests cannot be reconciled, the result can be additional cost,

embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw

from representing all of the clients if the common representation fails. In some

situations, the risk of failure is so great that multiple representation is plainly

impossible. For example, a lawyer cannot undertake common representation of

clients where contentious litigation or negotiations between them are imminent or

contemplated

recrimination. Ordinarily, the lawyer will be forced to withdraw

from representing all of the clients if the common representation fails. In some

situations, the risk of failure is so great that multiple representation is plainly

impossible. For example, a lawyer cannot undertake common representation of

clients where contentious litigation or negotiations between them are imminent or

contemplated. Moreover, because the lawyer is required to be impartial between

commonly represented clients, representation of multiple clients is improper when

it is unlikely that impartiality can be maintained. Generally, if the relationship

between the parties has already assumed antagonism, the possibility that the clients’

interests can be adequately served by common representation is not very good. Other

relevant factors are whether the lawyer subsequently will represent both parties on

a continuing basis and whether the situation involves creating or terminating a

relationship between the parties.

[30] A particularly important factor in determining the appropriateness of

common representation is the effect on client-lawyer confidentiality and the attorney-

client privilege. With regard to the attorney-client privilege, the prevailing rule is

that, as between commonly represented clients, the privilege generally does not

attach. Hence, it should generally be assumed that if litigation eventuates between the

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

be so advised.

[31] As to the duty of confidentiality, continued common representation will

almost certainly be inadequate if one client asks the lawyer not to disclose to the

other client information relevant to the common representation. This is so because

the lawyer has an equal duty of loyalty to each client, and each client has the right to

be informed of anything bearing on the representation that might affect that client’s

interests and the right to expect that the lawyer will use that information to that

client’s benefit

nt asks the lawyer not to disclose to the

other client information relevant to the common representation. This is so because

the lawyer has an equal duty of loyalty to each client, and each client has the right to

be informed of anything bearing on the representation that might affect that client’s

interests and the right to expect that the lawyer will use that information to that

client’s benefit. See Rule 1.4. The lawyer should, at the outset of the common

representation and as part of the process of obtaining each client’s informed consent,

advise each client that information will be shared and that the lawyer will have to

withdraw if one client decides that some matter material to the representation should

be kept from the other. In limited circumstances, it may be appropriate for the lawyer

to proceed with the representation when the clients have agreed, after being properly

informed, that the lawyer will keep certain information confidential. For example, the

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lawyer may reasonably conclude that failure to disclose one client’s trade secrets to

another client will not adversely affect representation involving a joint venture

between the clients and agree to keep that information confidential with the informed

consent of both clients.

[32] When seeking to establish or adjust a relationship between clients, the

lawyer should make clear that the lawyer’s role is not that of partisanship normally

expected in other circumstances and, thus, that the clients may be required to assume

greater responsibility for decisions than when each client is separately represented.

Any limitations on the scope of the representation made necessary as a result of the

common representation should be fully explained to the clients at the outset of the

representation. See Rule 1.2(c).

[33] Subject to the above limitations, each client in the common representation

has the right to loyal and diligent representation and the protection of Rule 1.9

concerning the obligations to a former client

ations on the scope of the representation made necessary as a result of the

common representation should be fully explained to the clients at the outset of the

representation. See Rule 1.2(c).

[33] Subject to the above limitations, each client in the common representation

has the right to loyal and diligent representation and the protection of Rule 1.9

concerning the obligations to a former client. The client also has the right to

discharge the lawyer as stated in Rule 1.16.

Organizational Clients

[34] A lawyer who represents a corporation or other organization does not, by

virtue of that representation, necessarily represent any constituent or affiliated

organization, such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for

an organization is not barred from accepting representation adverse to an affiliate in

an unrelated matter, unless the circumstances are such that the affiliate should also

be considered a client of the lawyer, there is an understanding between the lawyer

and the organizational client that the lawyer will avoid representation adverse to the

client’s affiliates, or the lawyer’s obligations to either the organizational client or the

new client are likely to limit materially the lawyer’s representation of the other client.

[35] A lawyer for a corporation or other organization who is also a member of its

board of directors should determine whether the responsibilities of the two roles may

conflict. The lawyer may be called on to advise the corporation in matters involving

actions of the directors. Consideration should be given to the frequency with which

such situations may arise, the potential intensity of the conflict, the effect of the

lawyer’s resignation from the board and the possibility of the corporation’s obtaining

legal advice from another lawyer in such situations

es may

conflict. The lawyer may be called on to advise the corporation in matters involving

actions of the directors. Consideration should be given to the frequency with which

such situations may arise, the potential intensity of the conflict, the effect of the

lawyer’s resignation from the board and the possibility of the corporation’s obtaining

legal advice from another lawyer in such situations. If there is material risk that the

dual role will compromise the lawyer’s independence of professional judgment, the

lawyer should not serve as a director or should cease to act as the corporation’s

lawyer when conflicts of interest arise. The lawyer should advise the other members

of the board that in some circumstances matters discussed at board meetings while

the lawyer is present in the capacity of director might not be protected by the

attorney-client privilege and that conflict of interest considerations might require the

lawyer’s recusal as a director or might require the lawyer and the lawyer’s firm to

decline representation of the corporation in a matter.

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Adopted July 1, 2009, effective January 1, 2010.

RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC

RULES

(a) A lawyer shall not enter into a business transaction with a client or knowingly

acquire an ownership, possessory, security or other pecuniary interest adverse to a

client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair

and reasonable to the client and are fully disclosed and transmitted in writing in

a manner that can be reasonably understood by the client;

(2) the client is informed in writing that the client may seek the advice of

independent legal counsel on the transaction, and is given a reasonable

opportunity to do so; and

(3) the client gives informed consent, in a writing signed by the client, to the

essential terms of the transaction and the lawyer’s role in the transaction,

including whether the lawyer is representing the client in the transaction.

client is informed in writing that the client may seek the advice of

independent legal counsel on the transaction, and is given a reasonable

opportunity to do so; and

(3) the client gives informed consent, in a writing signed by the client, to the

essential terms of the transaction and the lawyer’s role in the transaction,

including whether the lawyer is representing the client in the transaction.

(b) A lawyer shall not use information relating to representation of a client to the

disadvantage of the client unless the client gives informed consent, except as

permitted or required by these Rules.

(c) A lawyer shall not solicit any substantial gift from a client, including a

testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or

a person related to the lawyer any substantial gift unless the lawyer 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 whom the lawyer or the client maintains a close, familial relationship.

(d) Prior to the conclusion of representation of a client, a lawyer shall not make

or negotiate an agreement giving the lawyer literary or media rights to a portrayal or

account based in substantial part on information relating to the representation.

(e) A lawyer shall not provide financial assistance to a client in connection with

pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the

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

(2) a lawyer representing an indigent client may pay court costs and expenses

of litigation on behalf of the client.

esentation.

(e) A lawyer shall not provide financial assistance to a client in connection with

pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the

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

(2) a lawyer representing an indigent client may pay court costs and expenses

of litigation on behalf of the client.

(f) A lawyer shall not accept compensation for representing a client from one

other than the client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer’s independence of professional

judgment or with the client-lawyer relationship; and

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(3) information relating to representation of a client is protected as required

by Rule 1.6.

(g) A lawyer 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 or nolo contendere pleas, unless each client

gives informed consent, in a writing signed by the client. The lawyer’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.

(h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer’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.

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.

(i) A lawyer shall not acquire a proprietary interest in the cause of action or

subject matter of litigation the lawyer is conducting for a client, except that the

lawyer may:

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

and

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

(j) A lawyer shall not have sexual relations with a client unless a consensual

sexual relationship existed between them when the client-lawyer relationship

commenced.

(k) While lawyers are associated in a firm, a prohibition in the foregoing

paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

Adopted July 1, 2009, effective January 1, 2010.

Comment

Business Transactions Between Client and Lawyer

[1] A lawyer’s legal skill and training, together with the relationship of trust and

confidence between lawyer and client, create the possibility of overreaching when the

lawyer participates in a business, property or financial transaction with a client, for

example, a loan or sales transaction or a lawyer investment on behalf of a client. The

requirements of paragraph (a) must be met even when the transaction is not closely

related to the subject matter of the representation, as when a lawyer 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 applies to lawyers engaged in the sale of goods

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saction or a lawyer investment on behalf of a client. The

requirements of paragraph (a) must be met even when the transaction is not closely

related to the subject matter of the representation, as when a lawyer 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 applies to lawyers engaged in the sale of goods

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or services related to the practice of law, for example, the sale of title insurance or

investment services to existing clients of the lawyer’s legal practice. It also applies

to lawyers purchasing property from estates they represent. It does not apply to

ordinary fee arrangements between client and lawyer, which are governed by Rule

1.5, although its requirements must be met when the lawyer accepts an interest in the

client’s business or other nonmonetary property as payment of all or part of a fee. In

addition, the Rule does not apply to standard commercial transactions between the

lawyer and the client for products or services that the client generally markets to

others, for example, banking or brokerage services, medical services, products

manufactured or distributed by the client, and utilities’ services. In such transactions,

the lawyer has no advantage in dealing with the client, and the restrictions in

paragraph (a) are unnecessary and impracticable.

[2] Paragraph (a)(1) requires that the transaction itself be fair to the client and that

its essential terms be communicated to the client, in writing, in a manner that can be

reasonably understood. Paragraph (a)(2) requires that the lawyer inform the client in

writing that the client may seek the advice of independent legal counsel and provide

a reasonable opportunity for the client to do so. Paragraph (a)(3) requires that the

lawyer obtain the client’s informed consent, in a writing signed by the client, both to

the essential terms of the transaction and to the lawyer’s role

bly understood. Paragraph (a)(2) requires that the lawyer inform the client in

writing that the client may seek the advice of independent legal counsel and provide

a reasonable opportunity for the client to do so. Paragraph (a)(3) requires that the

lawyer obtain the client’s informed consent, in a writing signed by the client, both to

the essential terms of the transaction and to the lawyer’s role. When necessary, the

lawyer should discuss both the material risks of the proposed transaction, including

any risk presented by the lawyer’s involvement, and the existence of reasonably

available alternatives and should explain why the advice of independent legal counsel

is desirable. See Rule 1.0(e) (definition of informed consent). The common law

regarding business transactions between lawyer and client may impose additional

requirements, such as encouraging the client to seek independent legal counsel, in

lawyer liability and other nondisciplinary contexts.

[3] The risk to a client is greatest when the client expects the lawyer to represent

the client in the transaction itself or when the lawyer’s financial interest otherwise

poses a significant risk that the lawyer’s representation of the client will be materially

limited by the lawyer’s financial interest in the transaction. Here the lawyer’s role

requires that the lawyer must comply, not only with the requirements of paragraph

(a), but also with the requirements of Rule 1.7. Under that Rule, the lawyer must

disclose the risks associated with the lawyer’s dual role as both legal adviser and

participant in the transaction, such as the risk that the lawyer will structure the

transaction or give legal advice in a way that favors the lawyer’s interests at the

expense of the client. Moreover, the lawyer must obtain the client’s informed

consent. In some cases, the lawyer’s interest may be such that Rule 1.7 will preclude

the lawyer from seeking the client’s consent to the transaction

and

participant in the transaction, such as the risk that the lawyer will structure the

transaction or give legal advice in a way that favors the lawyer’s interests at the

expense of the client. Moreover, the lawyer must obtain the client’s informed

consent. In some cases, the lawyer’s interest may be such that Rule 1.7 will preclude

the lawyer from seeking the client’s consent to the transaction.

[4] If the client is independently represented in the transaction, paragraph (a)(2)

of this Rule is inapplicable, and the paragraph (a)(1) requirement for full disclosure

is satisfied either by a written disclosure by the lawyer involved in the transaction or

by the client’s independent counsel. The fact that the client was independently

represented in the transaction is relevant in determining whether the agreement was

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fair and reasonable to the client as paragraph (a)(1) further requires.

Use of Information Related to Representation

[5] Use of information relating to the representation to the disadvantage of the

client violates the lawyer’s duty of loyalty. Paragraph (b) applies when the

information is used to benefit either the lawyer or a third person, such as another

client or business associate of the lawyer. For example, if a lawyer learns that a client

intends to purchase and develop several parcels of land, the lawyer may not use that

information to purchase one of the parcels in competition with the client or to

recommend that another client make such a purchase. The Rule does not prohibit

uses that do not disadvantage the client. For example, a lawyer who learns a

government agency’s interpretation of trade legislation during the representation of

one client may properly use that information to benefit other clients. Paragraph (b)

prohibits disadvantageous use of client information unless the client gives informed

consent, except as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c),

3.3, 4.1(b), 8.1 and 8.3

r example, a lawyer who learns a

government agency’s interpretation of trade legislation during the representation of

one client may properly use that information to benefit other clients. Paragraph (b)

prohibits disadvantageous use of client information unless the client gives informed

consent, except as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c),

3.3, 4.1(b), 8.1 and 8.3.

Gifts to Lawyers

[6] A lawyer may accept a gift from a client, if the transaction meets general

standards of fairness. For example, a simple gift such as a present given at a holiday

or as a token of appreciation is permitted. If a client offers the lawyer a more

substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although

such a gift may be voidable by the client under the doctrine of undue influence,

which treats client gifts as presumptively fraudulent. In any event, due to concerns

about overreaching and imposition on clients, a lawyer may not suggest that a

substantial gift be made to the lawyer or for the lawyer’s benefit, except where the

lawyer is related to the client as set forth in paragraph (c).

[7] If effectuation of a substantial gift requires preparing a legal instrument such

as a will or conveyance the client should have the detached advice that another

lawyer can provide. The sole exception to this Rule is where the client is a relative

of the donee.

[8] This Rule does not prohibit a lawyer from seeking to have the lawyer or a

partner or associate of the lawyer named as executor of the client’s estate or to

another potentially lucrative fiduciary position. Nevertheless, such appointments will

be subject to the general conflict of interest provision in Rule 1.7 when there is a

significant risk that the lawyer’s interest in obtaining the appointment will materially

limit the lawyer’s independent professional judgment in advising the client

concerning the choice of an executor or other fiduciary

e or to

another potentially lucrative fiduciary position. Nevertheless, such appointments will

be subject to the general conflict of interest provision in Rule 1.7 when there is a

significant risk that the lawyer’s interest in obtaining the appointment will materially

limit the lawyer’s independent professional judgment in advising the client

concerning the choice of an executor or other fiduciary. In obtaining the client’s

informed consent to the conflict, the lawyer should advise the client concerning the

nature and extent of the lawyer’s financial interest in the appointment, as well as the

availability of alternative candidates for the position.

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Literary Rights

[9] An agreement by which a lawyer acquires literary or media rights concerning

the conduct of the representation creates a conflict between the interests of the client

and the personal interests of the lawyer. Measures suitable in the representation of

the client may detract from the publication value of an account of the representation.

Paragraph (d) does not prohibit a lawyer representing a client in a transaction

concerning literary property from agreeing that the lawyer’s fee shall consist of a

share in ownership in the property, if the arrangement conforms to Rule 1.5 and

paragraphs (a) and (i).

Financial Assistance

[10] Lawyers 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 lawyers too great

a financial stake in the litigation. These dangers do not warrant a prohibition on a

lawyer lending a client court costs and litigation expenses, including the expenses of

medical examination and the costs of obtaining and presenting evidence, because

these advances are virtually indistinguishable from contingent fees and help ensure

access to the courts

use such assistance gives lawyers too great

a financial stake in the litigation. These dangers do not warrant a prohibition on a

lawyer lending a client court costs and litigation expenses, including the expenses of

medical examination and the costs of obtaining and presenting evidence, because

these advances are virtually indistinguishable from contingent fees and help ensure

access to the courts. Similarly, an exception allowing lawyers representing indigent

clients to pay court costs and litigation expenses regardless of whether these funds

will be repaid is warranted.

Person Paying for a Lawyer’s Services

[11] Lawyers are frequently asked to represent a client under circumstances in

which a third person will compensate the lawyer, 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, lawyers are

prohibited from accepting or continuing such representations unless the lawyer

determines that there will be no interference with the lawyer’s independent

professional judgment and there is informed consent from the client. See also Rule

5.4(c) (prohibiting interference with a lawyer’s professional judgment by one who

recommends, employs or pays the lawyer to render legal services for another).

[12] Sometimes, it will be sufficient for the lawyer to obtain the client’s informed

consent regarding the fact of the payment and the identity of the third-party payer. If,

however, the fee arrangement creates a conflict of interest for the lawyer, then the

lawyer must comply with Rule. 1.7. The lawyer must also conform to the

requirements of Rule 1.6 concerning confidentiality. Under Rule 1.7(a), a conflict of

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ill be sufficient for the lawyer to obtain the client’s informed

consent regarding the fact of the payment and the identity of the third-party payer. If,

however, the fee arrangement creates a conflict of interest for the lawyer, then the

lawyer must comply with Rule. 1.7. The lawyer must also conform to the

requirements of Rule 1.6 concerning confidentiality. Under Rule 1.7(a), a conflict of

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interest exists if there is significant risk that the lawyer’s representation of the client

will be materially limited by the lawyer’s own interest in the fee arrangement or by

the lawyer’s responsibilities to the third-party payer (for example, when the third-

party payer is a co-client). Under Rule 1.7(b), the lawyer may accept or continue the

representation with the informed consent of each affected client, unless the conflict

is nonconsentable under that paragraph.

Aggregate Settlements

[13] Differences in willingness to make or accept an offer of settlement are

among the risks of common representation of multiple clients by a single lawyer.

Under Rule 1.7, this is one of the risks that should be discussed before undertaking

the representation, as part of the process of obtaining the clients’ informed consent.

In addition, Rule 1.2(a) protects each client’s right to have the final say in deciding

whether to accept or reject an offer of settlement and in deciding whether to enter a

guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph is

a corollary of both these Rules and provides that, before any settlement offer or plea

bargain is made or accepted on behalf of multiple clients, the lawyer must inform

each of them about all the material terms of the settlement, including what the other

clients will receive or pay if the settlement or plea offer is accepted. See also Rule

1.0(e) (definition of informed consent)

this paragraph is

a corollary of both these Rules and provides that, before any settlement offer or plea

bargain is made or accepted on behalf of multiple clients, the lawyer must inform

each of them about all the material terms of the settlement, including what the other

clients will receive or pay if the settlement or plea offer is accepted. See also Rule

1.0(e) (definition of informed consent). Lawyers representing a class of plaintiffs or

defendants, or those proceeding derivatively, may not have a full client-lawyer

relationship with each member of the class; nevertheless, such lawyers must comply

with applicable rules regulating notification of class members and other procedural

requirements designed to ensure adequate protection of the entire class.

Limiting Liability and Settling Malpractice Claims

[14] Agreements prospectively limiting a lawyer’s liability for malpractice are

prohibited unless the client is independently represented in making the agreement

because they are likely to undermine competent and diligent representation. Also,

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 lawyer

seeking the agreement. This paragraph does not, however, prohibit a lawyer from

entering into an agreement with the client to arbitrate legal malpractice claims,

provided such agreements are enforceable and the client is fully informed of the

scope and effect of the agreement. Nor does this paragraph limit the ability of lawyers

to practice in the form of a limited-liability entity, where permitted by law, provided

that each lawyer remains personally liable to the client for his or her own conduct and

the firm complies with any conditions required by law, such as provisions requiring

client notification or maintenance of adequate liability insurance

ct of the agreement. Nor does this paragraph limit the ability of lawyers

to practice in the form of a limited-liability entity, where permitted by law, provided

that each lawyer remains personally liable to the client for his or her own conduct and

the firm complies with any conditions required by law, such as provisions requiring

client notification or maintenance of adequate liability insurance. Nor does it prohibit

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

representation, although a definition of scope that makes the obligations of

representation illusory will amount to an attempt to limit liability.

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[15] Agreements settling a claim or a potential claim for malpractice are not

prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take

unfair advantage of an unrepresented client or former client, the lawyer must first

advise such a person in writing of the appropriateness of independent representation

in connection with such a settlement. In addition, the lawyer must give the client or

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

Acquiring Proprietary Interest in Litigation

[16] Paragraph (i) states the traditional general rule that lawyers are prohibited

from acquiring a proprietary interest in litigation. Like paragraph (e), the general rule

has its basis in common law champerty and maintenance and is designed to avoid

giving the lawyer too great an interest in the representation. In addition, when the

lawyer acquires an ownership interest in the subject of the representation, it will be

more difficult for a client to discharge the lawyer if the client so desires. The Rule is

subject to specific exceptions developed in decisional law and continued in these

Rules. The exception for certain advances of the costs of litigation is set forth in

paragraph (e)

the representation. In addition, when the

lawyer acquires an ownership interest in the subject of the representation, it will be

more difficult for a client to discharge the lawyer if the client so desires. The Rule is

subject to specific exceptions developed in decisional law and continued in these

Rules. The exception for certain advances of the costs of litigation is set forth in

paragraph (e). In addition, paragraph (i) sets forth exceptions for liens authorized by

law to secure the lawyer’s fees or expenses and contracts for reasonable contingent

fees. The law of each jurisdiction determines which liens are authorized by law.

These may include liens granted by statute, liens originating in common law and liens

acquired by contract with the client. When a lawyer acquires by contract a security

interest in property other than that recovered through the lawyer’s efforts in the

litigation, such an acquisition is a business or financial transaction with a client and

is governed by the requirements of paragraph (a). Contracts for contingent fees in

civil cases are governed by Rule 1.5.

Client-Lawyer Sexual Relationships

[17] The relationship between lawyer and client is a fiduciary one in which the

lawyer occupies the highest position of trust and confidence. The relationship is

almost always unequal; thus, a sexual relationship between lawyer and client can

involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s

basic ethical obligation not to use the trust of the client to the client’s disadvantage.

In addition, such a relationship presents a significant danger that, because of the

lawyer’s emotional involvement, the lawyer will be unable to represent the client

without impairment of the exercise of independent professional judgment

xploitation of the lawyer’s fiduciary role, in violation of the lawyer’s

basic ethical obligation not to use the trust of the client to the client’s disadvantage.

In addition, such a relationship presents a significant danger that, because of the

lawyer’s emotional involvement, the lawyer will be unable to represent the client

without impairment of the exercise of independent professional judgment. Moreover,

a blurred line between the professional and personal relationships may make it

difficult to predict to what extent client confidences will be protected by the attorney-

client evidentiary privilege, since client confidences are protected by privilege only

when they are imparted in the context of the client-lawyer relationship. Because of

the significant danger of harm to client interests and because the client’s own

emotional involvement renders it unlikely that the client could give adequate

informed consent, this Rule prohibits the lawyer from having sexual relations with

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a client regardless of whether the relationship is consensual and regardless of the

absence of prejudice to the client.

[18] Sexual relationships that predate the client-lawyer relationship are not

prohibited. Issues relating to the exploitation of the fiduciary relationship and client

dependency are diminished when the sexual relationship existed prior to the

commencement of the client-lawyer relationship. However, before proceeding with

the representation in these circumstances, the lawyer should consider whether the

lawyer’s ability to represent the client will be materially limited by the relationship.

See Rule 1.7(a)(2).

[19] When the client is an organization, paragraph (j) of this Rule prohibits a

lawyer for the organization (whether inside counsel or outside counsel) from having

a sexual relationship with a constituent of the organization who supervises, directs

or regularly consults with that lawyer concerning the organization’s legal matters

will be materially limited by the relationship.

See Rule 1.7(a)(2).

[19] When the client is an organization, paragraph (j) of this Rule prohibits a

lawyer for the organization (whether inside counsel or outside counsel) from having

a sexual relationship with a constituent of the organization who supervises, directs

or regularly consults with that lawyer concerning the organization’s legal matters.

Imputation of Prohibitions

[20] Under paragraph (k), a prohibition on conduct by an individual lawyer in

paragraphs (a) through (i) also applies to all lawyers associated in a firm with the

personally prohibited lawyer. For example, one lawyer in a firm may not enter into

a business transaction with a client of another member of the firm without complying

with paragraph (a), even if the first lawyer is not personally involved in the

representation of the client. The prohibition set forth in paragraph (j) is personal and

is not applied to associated lawyers.

Adopted July 1, 2009, effective January 1, 2010.

RULE 1.9: DUTIES TO FORMER CLIENTS

(a) A lawyer 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.

(b) A lawyer shall not knowingly represent a person in the same or a substantially

related matter in which a firm with which the lawyer formerly was associated had

previously represented a client

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

(2) about whom the lawyer had acquired information protected by Rules 1.6

and 1.9(c) that is material to the matter; unless the former client gives informed

consent.

nowingly represent a person in the same or a substantially

related matter in which a firm with which the lawyer form

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