Rule 1.0. DEFINITIONS AND TERMINOLOGY

DEFINITIONS AND TERMINOLOGY

As used in these Rules, the following terms shall have the following

meanings:

(a)

“Belief” or “believes” means 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,” referring to the informed consent of a

person means informed consent given in writing by the person or a

writing 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” means a lawyer or lawyers in a law

partnership, professional corporation, sole proprietorship or other

association authorized to practice law; lawyers employed by the

government to represent the government or a governmental entity;

or lawyers in a legal services organization or the legal department of

a corporation or other organization.

(d)

“Fraud” or “fraudulent” means conduct fraudulent under the

substantive or procedural law of the applicable jurisdiction and for

the purpose to deceive.

(e)

“Informed consent” means a person’s agreement 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.

Whether a client has given informed consent to representation shall

be determined in light of the mental capacity of the client to give

consent, the explanation of the advantages and risks involved

provided by the lawyer seeking consent, the circumstances under

which the explanation was provided and the consent obtained, the

experience of the client in legal matters generally, and any other

circumstances bearing on whether the client has made a reasoned

and deliberate choice.

ht of the mental capacity of the client to give

consent, the explanation of the advantages and risks involved

provided by the lawyer seeking consent, the circumstances under

which the explanation was provided and the consent obtained, the

experience of the client in legal matters generally, and any other

circumstances bearing on whether the client has made a reasoned

and deliberate choice.

(f)

“Knowingly,” “known,” or “knows” means actual knowledge of the

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

circumstances.

(g)

“Partner” means 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 referring to a lawyer’s

conduct means the conduct of a reasonably prudent and competent

lawyer.

(i)

“Reasonable belief” or “reasonably believes” when referring to a

lawyer means the lawyer believes the matter in question and the

circumstances are such that the belief is reasonable.

(j)

“Reasonably should know” when referring to a lawyer means a

lawyer of reasonable prudence and competence would ascertain the

matter in question.

(k)

“Screened” means the isolation of a lawyer from any participation

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

reasonably adequate under the circumstances to protect information

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

law.

(l)

“Substantial” when referring to degree or extent means a material

matter of clear and weighty importance.

)

“Screened” means the isolation of a lawyer from any participation

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

reasonably adequate under the circumstances to protect information

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

law.

(l)

“Substantial” when referring to degree or extent means a material

matter of clear and weighty importance.

(m)

“Tribunal” means a court, an arbitrator in a binding arbitration

proceeding or a legislative body, administrative agency or other body

acting in an adjudicative capacity. A legislative body, administrative

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

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

party or parties, will render a binding legal judgment directly

affecting a party’s interests in a particular matter.

(n)

“Writing” or “written” means a tangible or electronic record of a

communication or representation, including, but not limited to,

handwriting, typewriting, printing, Photostatting, 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.

(o)

“Advance,” “advance payment of fees,” or “retainer” means a

payment by a client in anticipation of the future rendition of services

that is not earned until such services are rendered and that is to be

credited toward the fees earned when such future services are

rendered.

or logically

associated with a writing and executed or adopted by a person with

the intent to sign the writing.

(o)

“Advance,” “advance payment of fees,” or “retainer” means a

payment by a client in anticipation of the future rendition of services

that is not earned until such services are rendered and that is to be

credited toward the fees earned when such future services are

rendered.

(p)

“Nonrefundable fee” means a fee paid to an attorney and earned

by the attorney before professional services are rendered. Such a

nonrefundable fee may be in exchange for retaining the attorney’s

availability alone or may be in exchange also for the right to receive

specified services in the future for no additional fee, or for a stated

fee.

COMMENT

Confirmed in Writing

[1]

If it is not feasible to obtain or transmit a written confirmation at

the time the client gives informed consent, then the lawyer must obtain or

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

client’s informed consent, the lawyer may act in reliance on that consent so

long as it is confirmed in writing within a reasonable time thereafter.

Firm

[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

ers who share

office space and occasionally consult or assist each other ordinarily would not

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

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

firm, they should be regarded as a firm for purposes of the Rules. The terms

of any formal agreement between associated lawyers are relevant in

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

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

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

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

same lawyer should not represent opposing parties in litigation, while it might

not be so regarded for purposes of the Rule that information acquired by one

lawyer is attributed to another.

[3]

With respect to the law department of an organization, including

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

department constitute a firm within the meaning of the Rules of Professional

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

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

represents a subsidiary or an affiliated corporation, as well as the corporation

by which the members of the department are directly employed. A similar

question can arise concerning an unincorporated association and its local

affiliates.

[4]

Similar questions can also arise with respect to lawyers in legal

aid and legal services organizations. Depending upon the structure of the

organization, the entire organization or different components of it may

constitute a firm or firms for purposes of these Rules.

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. 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

uate 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. In determining

whether the information and explanation provided are reasonably adequate,

relevant factors include whether the client or other person is experienced in

legal matters generally and in making decisions of the type involved, and

whether the client or other person is independently represented by other

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

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

independently represented by other counsel in giving the consent should be

assumed to have given informed consent.

[7]

Obtaining informed consent will usually require an affirmative

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

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

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

adequate information about the matter. A number of Rules require that a

person’s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a

definition of “writing” and “confirmed in writing,” see paragraphs (n) and (b)

yer may not assume

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

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

adequate information about the matter. A number of Rules require that a

person’s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a

definition of “writing” and “confirmed in writing,” see paragraphs (n) and (b).

Other Rules require that a client’s consent be obtained in a writing signed by

the client. See, e.g., Rules 1.8(a) and (g). For a definition of “signed,” see

paragraph (n).

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 1.11, 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 t

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.

[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.