DR 4-101. PRESERVATION OF CONFIDENCES AND SECRETS OF A CLIENT

"Confidence" refers to information protected by the attorney-client privilege under

applicable law, and "secret" refers to other information gained in the professional relationship

that the client has requested be held inviolate or the disclosure of which would be embarrassing

or would be likely to be detrimental to the client.

(B)

Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

(1)

Reveal a confidence or secret of his client.

(2)

Use a confidence or secret of his client to the disadvantage of the client.

(3)

Use a confidence or secret of his client for the advantage of himself or of a third

person, unless the client consents after full disclosure.

(C)

A lawyer may reveal:

(1)

Confidences or secrets with the consent of the client or clients affected, but only

after a full disclosure to them.

(2)

Confidences or secrets when permitted under Disciplinary Rules or required by

law or court order.

(3)

The intention of his client to commit a crime and the information necessary to

prevent the crime.

(4)

Confidences or secrets necessary to establish or collect his fee or to defend

himself or his employees or associates against an accusation of wrongful conduct.

(D)

A lawyer shall exercise reasonable care to prevent his employees, associates, and

others whose services are utilized by him from disclosing or using confidences or secrets of a

client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an

employee.

CANON 5

A Lawyer Should Exercise Independent Professional

Judgment on Behalf of a Client

ETHICAL CONSIDERATIONS

EC 5-1 The professional judgment of a lawyer should be exercised, within the bounds of the

law, solely for the benefit of his client and free of compromising influences and loyalties.

Neither his personal interests, the interests of other clients, nor the desires of third persons should

be permitted to dilute his loyalty to his client.

Interests of a Lawyer That May Affect His Judgment

ONS

EC 5-1 The professional judgment of a lawyer should be exercised, within the bounds of the

law, solely for the benefit of his client and free of compromising influences and loyalties.

Neither his personal interests, the interests of other clients, nor the desires of third persons should

be permitted to dilute his loyalty to his client.

Interests of a Lawyer That May Affect His Judgment

EC 5-2 A lawyer should not accept proffered employment if his personal interests or desires

will, or there is a reasonable probability that they will, affect adversely the advice to be given or

services to be rendered the prospective client. After accepting employment, a lawyer carefully

should refrain from acquiring a property right or assuming a position that would tend to make his

judgment less protective of the interests of his client.

EC 5-3 The self-interest of a lawyer resulting from his ownership of property in which his

client also has an interest or which may affect property of his client may interfere with the

exercise of free judgment on behalf of his client. If such interference would occur with respect to

a prospective client, a lawyer should decline employment proffered by him. After accepting

employment, a lawyer should not acquire property rights that would adversely affect his

professional judgment in the representation of his client. Even if the property interests of a

lawyer do not presently interfere with the exercise of his independent judgment, but the

likelihood of interference can reasonably be foreseen by him, a lawyer should explain the

situation to his client and should decline employment or withdraw unless the client consents to

the continuance of the relationship after full disclosure. A lawyer should not seek to persuade his

client to permit him to invest in an undertaking of his client nor make improper use of his

professional relationship to influence his client to invest in an enterprise in which the lawyer is

interested.

ation to his client and should decline employment or withdraw unless the client consents to

the continuance of the relationship after full disclosure. A lawyer should not seek to persuade his

client to permit him to invest in an undertaking of his client nor make improper use of his

professional relationship to influence his client to invest in an enterprise in which the lawyer is

interested.

EC 5-4 If, in the course of his representation of a client, a lawyer is permitted to receive from

his client a beneficial ownership in publication rights relating to the subject matter of the

employment, he may be tempted to subordinate the interests of his client to his own anticipated

pecuniary gain. For example, a lawyer in a criminal case who obtains from his client television,

radio, motion picture, newspaper, magazine, book, or other publication rights with respect to the

case may be influenced, consciously or unconsciously, to a course of conduct that will enhance

the value of his publication rights to the prejudice of his client. To prevent these potentially

differing interests, such arrangements should be scrupulously avoided prior to the termination of

all aspects of the matter giving rise to the employment, even though his employment has

previously ended.

EC 5-5 A lawyer should not suggest to the lawyer’s client that a gift be made to the lawyer or

for the lawyer’s benefit. If a lawyer accepts a gift from the lawyer’s client, the lawyer is

peculiarly susceptible to the charge that the lawyer unduly influenced or overreached the client. If

a client voluntarily offers to make a gift to the client’s lawyer, the lawyer may accept the gift, but

before doing so, the lawyer should urge that the client secure disinterested advice from an

independent, competent person who is cognizant of all the circumstances

wyer’s client, the lawyer is

peculiarly susceptible to the charge that the lawyer unduly influenced or overreached the client. If

a client voluntarily offers to make a gift to the client’s lawyer, the lawyer may accept the gift, but

before doing so, the lawyer should urge that the client secure disinterested advice from an

independent, competent person who is cognizant of all the circumstances. Unless the client is

related by blood or marriage, a lawyer should insist that an instrument in which the lawyer’s

client desires to name the lawyer beneficially be prepared by another lawyer selected by the

client.

EC 5-6 A lawyer should not consciously influence a client to name him as executor, trustee, or

lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care

should be taken by the lawyer to avoid even the appearance of impropriety.

EC 5-7 The possibility of an adverse effect upon the exercise of free judgment by a lawyer on

behalf of his client during litigation generally makes it undesirable for the lawyer to acquire a

proprietary interest in the cause of his client or otherwise to become financially interested in the

outcome of the litigation. However, it is not improper for a lawyer to protect his right to collect a

fee for his services by the assertion of legally permissible liens, even though by doing so he may

acquire an interest in the outcome of litigation. Although a contingent fee arrangement gives a

lawyer a financial interest in the outcome of litigation, a reasonable contingent fee is permissible

in civil cases because it may be the only means by which a layman can obtain the services of a

lawyer of his choice. But a lawyer, because he is in a better position to evaluate a cause of

action, should enter into a contingent fee arrangement only in those instances where the

arrangement will be beneficial to the client.

n the outcome of litigation, a reasonable contingent fee is permissible

in civil cases because it may be the only means by which a layman can obtain the services of a

lawyer of his choice. But a lawyer, because he is in a better position to evaluate a cause of

action, should enter into a contingent fee arrangement only in those instances where the

arrangement will be beneficial to the client.

EC 5-8 A financial interest in the outcome of litigation also results if monetary advances are

made by the lawyer to his client. Although this assistance generally is not encouraged, there are

instances when it is not improper to make loans to a client. For example, the advancing or

guaranteeing of payment of the costs and expenses of litigation by a lawyer may be the only way

a client can enforce his cause of action, but the ultimate liability for such costs and expenses

must be that of the client.

EC 5-9 Occasionally a lawyer is called upon to decide in a particular case whether he will be a

witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily

impeachable for interest and thus may be a less effective witness. Conversely, the opposing

counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also

appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and

ineffective position of arguing his own credibility. The roles of an advocate and of a witness are

inconsistent; the function of an advocate is to advance or argue the cause of another, while that

of a witness is to state facts objectively.

hallenging the credibility of the lawyer when the lawyer also

appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and

ineffective position of arguing his own credibility. The roles of an advocate and of a witness are

inconsistent; the function of an advocate is to advance or argue the cause of another, while that

of a witness is to state facts objectively.

EC 5-10 Problems incident to the lawyer-witness relationship arise at different stages; they

relate either to whether a lawyer should accept employment or should withdraw from

employment. Regardless of when the problem arises, his decision is to be governed by the same

basic considerations. It is not objectionable for a lawyer who is a potential witness to be an

advocate if it is unlikely that he will be called as a witness because his testimony would be

merely cumulative or if his testimony will relate only to an uncontested issue. In the exceptional

situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to

withdraw when he will likely be a witness on a contested issue, he may serve as advocate even

though he may be a witness. In making such decision, he should determine the personal or

financial sacrifice of the client that may result from his refusal of employment or withdrawal

therefrom, the materiality of his testimony, and the effectiveness of his representation in view of

his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal

will impose an unreasonable hardship upon the client before the lawyer accepts or continues the

employment. Where the question arises, doubts should be resolved in favor of the lawyer

testifying and against his becoming or continuing as an advocate.

effectiveness of his representation in view of

his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal

will impose an unreasonable hardship upon the client before the lawyer accepts or continues the

employment. Where the question arises, doubts should be resolved in favor of the lawyer

testifying and against his becoming or continuing as an advocate.

EC 5-11 A lawyer should not permit his personal interests to influence his advice relative to a

suggestion by his client that additional counsel be employed. In like manner, his personal

interests should not deter him from suggesting that additional counsel be employed; on the

contrary, he should be alert to the desirability of recommending additional counsel when, in his

judgment, the proper representation of his client requires it. However, a lawyer should advise his

client not to employ additional counsel suggested by the client if the lawyer believes that such

employment would be a disservice to the client, and he should disclose the reasons for his belief.

EC 5-12 Inability of co-counsel to agree on a matter vital to the representation of their client

requires that their disagreement be submitted by them jointly to their client for his resolution, and

the decision of the client shall control the action to be taken.

EC 5-13 A lawyer should not maintain membership in or be influenced by any organization of

employees that undertakes to prescribe, direct, or suggest when or how he should fulfill his

professional obligations to a person or organization that employs him as a lawyer. Although it is

not necessarily improper for a lawyer employed by a corporation or similar entity to be a member

of an organization of employees, he should be vigilant to safeguard his fidelity as a lawyer to his

employer free from outside influences.

Interests of Multiple Clients

or how he should fulfill his

professional obligations to a person or organization that employs him as a lawyer. Although it is

not necessarily improper for a lawyer employed by a corporation or similar entity to be a member

of an organization of employees, he should be vigilant to safeguard his fidelity as a lawyer to his

employer free from outside influences.

Interests of Multiple Clients

EC 5-14 Maintaining the independence of professional judgment required of a lawyer precludes

his acceptance or continuation of employment that will adversely affect his judgment on behalf

of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent

two or more clients who may have differing interests, whether such interests be conflicting,

inconsistent, diverse, or otherwise discordant.

EC 5-15 If a lawyer is requested to undertake or to continue representation of multiple clients

having potentially differing interests, he must weigh carefully the possibility that his judgment

may be impaired or his loyalty divided if he accepts or continues the employment. He should

resolve all doubts against the propriety of the representation. A lawyer should never represent in

litigation multiple clients with differing interests; and there are few situations in which he would

be justified in representing in litigation multiple clients with potentially differing interests. If a

lawyer accepted such employment and the interests did become actually differing, he would have

to withdraw from employment with likelihood of resulting hardship on the clients; and for this

reason it is preferable that he refuse the employment initially. On the other hand, there are many

instances in which a lawyer may properly serve multiple clients having potentially differing

interests in matters not involving litigation

and the interests did become actually differing, he would have

to withdraw from employment with likelihood of resulting hardship on the clients; and for this

reason it is preferable that he refuse the employment initially. On the other hand, there are many

instances in which a lawyer may properly serve multiple clients having potentially differing

interests in matters not involving litigation. If the interests vary only slightly, it is generally

likely that the lawyer will not be subjected to an adverse influence and that he can retain his

independent judgment on behalf of each client; and if the interests become differing, withdrawal

is less likely to have a disruptive effect upon the causes of his clients.

EC 5-16 A lawyer representing a fiduciary that owes fiduciary duties to third parties does not

solely by representation of the fiduciary engage in multiple representation even if the third

parties’ interests conflict with the interests of the fiduciary or other third parties. As used in this

Ethical Consideration, “fiduciary” includes only a trustee under an express trust or an executor,

administrator, or personal representative.

EC 5-17 In those instances in which a lawyer is justified in representing two or more clients

having differing interests, it is nevertheless essential that each client be given the opportunity to

evaluate his need for representation free of any potential conflict and to obtain other counsel if he

so desires. Thus before a lawyer may represent multiple clients, he should explain fully to each

client the implications of the common representation and should accept or continue employment

only if the clients consent. If there are present other circumstances that might cause any of the

multiple clients to question the undivided loyalty of the lawyer, he should also advise all of the

clients of those circumstances.

a lawyer may represent multiple clients, he should explain fully to each

client the implications of the common representation and should accept or continue employment

only if the clients consent. If there are present other circumstances that might cause any of the

multiple clients to question the undivided loyalty of the lawyer, he should also advise all of the

clients of those circumstances.

EC 5-18 Typically recurring situations involving potentially differing interests are those in which

a lawyer is asked to represent co-defendants in a criminal case, co-plaintiffs in a personal injury

case, an insured and his insurer, and beneficiaries of the estate of a decedent. Whether a lawyer

can fairly and adequately protect the interests of multiple clients in these and similar situations

depends upon an analysis of each case. In certain circumstances, there may exist little chance of

the judgment of the lawyer being adversely affected by the slight possibility that the interests will

become actually differing; in other circumstances, the chance of adverse effect upon his

judgment is not unlikely.

EC 5-19 A lawyer employed or retained by a corporation or similar entity owes his allegiance to

the entity and not to a stockholder, director, officer, employee, representative, or other person

connected with the entity. In advising the entity, a lawyer should keep paramount its interests

and his professional judgment should not be influenced by the personal desires of any person or

organization. Occasionally, a lawyer for an entity is requested by a stockholder, director, officer,

employee, representative, or other person connected with the entity to represent him in an

individual capacity; in such case the lawyer may serve the individual only if the lawyer is

convinced that differing interests are not present.

not be influenced by the personal desires of any person or

organization. Occasionally, a lawyer for an entity is requested by a stockholder, director, officer,

employee, representative, or other person connected with the entity to represent him in an

individual capacity; in such case the lawyer may serve the individual only if the lawyer is

convinced that differing interests are not present.

EC 5-20 A lawyer may represent several clients whose interests are not actually or potentially

differing. Nevertheless, he should explain any circumstances that might cause a client to

question his undivided loyalty. Regardless of the belief of a lawyer that he may properly

represent multiple clients, he must defer to a client who holds the contrary belief and withdraw

from representation of that client.

EC 5-21 A lawyer is often asked to serve as an impartial arbitrator or mediator in matters which

involve present or former clients. He may serve in either capacity if he first discloses such

present or former relationships. After a lawyer has undertaken to act as an impartial arbitrator or

mediator, he should not thereafter represent in the dispute any of the parties involved.

Desires of Third Persons

EC 5-22 The obligation of a lawyer to exercise professional judgment solely on behalf of his

client requires that he disregard the desires of others that might impair his free judgment. The

desires of a third person will seldom adversely affect a lawyer unless that person is in a position

to exert strong economic, political, or social pressures upon the lawyer. These influences are

often subtle, and a lawyer must be alert to their existence. A lawyer subjected to outside

pressures should make full disclosure of them to his client; and if he or his client believes that

the effectiveness of his representation has been or will be impaired thereby, the lawyer should

take proper steps to withdraw from representation of his client.

ssures upon the lawyer. These influences are

often subtle, and a lawyer must be alert to their existence. A lawyer subjected to outside

pressures should make full disclosure of them to his client; and if he or his client believes that

the effectiveness of his representation has been or will be impaired thereby, the lawyer should

take proper steps to withdraw from representation of his client.

EC 5-23 Economic, political, or social pressures by third persons are less likely to impinge upon

the independent judgment of a lawyer in a matter in which he is compensated directly by his

client and his professional work is exclusively with his client. On the other hand, if a lawyer is

compensated from a source other than his client, he may feel a sense of responsibility to someone

other than his client.

EC 5-24 A person or organization that pays or furnishes lawyers to represent others possesses a

potential power to exert strong pressures against the independent judgment of those lawyers.

Some employers may be interested in furthering their own economic, political, or social goals

without regard to the professional responsibility of the lawyer to his individual client. Others

may be far more concerned with establishment or extension of legal principles than in the

immediate protection of the rights of the lawyer's individual client. On some occasions,

decisions on priority of work may be made by the employer rather than the lawyer with the result

that prosecution of work already undertaken for clients is postponed to their detriment.

Similarly, an employer may seek, consciously or unconsciously, to further its own economic

interests through the actions of the lawyers employed by it. Since a lawyer must always be free

to exercise his professional judgment without regard to the interests or motives of a third person,

the lawyer who is employed by one to represent another must constantly guard against erosion of

his professional freedom.

employer may seek, consciously or unconsciously, to further its own economic

interests through the actions of the lawyers employed by it. Since a lawyer must always be free

to exercise his professional judgment without regard to the interests or motives of a third person,

the lawyer who is employed by one to represent another must constantly guard against erosion of

his professional freedom.

EC 5-25 To assist a lawyer in preserving his professional independence, a number of courses are

available to him. For example, a lawyer should not practice with or in the form of a professional

legal corporation, even though the corporate form is permitted by law, if any director, officer, or

stockholder of it is a non-lawyer. Although a lawyer may be employed by a business corporation

with non-lawyers serving as directors or officers, and they necessarily have the right to make

decisions of business policy, a lawyer must decline to accept direction of his professional

judgment from any layman. Various types of legal aid offices are administered by boards of

directors composed of lawyers and laymen. A lawyer should not accept employment from such

an organization unless the board sets only broad policies and there is no interference in the

relationship of the lawyer and the individual client he serves. Where a lawyer is employed by an

organization, a written agreement that defines the relationship between him and the organization

and provides for his independence is desirable since it may serve to prevent misunderstanding as

to their respective roles. Although other innovations in the means of supplying legal counsel

may develop, the responsibility of the lawyer to maintain his professional independence remains

constant, and the legal profession must insure that changing circumstances do not result in loss of

the professional independence of the lawyer.

DISCIPLINARY RULES