Rule 8: Code of Conduct. (2023)

Rule 8. Professional Rules. 🇧🇷Rule replaced in its entirety by resolution of September 29, 2010, effective January 1, 2011.

PREAMBLE AND SCOPE

PREAMBLE: ATTORNEY RESPONSIBILITIES

[1] The lawyer is the legal professional who practices a learned art in the service of the client and in the spirit of public service, pursuing these activities within the framework of a common vocation to promote justice and the common good. The essential qualities of the lawyer are legal knowledge, the ability to apply applicable law to the actual context, thorough preparation, practical and prudent wisdom, ethical and righteous conduct, and a commitment to justice and the common good.

[2] As a member of the legal profession, the lawyer is a client representative, an official of the legal system and a citizen of public life who bears a special responsibility for the quality of the judiciary.

[3] As a representative of the client, the lawyer fulfills several functions. As a consultant, a lawyer provides the client with a sound understanding of the client's legal rights and obligations and explains their practical implications. As a lawyer, the lawyer zealously defends the client's position according to the rules of the adversarial system. As a negotiator, the lawyer strives for an outcome that is beneficial to the client but consistent with the requirements of honest dealings with others. As an appraiser, an attorney acts by investigating a client's legal affairs and reporting them to the client or others.

[4] In addition to these representative roles, an attorney may act as a neutral third party, a non-representative role that helps parties resolve a dispute or other matter. Some of these rules apply directly to lawyers who act or have acted as neutral third parties.See for exampleRPC 1.12 and RPC 2.4. In addition, there are rules that apply to lawyers who do not practice law or practice law, even if they do not practice professionally. For example, an attorney who engages in fraud in the course of his business will be subject to disciplinary action if he engages in conduct involving dishonesty, fraud, deception or misrepresentation.verPR 8.4.

[5] The lawyer must be competent, quick and conscientious in all professional functions. An attorney must maintain communication with a client through representation. An attorney must keep confidential information related to representing a client, except where disclosure is required or permitted by professional ethics or other law.

[6] The behavior of the lawyer must comply with the legal requirements both in the professional activity and in the business and personal matters of the lawyer. An attorney may only use legal processes for lawful purposes and not to harass or intimidate others. An attorney must show respect for the legal system and those who serve it, including judges, other attorneys, and officials. While it is the attorney's duty to challenge the accuracy of the official act, if necessary, it is also the attorney's duty to pursue legal recourse.

[7] As a public citizen, the lawyer should strive to improve the law, access to the legal system, the administration of justice and the quality of the services provided by the legal profession. As a member of a learned profession, a lawyer must cultivate his knowledge of the law beyond its benefit to clients, apply that knowledge to law reform, and work to strengthen legal education. In addition, a lawyer must promote public understanding and trust in the rule of law and the judicial system, as the legal institutions in a rule of law democracy rely on popular participation and support to maintain their authority. A lawyer must take account of deficiencies in the administration of justice and the fact that the poor, and sometimes the poor, cannot afford adequate legal assistance. Therefore, all lawyers must devote professional time, resources and exercise civic influence to ensure equal access to our justice system for all those who, due to economic or social obstacles, cannot afford or receive adequate legal advice. A lawyer must support the legal profession in pursuing these goals and must help the bar association to regulate itself in the public interest.

[8] Many professional duties of a lawyer are regulated in the code of conduct as well as in substantive and procedural law. However, a lawyer is also guided by personal conscience and the approval of professional colleagues. A lawyer should strive to achieve the highest level of skill, advance the law and the legal profession, and exemplify the public service ideals of the legal profession.

[9] The duties of a lawyer as a representative of clients, as an official in the legal system and as a citizen of public life are often harmonious. So when an opposing party is well represented, a lawyer can be a passionate advocate for a client and still expect justice to be served. Similarly, a lawyer can be confident that maintaining client confidentiality is generally in the public interest, as people are more likely to seek legal advice, and therefore comply with their legal obligations, when they know their communications are private.

[10] In the nature of legal practice, however, conflicting responsibilities are to be found. Virtually all difficult ethical issues arise from the conflict between a lawyer's responsibility to clients, the legal system, and the lawyer's own interest in remaining ethical while earning a satisfactory living. The rules of professional conduct often prescribe conditions for the resolution of such conflicts. However, within the framework of these rules, many difficult questions of professional discretion can arise. Such matters must be resolved through the exercise of sound moral and professional judgment, guided by the fundamental principles underlying the Rules. These principles include the attorney's obligation to diligently protect and pursue a client's legitimate interests, within the limits of the law, by maintaining a professional, courteous and civilized demeanor to all those involved in the legal system.

[11] The legal profession is largely autonomous. While other professions have acquired self-governing powers, the legal profession is unique in this regard due to the close relationship between the profession and the processes of administration and law enforcement. This connection is reflected in the fact that supreme authority over the legal profession rests largely with the courts.

[12] As far as lawyers fulfill the duties of their profession, the occasion for state regulation is avoided. Self-regulation also helps maintain the independence of the legal profession from government regulations. An independent legal profession is an important force in keeping government under the law, since abuses of legal authority are more easily challenged by a profession whose members do not depend on government to practice law.

[13] The relative autonomy of the legal profession entails special self-administration obligations. The profession has a responsibility to ensure that its regulations are made in the public interest and not to further the narrow or selfish interests of the bar association. Every lawyer is responsible for adhering to the rules of professional conduct. An attorney must also help ensure compliance by other attorneys. Neglect of these duties endangers the independence of the profession and the public interest it serves.

[14] Lawyers play a crucial role in the maintenance of society. To fulfill this role, attorneys must understand their relationship to our legal system. The Standards of Professional Conduct, when applied correctly, serve to define this relationship.

REACH

[15] The professional rules are rules of reason. They are to be construed in relation to the purposes of legal representation and the law itself. Some of the rules are mandatory, expressed in the terms "must" or "must not". These define the correct behavior in terms of professional discipline. Others, usually expressed with the term "may," are permissive and define areas under the Rules where the attorney has discretion to exercise professional judgment. No disciplinary action will be taken if the Attorney chooses not to act or acts within that discretion. Other rules define the nature of the relationships between the attorney and others. The Rules are therefore partly binding and disciplinary and partly constitutive and descriptive in the sense that they define the professional role of a lawyer. Many of the comments use the term "should". Comments do not add obligations to the rules, but provide guidance for practice under the rules.

[16] The regulation presupposes a broader legal framework that determines the role of the lawyer. This context includes court rules and laws relating to licensing issues, laws defining the specific duties of attorneys, and general procedural and substantive laws. Comments are sometimes used to alert attorneys to their responsibilities under this other law.

[17] Enforcement of the Rules, like all laws in an open society, depends primarily on voluntary understanding and compliance, secondarily on mutual and public enforcement, and finally, where necessary, enforcement through disciplinary procedures. However, the norms do not exhaust the moral and ethical considerations that a lawyer must guide, as no decent human activity can be fully defined by legal norms. The rules merely provide a framework for the ethical practice of law.

[18] In addition, to determine the powers and liability of the lawyer, substantive principles outside of these Rules determine whether an attorney-client relationship exists. Most of the duties arising from the client relationship only arise after the lawyer has been commissioned by the client to provide legal services and the lawyer has consented to this. However, there are some obligations, such as B. Confidentiality under RPC 1.6 associated with attorney agreeing to consider establishing an attorney-client relationship.verRPC. 1.18. Whether an attorney-client relationship exists for a specific purpose may depend on the circumstances and may be fact.

[19] Under various laws, including constitutional, statute and common law, the responsibilities of prosecutors may differ from those of attorneys in private attorney-client relationships. Certain prosecutors may have the authority to represent multiple government agencies, officials or employees in litigation, when a private attorney may not represent multiple private clients. Tennessee prosecutors are also subject to the Open Meetings Act as interpreted by the Tennessee courts. In addition, they may have the power to represent the "public interest" in cases where a private attorney would not have the power to do so. These rules do not derogate from the powers and responsibilities of prosecutors as established by federal law or the Tennessee constitution, statutes or common law. Resolving a conflict between these Rules and the responsibilities or powers of prosecutors under these Statutory Provisions is a legal issue beyond the scope of these Rules.

[20] Failure to comply with an obligation or prohibition imposed by a rule is grounds for initiating disciplinary proceedings. The Rules assume that the disciplinary assessment of counsel's conduct will be based on the facts and circumstances existing at the time of the conduct concerned, and in recognition of the fact that counsel often acts on the basis of uncertainty or incomplete evidence got to . the situation. In addition, the rules assume that the discipline of a violation and the severity of the sanction depend on all circumstances, including the intent and seriousness of the violation, mitigating factors, and whether there have been previous violations. 🇧🇷

[21] Breach of a rule alone does not give rise to an action against an attorney, nor does it create a presumption in such a case that a statutory duty has been breached. In addition, a breach of a rule does not necessarily justify other extra-disciplinary remedies, such as B. the exclusion of an attorney in a pending litigation. The rules are intended to provide guidance to lawyers and a framework for regulating conduct in disciplinary bodies. They are not intended as a basis for liability. In addition, the purpose of the rules can be undermined if opposing parties invoke them as procedural weapons. The fact that a rule provides a fair basis for counsel's self-evaluation or for sanctioning counsel under the administration of a disciplinary authority does not mean that an opponent in a judicial proceeding or ancillary business is entitled to seek application of the rule. In certain circumstances, however, an attorney's breach of a rule may be relevant in determining whether there has also been a breach of applicable standards of conduct.

[22] Additionally, these Rules are not intended to govern or affect the judicial enforcement of attorney-client privilege or work product. These privileges are designed to promote compliance with the law and fairness in litigation. By invoking attorney-client privilege, clients have a right to expect that attorney-client privilege communications will be protected from disclosure. Attorney-client privilege belongs to the client, not the attorney. The fact that, in exceptional circumstances, legal counsel has limited discretion under the Rules in disclosing a client's confidentiality does not invalidate the statement that the client generally has a reasonable expectation that information about the client will not be disclosed voluntarily and that The Disclosure of such information can only be compelled by law based on recognized exceptions to attorney-client privilege and work product privilege.

[23] The commentary that accompanies each rule explains and illustrates the meaning and purpose of the rule. The preamble and this Scope Note provide general guidance. The comments are intended as interpretive guides, but the text of each rule prevails.

[24] Standard Citation Format: Citation for each professional rule ("RPC") must be in the following format: Tenn. great Connecticut. R8, RPC ____.

CHAPTER 1
THE LAWYER-CUSTOMER RELATIONSHIP

RULE 1.0: TERMINOLOGY

(a) "Belief" or "believes" means that the data subject actually believed that the fact in question was true. Circumstances can be used to infer a person's beliefs.

(b) "Written Confirmed Consent" when used in relation to an individual's informed consent means the informed consent that the individual provides in writing or a letter promptly provided by legal counsel to the individual stating the oral consent is confirmed. See paragraph (e) for the definition of “informed consent”. If it is not possible to obtain or transmit the document at the time the individual gives his/her informed consent, the lawyer must obtain or transmit it within a reasonable time thereafter.

(c) “company” or “law firm” means an attorney or attorneys in a law firm, professional association, sole proprietorship or other association authorized to practice law; or attorneys employed by a legal services organization or the legal department of a corporation, government agency, or other organization.

(d) "Fraud" or "fraudulent" means an intentionally false or misleading statement of material facts, an intentional omission of additional information that would be necessary for the statements made not to be materially misleading, and any other conduct by a person with the intention mislead any person or court as to a material issue in a proceeding or other matter.

(e) “Informed Consent” means a person's consent to a proposed course of conduct after an attorney has provided reasonable information and explanations as to the material risks and reasonably available alternatives to the suggested course of conduct.

(f) "Aware", "known" or "know" means actual knowledge of the fact in question. The knowledge of a person can be inferred from the circumstances.

(g) “Partner” means a partner in a law firm organized as a Professional Partnership or Limited Partnership, a partner in a law firm organized as a Professional Corporation, a member of a law firm organized as a Professional Limited Partnership, or an individual practitioner representing other attorneys or non-lawyers in connection with busy with his job.

(h) "Reasonable" or "reasonable" when used in connection with the conduct of an Attorney means the conduct of a reasonably prudent and competent Attorney.

(i) "Reasonable belief" or "reasonable belief" when used in relation to counsel means that the counsel believes the matter in question and that the circumstances are such that the assumption is reasonable.

(j) "Reasonably should have known" when used in relation to counsel means that a counsel of reasonable care and competence would determine the matter in question.

(k) "Selection" and "election" mean isolating an attorney from any involvement in any matter through the timely enforcement within a firm of procedures reasonably appropriate in the circumstances to protect the information which the isolated attorney is protecting is obligated under these rules or other laws.

(l) "Significant" or "substantially" when used in relation to degree or magnitude, denotes a material matter of clear and significant importance.

(m) “Court” means an arbitral tribunal (including a special master, arbitrator, judicial commissioner, or other similar judicial officer presiding over a judicial proceeding), an arbitrator in binding arbitration, or a legislative, administrative, or other governing body making a decision. A legislature, administrative body, or other body is acting in a judicial capacity when a neutral officer, upon presentation of legal evidence or arguments by the party or parties, issues a final judgment directly affecting the interests of a party in a particular matter.

(n) "Writing" or "written" means a physical or electronic record of a communication or representation, including handwritten, typed, printed, photocopied, photographed, audio or video recordings and electronic communications. “Signed” writing includes an electronic sound, symbol, or process associated or logically associated with the writing and performed or accepted by a person with the intention of signing the writing.

(o) "Substantially" or "substantially" means something that a reasonable person would consider important in judging or determining how to act on a matter.

Comment

Confirmed in writing

[1] If it is not possible to obtain or provide written confirmation at the time the client provides the informed consent, the Attorney shall obtain or provide it within a reasonable time thereafter. When a lawyer has obtained informed consent from a client, the lawyer may act on the basis of that consent provided it is confirmed in writing within a reasonable time thereafter.

Parties

[2] Whether two or more lawyers form a partnership under paragraph (c) may depend on the specific facts. For example, two professionals sharing offices and occasionally advising or assisting each other would not normally be considered a business. However, if they present themselves to the public in a way that gives the impression that they are a company or behave like a company, they must be considered a company for the purposes of the Rules. The terms of a formal agreement between associate lawyers are relevant to determining whether they are a firm, as well as whether they have reciprocal access to information about the clients they serve. In addition, when in doubt, it is relevant to consider the underlying purpose of the rule in question. A group of attorneys may be considered a partnership for the purposes of the rule that the same attorney should not represent opposing parties in a litigation, while information obtained from a group may not be considered as such for purposes of the rule. Lawyer is assigned to another.

[3] In relation to the legal department of any organization, including a government agency, there is usually no doubt that the members of the department constitute a professional organization. However, there may be uncertainty as to the identity of the customer. For example, it may not be clear whether a company's legal department is a subsidiary or an affiliate and the company in which the members of the department are directly employed. A similar question may arise in relation to an unincorporated association and its local subsidiaries.

[4] Similar problems can also arise in relation to lawyers in legal aid organizations and legal services. Depending on the organization's structure, the entire organization or its various parts may constitute a company or companies for the purposes of these Regulations.

[5] [comment intentionally omitted]

consent form

[6] Many of the professional codes require that the attorney obtain informed consent from a client or other person (Physical education., a past customer or, in certain circumstances, a potential customer) before accepting or continuing to advocate or pursue any conduct.see for example, RPC 1.2(c), 1.6(a) and 1.7(b). The communication required to obtain such consent will vary depending on the rule in question and the circumstances justifying the need for informed consent. The attorney must use reasonable efforts to ensure that the client or other person has adequate information to make an informed decision. This usually requires a notice that includes disclosure of the facts and circumstances that gave rise to the situation, any explanation reasonably necessary to inform the customer or other person of the material merits and demerits of the proposed conduct, and includes a discussion of options and alternatives from other people. In certain circumstances it may be appropriate for an attorney to advise a client or other person to seek the advice of another attorney. An attorney need not inform a client or other person of facts or implications already known to the client or other person; However, an attorney who fails to personally notify the client or other person risks misinforming the client or other person and voiding the consent. Relevant factors in determining whether the information and representations provided are appropriate are whether the client or other person has experience in general legal matters and decision-making of the type concerned and whether the client or other person is being represented independently by another legal counsel To agree. These individuals typically require less information and explanation than others and, in general, a client or other individual represented independently by another attorney in providing consent should be presumed to have given informed consent.

[7] Obtaining informed consent typically requires an affirmative response from the client or another person. In general, a lawyer cannot assume the consent of a client or any other person to remain silent. However, consent may be inferred from the conduct of a customer or other person who has reasonably adequate information on the matter. Several rules require that a person's consent be confirmed in writing.verRPC 1.7(b) and 1.9(a). See paragraphs (n) and (b) for a definition of “in writing” and “confirmed in writing”. Other regulations require that the customer's consent be obtained in writing and signed by the customer.see for example, RPC 1.8(a) and (g). For a definition of "signed" see paragraph (n).

bring to the screen

[8] This definition applies to situations where the selection of a personally disqualified consultant to resolve a conflict of interest claim under RPC 1.10, 1.11, 1.12 or 1.18 is permissible.

[9] The purpose of the screening is to reassure affected parties that confidential information known to the personally disqualified attorney is protected. The personally reticent attorney must acknowledge the obligation not to contact any of the other company attorneys about the matter. Likewise, other corporate counsel dealing with the matter must be informed that the review has been completed and they may not personally contact the disqualified counsel regarding the matter. Which additional evidentiary measures are appropriate for the specific facts depends on the circumstances. In order to implement, enforce and remind all affected Attorneys to participate in the Assessment, it may be appropriate for the Firm to undertake such procedures as a written commitment by the Assessed Attorney to authorize all communications with other Firm employees and all contact with the Firm's files avoid . Pursue. or other information, including information in electronic form, relating to the matter, written notices and instructions to all other office staff prohibiting all communication with the vetted attorney in connection with the matter, denying the vetted attorney's access to office files or other information , including information in electronic format related to the matter and periodic screen reminders for the assessed attorney and all other office staff. Although this rule does not require that the personally disqualified attorney be prevented from participating in the fees generated by that representation, such a prohibition may be considered in determining the effectiveness of the selection procedures employed by the firm. For example, a selected attorney is not prohibited from receiving a salary or partnership interest established by prior independent agreement.

[10] To be effective, screening measures should be undertaken as soon as possible after a lawyer or law firm knows or reasonably should have known that screening is required.

RULE 1.1: COMPETITION

A lawyer must represent a client competently. Competent representation requires legal knowledge, skill, thoroughness and preparation reasonably required for representation.

Comment

Legal skills and knowledge

[1] Relevant factors in determining whether an attorney is employing the requisite knowledge and skills in a particular matter are the relative complexity and specialty of the matter, the attorney's general experience, the attorney's education and experience in the field in which the matter is being dealt with, the preparation and study that the lawyer can provide in the matter and, if it is possible, the referral or consultation of the matter to a lawyer with recognized competence in the relevant field. In many cases, the required competence is that of a general practitioner. Experience in a particular area of ​​law may be required.

[2] A lawyer does not necessarily need to have any special training or prior experience to handle legal problems of a nature with which he is unfamiliar. A newly hired lawyer can be just as competent as a lawyer with many years of experience. All legal issues require some key legal skills such as: B. Precedent Analysis, Evidence Evaluation and Legal Writing. Perhaps the most basic of legal skills is determining what type of legal issues a situation might involve, a skill that necessarily transcends any specific expertise. A lawyer can offer adequate representation in a completely new area through the necessary studies. Competent representation can also be guaranteed by the association of lawyers with recognized expertise in the respective field.

[3] In an emergency, an attorney may provide advice or assistance in a matter where the attorney does not have the skills normally required, where referral, advice or cooperation with another attorney would be impractical. However, even in an emergency, assistance should be limited to what is reasonably necessary under the circumstances, as reckless action in an emergency situation could jeopardize the interests of the customer.

[4] A lawyer may be represented if the necessary competence can be achieved through appropriate preparation. This also applies to a lawyer appointed to represent a person who is not represented.also seePR 6.2.

rigor and preparation

[5] Competent handling of a particular matter involves studying and analyzing the factual and legal elements of the issue and using methods and procedures consistent with the standards of competent professionals. This also includes the right preparation. The attention and preparation required will be determined in part by what is at stake; Large litigation and complex transactions typically require more comprehensive treatment than matters of less complexity and scope. An agreement between the lawyer and the client on the scope of representation may limit the lawyer's jurisdiction.verRPC 1.2(c).

Hiring or Hiring Other Lawyers

[6] Before an attorney employs or engages other attorneys outside of his own practice to provide legal services to, or assist in the provision of legal services to, a client, the attorney must normally obtain the client's informed consent and have a reasonable expectation that the Services of other lawyers will competently contribute and ethical representation of the client. See also RPCs 1.2 (Authorization), 1.4 (Client Communications), 1.5(e) (Fee Share), 1.6 (Confidentiality) and 5.5(a) (Authorized Law Firm). The reasonableness of the decision to engage or hire other attorneys outside of the law firm itself will depend on the circumstances, including the background, experience and reputation of the outside attorneys; the nature of the services outsourced to outside counsel; and the legal protections, standards of professional conduct and ethical environment of the jurisdictions in which the Services are provided, particularly with respect to Confidential Information.

[7] When lawyers from more than one law firm are providing legal services to a client on a particular matter, lawyers should normally consult with each other and with the client as to the extent of their respective representation and the division of responsibilities between them.verPR 1.2. In assigning responsibilities in a matter pending before a court, attorneys and parties may have additional obligations beyond the scope of these Rules.

keep competition

[8] In order to maintain the necessary knowledge and skills, a lawyer must remain abreast of changes in law and practice, including the benefits and risks associated with the relevant technology, undergo ongoing education and training, and meet all statutory continuing education requirements . to which the lawyer is subject.

LAST CROSS REFERENCE

"Reasonable"verRPC 1.0 (h)

RULE 1.2: SCOPE OF REPRESENTATION AND DELEGATION OF AUTHORITY
BETWEEN CUSTOMER AND LAWYER

(a) Subject to paragraphs (c) and (d), an attorney shall comply with a client's choices as to the purposes of representation and, as prescribed in RPC 1.4, consult with the client as to the means by which the The client's goals are to be achieved. A lawyer can take such action on behalf of the client because he has implicit authority to perform the representation. An attorney must respect a client's decision to resolve a matter. In a criminal proceeding, the attorney, after consultation with the attorney, must comply with the client's decision as to what plea of ​​guilty to accept, whether to waive a trial by jury, and whether the client will testify.

(b) The representation of a client by an attorney, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral opinions or activities.

(c) An attorney may limit the scope of representation where the limitation is reasonable in the circumstances and the client's informed consent, preferably in writing.

(d) A lawyer will not advise a client to engage in or assist a client in any conduct which the lawyer knows or reasonably ought to know is criminal or fraudulent, but a lawyer may examine the legal consequences of any suggested conduct discuss with a client. and may advise or assist a client in making a good faith effort to determine the validity, scope, meaning or application of the law.

Comment

Power of attorney transfer between client and lawyer

[1] Paragraph (a) gives the client ultimate authority to determine the purposes for which legal representation is to serve, within the limits imposed by law and the attorney's professional duties. The decisions referred to in paragraph (a), such as B. the settlement of a civil matter, must also be taken by the customer. See RPC 1.4(a)(1) for attorney's duty to communicate with client about such decisions. In relation to the means by which the client's objectives are pursued, counsel will consult with the client pursuant to RPC 1.4(a)(2) and may take any action implicitly authorized to carry out the representation.

[2] On occasion, however, an attorney and a client may disagree as to the means to be used to achieve the client's goals. Clients tend to rely on their attorneys' specific knowledge and skills regarding the means to be used to achieve their goals, particularly technical, legal and tactical. Instead, attorneys often acknowledge with the client issues such as costs incurred and concerns about third parties who may be adversely affected. Because of the different nature of the issues on which an attorney and his client may disagree, and because the acts at issue may affect the interests of a court or other person, this rule does not prescribe how such disagreements are to be resolved. However, other laws may apply which should be consulted by counsel. The attorney must also consult with the client and seek a mutually acceptable resolution of the disagreement. If these efforts are unsuccessful and if the lawyer has a fundamental difference of opinion with the client, the lawyer may withdraw from the representation subject to the approval of the court.verRPC 1.16(b)(4). Instead, the client can resolve the disagreement by firing the attorney.verRPC 1.16(a)(3).

[3] At the beginning of a representation, the client can authorize the lawyer to take certain actions on behalf of the client without further consultation. In the absence of a material change in circumstances and subject to RPC 1.4, an attorney may rely on such prior approval. However, the customer can revoke this authorization at any time.

[4] In the case where the client appears to have diminished legal capacity, counsel's duty to comply with the client's decisions should be guided by RPC 1.14.

Independence from customer opinions or activities

[5] Individuals who cannot afford legal services or whose case is controversial or opposed by the public should not be denied legal representation. Similarly, representation of a client does not constitute endorsement of the client's opinions or activities.

Agreements Restricting Area of ​​Representation

[6] The scope of the services to be provided by the lawyer may be limited by an agreement made with the client or by the terms on which the lawyer's services are made available to the client. For example, if an insurance company has hired an attorney to represent a policyholder, representation may be limited to matters related to coverage. Limited representation may be appropriate because the customer has limited objectives for representation. In addition, the terms on which representation is provided may preclude certain means that might otherwise be used to achieve the client's objectives. Such limitations may preclude acts that the client finds too onerous, or that the attorney finds repugnant or reckless.

[7] Although this rule gives counsel and client considerable freedom to limit representation, the limitation must be reasonable in the circumstances. If, for example, a client's goal is limited to obtaining general legal information that the client needs to process a common and usually simple legal problem, the lawyer and client can agree that the legal activity is limited to a brief telephone consultation. 🇧🇷 However, such a restriction would be unreasonable if the allotted time is insufficient to provide advice that the customer can rely on. Although a limited representation agreement does not relieve an attorney of the duty to provide competent representation, limitation is a factor to be considered in determining the legal knowledge, ability, thoroughness and preparation reasonably required for representation are.verPR 1.1.

[8] All agreements regarding the legal representation of a client must comply with professional standards and other laws.See for exampleRPC 1.1, 1.8 und 5.6.

Criminal, Fraudulent and Prohibited Transactions

[9] Paragraph (d) prohibits an attorney from advising or assisting a client to engage in conduct which the attorney knows or should have known to be criminal or fraudulent. However, this prohibition does not prevent the lawyer from giving an honest opinion about the actual consequences that may result from a client's conduct. Also, the fact that a client uses the advice in a criminal or fraudulent process does not make the lawyer part of the process. There is a critical difference between presenting an analysis of the legal aspects of questionable conduct and recommending means by which a crime or fraud could be committed with impunity.

[10] When the client's actions have already begun and are ongoing, the solicitor's responsibility is particularly delicate. In some situations, Rule 1.6 may permit or require counsel to disclose the client's wrongdoing.verRPC 1.6(b)(1) and (c)(1). In any case, however, the lawyer is obliged not to provide any assistance to the client, for example by preparing or supplying documents that he knows are fraudulent or by suggesting how the crime can be concealed. An attorney may not further assist a client in conduct that he initially believed to be legal but later determined to be criminal or fraudulent. The lawyer must therefore refrain from representing the client in the matter.verRPC 1.16(a). In some cases, withdrawal alone may not be enough. It may be necessary for the lawyer to communicate the fact of withdrawal and to refute any opinion, document, statement or the like.verPR 4.1.

[11] When the client is a fiduciary, the attorney may have special responsibilities in dealing with a beneficiary.

[12] Paragraph (d) applies regardless of whether the defrauded party is a party to the transaction or not. Therefore, an attorney should not be involved in a transaction to effect criminal or fraudulent tax evasion. Paragraph (d) does not preclude a general advance payment for legal services to a law firm handling a criminal defense case. The final clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require an approach that involves disregard of the statute or regulation or interpretation by governmental authorities.

[13] When an Attorney knows, or reasonably should have known, that a client expects assistance that is not authorized by the code of conduct or other law, or if the Attorney intends to act contrary to the instructions of the client, the Attorney should consult with the client . about legal restrictions on conduct.verRPC 1.4(a)(5).

LAST CROSS REFERENCES

"Cheater"verRPC 1.0(d)
"Informed Consent"verRPC 1.0(e)
"He knows"verRPC 1.0(f)
"Appropriate"verRPC 1.0 (h)
"I should reasonably know"verRPC 1.0(j)
"Write"verRPC 1.0(n)

RULE 1.3: CARE

An attorney will use reasonable care and expeditiousness in representing a client.

Comment

[1] An attorney must pursue a matter on behalf of a client, despite the attorney's personal opposition, impediment or inconvenience, and take all necessary legal and ethical steps to justify a client's matter or efforts. The lawyer must also act with commitment and devotion to the interests of the client and serve the client with zeal. However, an attorney is under no obligation to extort every advantage a client may obtain. For example, an attorney may have the authority to use professional judgment in determining the means by which a matter should be dealt with.verPR 1.2. The attorney's duty of due diligence does not require the use of offensive tactics or preclude treating all persons involved in the legal process with courtesy and respect.

[2] A lawyer's workload must be controlled so that each matter can be handled competently.

[3] Perhaps no professional handicap suffers more than procrastination. A client's interests can often be affected by the passage of time or changing conditions; in extreme cases, such as when a lawyer disregards the statute of limitations, the client's legal position can be destroyed. But even if the client's interests are not materially harmed, unreasonable delays can unnecessarily distress the client and undermine confidence in the attorney's reliability. However, a lawyer's duty to act with reasonable speed does not prevent him from granting a reasonable stay request that does not harm his client.

[4] Unless the relationship is terminated pursuant to RPC 1.16, an attorney shall conduct all matters undertaken on behalf of a client. If the activity of a lawyer is limited to a specific matter, the relationship ends when the matter is settled. When a lawyer has served a client on a wide range of matters for a significant period of time, the client can sometimes assume that the lawyer will continue to practice unless notice is given. Doubts as to whether an attorney-client relationship still exists should be clarified by the lawyer in writing, if possible, so that the client does not mistakenly believe that the lawyer is taking care of the client's business when the lawyer has stopped doing so. For example, if an attorney has handled a judicial or administrative proceeding that has resulted in an adverse outcome for both the client and the attorney, and the client has not consented to the attorney handling the appeal matter, the attorney should consult with the client about the possibility speak to object before proceeding.verRPC 1.4(a)(2). Except as otherwise required by law, the extent to which counsel has consented to represent the client depends on whether counsel has a duty to handle the appeal for the client.verRPC 1.2;also seeOn here. great Connecticut. R. 13 and 14; Tenn. Kt. Crime. Application. r 12

LAST CROSS REFERENCE

"Appropriate"verRPC 1.0 (h)

RULE 1.4: COMMUNICATION

(a) An attorney must:

(1) promptly notify Customer of any decision or circumstance for which these Rules require Customer's informed consent, as defined in RPC 1.0(e);

(2) reasonably consult with Customer about the means by which Customer's objectives are to be achieved;

(3) keep the Customer reasonably informed of the progress of the matter;

(4) respond promptly to reasonable requests for information; j

(5) consult with the client about material limitations on attorney's conduct when attorney knows the client expects assistance that is not authorized by professional ethics or other law.

(b) An attorney will explain a matter to the extent reasonably necessary to enable the client to make informed decisions about representation.

Comment

[1] Adequate communication between attorney and client is necessary for the client to participate effectively in representation.

Communicate with the customer

[2] Where these Rules require the client to make a particular decision about representation, paragraph (a)(1) requires that the attorney promptly consult and obtain the client's consent before acting, unless it has been discussions with the client are held beforehand as to which measures the client would like the lawyer to take. For example, an attorney who receives an offer of settlement in a civil litigation or a plea agreement offered in a criminal proceeding from an opposing attorney must promptly notify the client of its contents unless the client has previously indicated that the offer is acceptable or unacceptable . 🇧🇷 or authorizes the lawyer to accept or reject the offer.verRPC 1.2(a).

[3] Paragraph (a)(2) provides that the Attorney shall consult with the client in a reasonable manner as to the means to be employed to achieve the client's ends. Depending on the importance of the action in question and the feasibility of consultation with the customer, in some situations this obligation requires a pre-action consultation. In other circumstances, such as B. During a process where an immediate decision needs to be made, the situation may require the lawyer to act without prior consultation. However, in such cases, the attorney must act reasonably to inform the client of the action taken by the attorney on behalf of the client. In addition, paragraph (a)(3) requires the counsel to keep the client reasonably informed of the progress of the matter, such as B. Important events affecting the timing or content of the substitution.

[3a] Paragraph (a)(2) requires the counsel to consult with the client in a reasonable manner as to the means by which the client's objectives are to be achieved. However, this Standard is not intended to specify the attorney's duties when the attorney and client disagree as to the means to be used to achieve the client's goals. Disagreements between Attorney and Client about these means are to be settled by Attorney and Client within a framework determined by the right of representation, the client's right of termination and the Attorney's right to withdraw from representation in the event of a fundamental claim by the Attorney. Disagreements with the client.verRPC 1.2, Commentary [2].

[4] Regular communication by an attorney with clients minimizes the occasions when a client needs to request information about representation. However, if a client makes a reasonable request for information, paragraph (a)(4) requires a prompt response to the request or, if prompt response is impractical, counsel or an associate of counsel acknowledges receipt of the request and advises the client when to expect an answer. An attorney or member of the legal team must promptly respond to or acknowledge receipt of communications from the client.

explain facts

[5] The client must have sufficient information to participate intelligently, to the extent he is willing and able, in decisions about the goals of representation and the means by which they are to be pursued. The appropriateness of communications will depend in part on the nature of the advice or assistance involved. For example, if there is time to explain a proposal made in a negotiation, the attorney should review all important terms with the client before proceeding to an agreement. In litigation, an attorney must explain the overall strategy, the likelihood of success, and generally consult with the client about tactics that are likely to result in significant cost, damage, or compel others. On the other hand, a lawyer is not normally expected to describe in detail the negotiation or settlement strategy. The guiding principle is that the attorney should meet the client's reasonable expectations for information consistent with the duty to act in the client's best interests and the client's general requirements for representation. Under certain circumstances, e.g. B. When an attorney requests consent from a client to represent someone affected by a conflict of interest, the client must provide informed consent as defined in RPC 1.0(e).

[6] In general, the information provided is appropriate for a client who is a caring and responsible adult. However, fully informing the customer under this rule may be impractical, for example if the customer is a minor or has limited legal capacity.verPR 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform each of its members of their legal issues; As a rule, the lawyer should direct the communication to the appropriate employees of the organization.verPR 1.13. Limited or occasional reporting can be agreed with the client on many routine matters.

withhold information

[7] In certain circumstances, an attorney may be justified in withholding or delaying the transmission of information to the client, including where the client is likely to be reckless in responding to immediate communication. For example, an attorney could withhold a psychiatric diagnosis from a client if the examining psychiatrist indicated that disclosure would harm the client. An attorney may not withhold information to serve his own interests or convenience or the interests or convenience of another person. Other applicable laws, including rules or court orders governing litigation, may state that information provided to an attorney may not be disclosed to the client. RPC 3.4(c) requires compliance with such rules or orders.

LAST CROSS REFERENCES

"Informed Consent"verRPC 1.0(e)
"He knows"verRPC 1.0(f)
"reasonable" and "reasonable"verRPC 1.0 (h)

RULE 1.5: FEES

(a) An attorney shall not charge, charge or charge for any unreasonable fees or unreasonable amounts for out-of-pocket expenses. Factors to consider when determining the reasonableness of a fee include the following:

(1) the amount of time and effort required, the novelty and difficulty of the issues involved, and the skills required to properly provide the legal service;

(2) the likelihood, if apparent to the client, that acceptance of the specified employment will preclude further employment of the attorney;

(3) the fee normally charged locally for similar legal services;

(4) the amount involved and the results achieved;

(5) time limits imposed by Customer or circumstances;

(6) the nature and duration of the business relationship with the customer;

(7) the experience, reputation, and skill of the attorney or attorneys performing the services;

(8) whether the fee is fixed or contingent;

(9) previous announcements or statements by attorneys regarding attorneys' fees; j

(10) if the fee agreement is made in writing.

(b) The extent of representation and the basis or rate of fees and expenses for which the client is responsible will be notified to the client, preferably in writing, before or within a reasonable time after the commencement of representation, except where representation is being given to a regularly represented client charge the same basis or rate. Any change in the basis or rate of the fees or expenses will also be notified to the customer.

(c) A fee may depend on the outcome of the matter for which the service is provided, except in a matter where a contingency fee is prohibited under paragraph (d) or other law. A contingency fee agreement must be in writing and signed by the client and must set out the method by which fees will be determined, including the percentage or percentages that counsel will be required to pay in the event of a settlement, judgment or appeal; disputes and other costs to be deducted from collection; and whether such expenses are to be deducted before or after the calculation of the performance fee. The contract must clearly inform the customer of all costs for which the customer is responsible, regardless of whether they are the winning party or not. Upon the resolution of a contingency fee dispute, counsel must provide the client with a written statement setting out the outcome of the litigation and, if made, the referral to the client and the procedure for determining it.

(d) A solicitor shall not arrange, charge or calculate:

(1) any fee in matters of domestic relations, the payment or amount of which depends upon the obtaining of a divorce or the granting of custody, or the amount of alimony or alimony, or the amount of any division or estate settlement, unless the matter is such relates solely to the recovery of alimony or child support arrears or the enforcement of a property-sharing order and the fee schedule is disclosed to the court; any

(2) a contingency fee for representing a defendant in a criminal proceeding.

(e) Apportionment of fees between solicitors not belonging to the same firm is only permitted where:

(1) The division takes place in proportion to the services provided by each lawyer or each lawyer jointly assumes responsibility for representation;

(2) the customer accepts the contract and the contract is confirmed in writing; j

(3) the total fee is reasonable.

(f) A non-refundable fee, in whole or in part, must be agreed in writing and signed by the Client, explaining the parties' intent as to the nature and amount of the non-refundable fee.

Comment

Reasonability of Fees and Expenses

[1] Paragraph (a) obliges Attorneys to charge fees reasonable in the circumstances. The factors given in (1) to (10) are not exclusive. Not all factors are relevant in all cases. Paragraph (a) also requires that the costs charged to the customer are reasonable. A lawyer can claim reimbursement for services rendered internally, such as B. photocopies, or other internally incurred costs, such as costs incurred by the lawyer.

Base or Tarifa de Tarifa

[2] If the solicitor has represented a client on a regular basis, he will normally agree on the basis or rate of the fees and expenses for which the client is responsible. In a new client relationship, however, an agreement on fees and expenses must be reached quickly. In general, it is desirable to provide the client with at least a simple memorandum or copy of standard attorney fee agreements, outlining the general nature of the legal services to be provided, the basis, rate or total amount of the fees, and whether and to what extent the client any costs, expenses or expenses incurred in the course of the representation. A written explanation of the terms of the engagement reduces the possibility of misunderstandings. For the need for a written form when an attorney wishes to change the terms of a fee agreement with a client, see RPC 1.8, comment [1].

[3] Contingent Fees, like all other fees, are subject to the reasonableness standard in paragraph (a) of this Rule. In determining whether a particular contingency fee is appropriate, or whether it is appropriate to charge any type of contingency fee, an attorney must consider factors relevant to the circumstances. Applicable law may impose restrictions on contingent fees, such as: B. a cap on the allowable percentage, or may require an attorney to provide clients with an alternative basis for payment of fees. Applicable law may also apply to situations other than contingent fees, such as government regulations regarding fees in certain tax matters.

terms of payment

[4] The lawyer may request the advance payment of the fees, but is obliged to repay the part not paid.verRPC 1.16(d). However, the obligation to refund part of the fees does not apply if the attorney charges a reasonable non-refundable fee.

[4a] A non-refundable fee is a fee that is paid in advance and earned by the attorney when paid. Non-refundable fees, like all other fees, are subject to the reasonableness standard in paragraph (a) of this Rule. In determining whether a particular non-refundable fee is appropriate, or whether it is appropriate to charge a non-refundable fee, an attorney must consider factors relevant to the circumstances. Accepted examples of reasonable non-refundable fees include a non-refundable advance paid to compensate the attorney for being available to represent the client in a matter or matters, or if the client consents to the attorney at the outset to pay the agency a reasonable fixed fee agency. 🇧🇷 🇧🇷 These fees are incurred for as long as the lawyer is available to provide the services required by the advance or for the services calculated by the fixed fee. RPC 1.5(f) requires a document signed by the client to ensure that attorneys take special care to ensure clients understand the implications of agreeing to pay a non-refundable fee.

[4b] An attorney may accept property in exchange for services such as B. an equity interest in a company, unless doing so involves acquiring an equity interest in the cause of action or subject matter of litigation contrary to RPC 1.8 (Yo). However, a fee paid in kind rather than cash may be subject to the requirements of RPC 1.8(a) because such fees generally have the essential characteristics of a commercial transaction with the customer.

[5] A contract whose terms may cause the lawyer to unreasonably reduce the services rendered to the client or render them contrary to the interests of the client cannot be concluded. For example, a lawyer should not agree that services will only be provided up to a certain amount if it is foreseeable that more extensive services will be required unless the situation is adequately explained to the client. Otherwise, the customer may need to negotiate for further help in the middle of a proceeding or transaction. However, the scope of services should be defined according to the customer's ability to pay. A lawyer should not abuse a fee scheme based primarily on hourly rates with useless procedures. When in doubt as to whether a contingency fee is in the client's best interest, the attorney should discuss with the client alternative bases for the fee and explain their implications.

Prohibited Contingency Fees

[5a] In certain circumstances, applicable law may impose limitations on contingent fees, such as B. a percentage cap. For example, Tennessee law regulates contingency fees in cases of medical malpractice.verTennessee-Ann Code. §29-26-120. In these circumstances, charging unlawful fees or expenses under paragraph (a) of this Rule may be considered unreasonable and may violate RPC 8.4 or other Rules.verRPC 8.4(d) (Prohibition of Conduct Detrimental to the Administration of Justice).

[6] Paragraph (d) prohibits an attorney from collecting a contingent fee in a domestic relations matter where payment is contingent upon obtaining a divorce or granting of custody or the amount of child support or payment of property to be received is . This provision allows for a contingent fee for legal representation in connection with the recovery of post-trial balances arising from child support, child support, or other financial orders, provided the fee arrangement is reported to the court.

fare allocation

[7] A shared fee is a one-off fee for a client that covers the fees of two or more attorneys who do not practice in the same firm. Fee sharing makes it easier to engage more than one attorney on a matter where neither attorney alone could assist the client, and is most commonly used when fees are contingent and the sharing is between an attorney-at-law and a litigation specialist. Paragraph (e) allows attorneys to apportion fees based on the proportion of services they render or whether each attorney accepts full responsibility for representation. In addition, the customer must agree to the agreement and confirm the agreement in writing. It does not require disclosure to the customer of the portion to be received by each proxy. Contingency Fee Agreements must be in writing, signed by the Client and comply with paragraph (c) of this Rule. The joint liability of the agency includes the obligations set out in RPC 5.1 for the purposes of the matter in question. An attorney should only refer a matter to an attorney whom the referring attorney reasonably believes is competent to handle the matter.verPR 1.1.

[8] Subparagraph (e) does not prohibit or regulate the future sharing of fees for work performed where Attorneys have been previously affiliated with a law firm.

fee disputes

[9] If a fee dispute resolution procedure has been put in place, e.g. e.g., an arbitration or conciliation procedure established by the Bar Association, the Attorney should comply with it when necessary and, even if it is voluntary, consider filing for it. The law may prescribe a process for determining an attorney's fee, for example, on behalf of an executor or trustee, class, or person entitled to reasonable fees in an action for damages. The attorney entitled to such fees and an attorney representing another party to the fees must follow the prescribed procedure.

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Parties"verRPC 1.0(c)
"Appropriate"verRPC 1.0 (h)
"Write"verRPC 1.0(n)

RULE 1.6: CONFIDENTIALITY OF INFORMATION

(a) An attorney shall not disclose any information relating to the representation of a client unless:

(1) the customer gives their informed consent;

(2) the disclosure is implicitly authorized to make the representation; any

(3) disclosure is permitted under paragraph (b) or required under paragraph (c).

(b) An Attorney may disclose information relating to the representation of a client to the extent that the Attorney reasonably believes it is necessary:

(1) prevent the Customer or any other person from committing a criminal offence, including a criminal offense which has a reasonable certainty of causing material harm to another person's financial interests or property, except as prohibited by RPC 3.3 or restrict disclosure;

(2) to prevent the Client from committing fraud which, with a reasonable certainty, will result in significant harm to the financial interests or property of others, and in support of which the Client has engaged or is seeking the services of the Attorney, except where disclosure is prohibited or restricted by RPC 3.3;

(3) to prevent, mitigate, or remedy significant harm to the financial interests or property of another, which arises with reasonable certainty from, or has arisen from, the commission of fraud by the client for whom the client uses the attorney's services has made use of, except where disclosure is prohibited or restricted by RPC 3.3;

(4) seek legal advice regarding Attorney's compliance with these Rules; any

(5) to bring a claim or defense on behalf of attorney in an attorney-client litigation, to provide a defense against a criminal charge or a civil claim against attorney based on conduct in which the client was a party, to establish, or to respond to, allegations in any such proceeding in connection with the representation of the client's counsel; any

(6) to identify and resolve conflicts of interest arising from an attorney's job change or changes in the composition or ownership of a law firm, but only if the information disclosed does not compromise attorney-client privilege or harm the client.

(c) An attorney should disclose information relating to the representation of a client to the extent that he reasonably believes disclosure is required:

(1) to avoid reasonably certain death or serious bodily harm;

(2) to comply with a court order requiring disclosure, but only if so ordered by the court after counsel has made any non-frivolous claim on behalf of the client that the information requested by the court be protected from disclosure privileges or other applicable laws; any

(3) to comply with RPC 3.3, 4.1 or other law.

(d) An attorney will use reasonable efforts to prevent accidental or unauthorized disclosure of, or access to, information relating to the representation of a client.

Comment

[1] This regulation regulates the disclosure of information by a lawyer in connection with the representation of a client during the legal representation of the client. See RPC 1.18 for attorney's duties with respect to information provided to attorney by a prospective client, RPC 1.9(c) for attorney's duty not to provide information relating to attorney's prior representation of a prior client and RPC 1.8(b) ) and 1.9(c) for legal responsibilities regarding the use of such information to the detriment of clients and former clients.

[2] A fundamental principle in the attorney-client relationship is that the attorney should not disclose any information about the representation without the informed consent of the client. See RPC 1.0(e) for the definition of consent. This contributes to the trust that characterizes the attorney-client relationship. Therefore, the client is encouraged to seek legal assistance and to communicate fully and openly with the attorney, even when the matter is embarrassing or legally harmful. The attorney needs this information in order to effectively represent the client and, if necessary, advise the client to refrain from unlawful conduct. Almost without exception, clients turn to lawyers to clarify their rights and what is considered legal and correct in the complex of laws and regulations. Lawyers know from experience that almost all clients follow the advice given and the law is respected.

[3] Attorney-client privilege is enforced through related legal bodies: the attorney-client privilege, the employment reference, and the professional secrecy rule. Attorney-client privilege and work-product doctrine apply in court and other proceedings in which an attorney is summoned to testify or is required to produce evidence about a client. Attorney-client privilege applies in situations other than cases where evidence is requested from an attorney, as required by law. For example, the confidentiality rule applies not only to matters communicated confidentially by the client, but also to all information in connection with the representation, regardless of its origin. An attorney may not disclose such information except as permitted or required by ethics or other law.also seeReach.

[3a] The requirement to maintain the confidentiality of information related to representation applies to prosecutors who may disagree with the political objectives being pursued by their representation.

[3b] Confidential information according to this provision does not include what a lawyer learns about the law, legal institutions such as courts and administrative authorities and similar public matters in the context of representing clients. For example, while legally investigating an issue while representing a client, an attorney may discover a particularly important precedent, develop a new legal approach, or learn the preferred way of framing an argument before a particular judge that is both immediately useful in the matter and in other representations. This information is part of the general pool of information available to the lawyer.

[4] Paragraph (a) prohibits an attorney from disclosing information relating to the representation of a client. This prohibition also applies to disclosures by an attorney that do not themselves disclose proprietary information but could reasonably lead to the discovery of such information by others. Disclosure of information in a manner that cannot reasonably be associated with the client does not disclose information related to the representation of a client in violation of this rule. For example, the use of assumptions by counsel to discuss matters relating to representation is permissible unless there is a reasonable likelihood that the Ombudsman will be able to ascertain the client's identity or the situation at hand.

[4a] Unless there is a reasonable likelihood of detriment to a client, this rule does not prohibit an attorney from disclosing information about a client's representation in order to provide professional assistance to other attorneys, whether informally, such as in attorney-to-law discussions, or more formally, as in legal training conferences. Therefore, in general, an attorney may consult another attorney (whether or not practicing in the same firm) on a matter where the reporting attorney has gained experience representing a client in order to assist the other attorney in representing clients help. Customers.

authorized disclosure

[5] Except to the extent that client instructions or special circumstances limit such authority, an attorney has the implicit authority to make disclosures about a client when doing so is appropriate to the exercise of representation. For example, in some situations an attorney may be impliedly authorized to admit a fact that cannot reasonably be challenged or to make a disclosure that will facilitate the satisfactory conclusion of a matter. Attorneys at a firm may disclose information about a client of the firm to one another in the course of the firm's operations, unless the client has determined that certain information be restricted to particular attorneys.

Adverse Disclosure by Customers

[6] While the public interest is generally best served by a strict rule requiring lawyers to maintain the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. For example, paragraph (b)(1) permits the attorney to disclose information to the extent necessary for data subjects or law enforcement to prevent the client from committing a crime.

[7] Paragraph (b)(2) is another limited exception to the confidentiality rule, permitting disclosure to the extent necessary to prevent Customer from committing fraud as defined in RPC 1.0(d). , but only if the fraud is reasonably certain to result in significant harm to another's financial or property interests and the client has engaged or is using the attorney's services to further the fraud. Such gross abuse of the client relationship by the client loses the protection of this rule. The customer can of course prevent such disclosure by refraining from the unlawful conduct. Although paragraphs (b)(1) and (b)(2) do not oblige Attorney to disclose Client's misconduct, Attorney shall not advise or assist Client in conduct that is known to be criminal or fraudulent.verRPC 1.2(d). See RPC 1.16 regarding an attorney's obligation or right to withdraw from representing a client in such circumstances, and RPC 1.13(c), which allows an attorney, where the client is an organization, to disclose information relating to disclose the representation. In addition, where the client is an organization, the attorney may have doubts as to whether the intended conduct is actually being carried out by members of the organization. If necessary to direct conduct in connection with this rule, counsel may consult within the organization as described in RPC 1.13(b). RPC 3.3 in lieu of paragraphs (b)(1) and (b)(2) of this rule governs disclosure of a client's intent to commit perjury or other criminal offenses in connection with a procurement process.

[8] Paragraph (b)(3) concerns the situation in which a client has engaged the services of a lawyer when a criminal offense has been committed. Even if the customer no longer has the ability to prevent disclosure by refraining from unlawful conduct, there will be situations in which the harm to the data subject can be prevented, remedied or mitigated. In such situations, Attorney may disclose Representation-related information to the extent necessary to enable Data Subjects to avoid or mitigate certain losses or attempt to recover their losses. Paragraph (b)(3) shall not apply where a person who has committed a criminal offense or fraud subsequently appoints a lawyer to represent him or her in connection with that criminal offence.

[9] An attorney's confidentiality obligations do not prevent him or her from seeking confidential legal advice on the attorney's personal responsibility to comply with these rules. In most situations, disclosure of information to obtain such advice implicitly authorizes the attorney to perform the representation. Even if the disclosure is not implicitly authorized, paragraph (b)(4) permits such disclosure because attorney compliance is important. To protect the client, such information may only be given if it is protected by attorney-client privilege.

[10] If a legal claim or disciplinary proceeding alleges attorney's complicity in the conduct of a client or other wrongdoing in connection with the representation of the client, attorney may respond to the extent reasonably necessary to establish a defense. The same applies with respect to a lawsuit brought by counsel concerning the conduct or representation of a former client, e.g. B. if an internal attorney takes legal action to resolve your termination of an organizational employer in retaliation for compliance or refusal. violate, a clear expression of public policy in the rules of business conduct.also seeRPC 1.16 comment [4]. Such an allegation may be made in civil, criminal, disciplinary or other proceedings and may be based on a wrong allegedly committed by counsel against the client or a wrong alleged by a third party, such as a person alleging that he has been defrauded his attorney and client act together. Attorney's right of reply arises where such complicity is asserted. Paragraph (b)(5) does not require counsel to await a claim or proceed to assert such complicity, therefore the defense may be established by responding directly to a third party who has made such an allegation. The right of defense also applies, of course, when legal proceedings have been initiated. Wherever possible and without compromising the attorney's ability to defend himself, the attorney should inform the client of the third party's allegation and encourage the client to respond appropriately.

[11] Paragraph (b)(5) allows a fee-eligible attorney to provide evidence of services rendered in a fee collection process. This aspect of the standard expresses the principle that the beneficiary of a trust cannot use it to the detriment of the trustee.

[12] Other laws may require an attorney to disclose information about a client. Whether such law supersedes RPC 1.6 is a legal issue beyond the scope of these rules. If disclosure of information relating to representation appears to be required under another law, counsel must discuss the matter with client to the extent required by RPC 1.4. However, if the other law overrides this rule and requires disclosure, subsection (c)(3) requires attorneys to make disclosures necessary to comply with the law.

Conflict of Interest Detection

[13] Paragraph (b)(6) recognizes that attorneys from different firms may need to disclose limited information to each other to identify and resolve conflicts of interest, for example where an attorney is considering working with another firm two or more firms are doing so across contemplating a merger or a lawyer contemplating buying a law firm.verRPC 1.17, comment [7]. Under these circumstances, attorneys and law firms can disclose limited information, but only after extensive discussions about the new relationship. In general, such disclosure should contain no more than the identity of the individuals and entities involved in a matter, a brief summary of the general matters involved, and information as to whether the matter has been resolved. However, even this limited information should only be disclosed to the extent reasonably necessary to identify and resolve conflicts of interest that may arise from the potential new relationship. In addition, disclosure of information is prohibited if it could jeopardize attorney-client privilege or harm the client (Physical education., the fact that a corporate client seeks advice on an undisclosed acquisition of a business; that a person consulted an attorney about the possibility of divorce before her spouse became aware of his intentions; or that a person has consulted an attorney about a criminal investigation that has not resulted in a public charge). In these circumstances, paragraph (a) prohibits disclosure unless the customer or former customer provides informed consent. An Attorney's fiduciary duty to the law firm may also govern, and is beyond the scope of, an Attorney's conduct in exploring a partnership with another firm.

[14] Any information disclosed pursuant to paragraph (b)(6) may only be used or disclosed to the extent necessary to identify and resolve conflicts of interest. Paragraph (b)(6) does not limit the use of information obtained through independent disclosures pursuant to paragraph (b)(6). Paragraph (b)(6) also does not address disclosure of information within a law firm when disclosure is otherwise permitted, see comment [5], e.g. B. When a lawyer from a firm gives information to another lawyer from the same firm. to identify and resolve conflicts of interest that may arise in connection with the exercise of a new representation.

[15] Paragraph (b) permits disclosure only to the extent Counsel reasonably believes that disclosure is necessary to achieve any of the stated purposes. Whenever possible, the attorney should first try to persuade the client to take appropriate steps to avoid the need for disclosure. In any case, the disclosure contrary to the interests of the client must not go beyond what the lawyer considers reasonably necessary to achieve the objective. If the disclosure is made in connection with a legal proceeding, the disclosure must be made in a manner that limits access to the information to the court or others with a need to know, and a protective order or other appropriate accommodation must be sought. be contacted by a lawyer if possible.

[16] Paragraph (b) permits but does not require the disclosure of information relating to the representation of a client in order to fulfill the purposes set out in paragraphs (b)(1) to (b)(5). In exercising the discretion conferred by this Standard, Legal Counsel may consider factors such as the nature of Legal Counsel's relationship with the client and with those who may be harmed by the client, the Legal Counsel's own involvement in the transaction and any other factors affecting the conduct might mitigate, consider questionable. An attorney's decision not to disclose what is permitted under paragraph (b) does not violate this rule. However, disclosure may be required by other rules. Some rules only require disclosure where such disclosure is permitted under paragraph (b).See for exampleRPC 8.1 and 8.3. On the other hand, RPC 3.3 requires disclosure under certain circumstances, regardless of whether such disclosure is permitted by this rule.verRPC 3.3(h) and (i). In addition, RPCs 4.1(b) and (c) require, in certain circumstances, disclosure of an attorney's resignation from representing a client and rebuttal of written materials prepared for the client.

Disclosure Required or Otherwise Authorized

[17a] Paragraph (c)(1) recognizes the supreme value of life and limb and requires disclosure that is reasonably necessary to prevent reasonably certain death or serious bodily harm. Serious bodily harm includes debilitating and life-threatening illnesses and the consequences of child sexual abuse. There is reasonable certainty that such harm will result if such injuries are imminent or if there is a present and significant risk that a person will suffer such injuries at a later date if counsel fails to take action to remedy the threat. Therefore, an attorney who knows that a client has inadvertently discharged toxic waste into a city's water supply should provide that information to authorities if there is a current and significant risk that a person drinking the water will have a debilitating or life-threatening condition disease ill. and disclosure by the attorneys is necessary to eliminate the threat or reduce the number of victims.

[17b] An attorney may be summoned as a witness to testify about a client, or may be directed to disclose information regarding the representation of a client by a court or other tribunal or governmental agency empowered under any other law that to bind disclosure. In the absence of the client's informed consent to do otherwise, attorney must assert on behalf of the client any non-frivolous allegation that the request is not authorized by any other law or that the information requested is protected from disclosure by attorney's privilege are. -Customers or other applicable laws. 🇧🇷 In the event of an unfavorable decision, the attorney will coordinate with the client the possibility of appeal to the extent required by RPC 1.4. However, unless a review is requested, subsection (c)(2) permits counsel to comply with the court order.

Act competently to maintain confidentiality

[18] Paragraph (d) requires an attorney to act competently to protect information relating to the representation of a client from unauthorized access by third parties and accidental or unauthorized disclosure by attorneys or others involved in representing the client. to protect. or which are subject to legal supervision.verRPC 1.1, 5.1 and 5.3. Unauthorized access or accidental or unauthorized disclosure of information relating to a client's representation will not constitute a breach of paragraph (d) if Counsel has made reasonable efforts to prevent access or disclosure. Factors to consider in determining the reasonableness of counsel's efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not in place, the cost of applying additional safeguards, the difficulty of implementation of the safeguards, and even the extent to which the safeguards affect the attorney's ability to represent clients (Physical education., making an important device or software unduly difficult to use). A client may request that an attorney implement special security measures not required by this rule, or may provide informed consent to waive security measures that would otherwise be required by this rule. Whether an attorney may be required to take additional steps to protect a client's information to comply with other laws, such as , is outside the scope of these rules. See RPC 5.3, comments [3]-[4] for a lawyer's duties when exchanging information with non-lawyers outside of his firm.

[19] When transmitting a communication containing information to represent a client, the attorney must take reasonable precautions to prevent the information from reaching unintended recipients. However, this obligation does not oblige the lawyer to take special security measures if the communication medium offers an adequate protection of privacy. However, special circumstances may call for special precautions. Factors to consider in determining whether the attorney's expectation of confidentiality is reasonable include the confidentiality of the information and the extent to which the confidentiality of communications is protected by law or nondisclosure agreement. A client may request that an attorney implement special safeguards not required by this rule or may provide informed consent to the use of any means of communication that would otherwise be prohibited by this rule. Whether an attorney is required to take additional steps to comply with other laws, such as B. State and federal laws on data protection, is outside the scope of these rules.

Ex-Customer

[20] The duty of confidentiality continues even after the end of the client relationship.verRPC 1.9(c). See RPC 1.9(c) for a prohibition on using such information to the detriment of the old customer.

LAST CROSS REFERENCES

"Fraud"verRPC 1.0(d)
"Informed Consent"verRPC 1.0(e)
"Reasonable"verRPC 1.0 (h)
"reasonably believes"verRPC 1.0 (me)
"significant"verRPC 1,0 (l)
"Aimed"verRPC 1,0 (m)

RULE 1.7: CONFLICT OF INTEREST: CURRENT CUSTOMERS

(a) Except as provided in paragraph (b), an attorney shall not represent a client where the representation involves an competing conflict of interest. A simultaneous conflict of interest exists if:

(1) representing one customer is directly disadvantageous to another customer; any

(2) there is a significant risk that the representation of one or more clients will be materially limited by the Attorney's responsibilities to another client, a former client or a third party, or by a personal interest of the Attorney.

(b) Notwithstanding the existence of a concurrent conflict of interest as referred to in paragraph (a), an attorney may represent a client if:

(1) Attorney reasonably believes that he will be able to competently and conscientiously represent each client concerned;

(2) identity theft is not prohibited by law;

(3) representation does not involve a claim by a client against another client who is being represented by counsel in the same litigation or other judicial proceeding; j

(4) Each affected customer gives an informed and written consent.

(c) An attorney may not represent more than one client in the same criminal or juvenile proceeding unless:

(1) Counsel demonstrates to the court that there is a good faith belief that no conflict of interest prohibited by this rule currently exists or is likely to exist; j

(2) Each affected customer gives informed consent.

Comment

General Principles

[1] Loyalty and independent judgment are essential elements of the attorney-client relationship. Simultaneous conflicts of interest may arise from the Attorney's responsibilities to another client, former client or third party, or the Attorney's own interests. See Rule 1.8 for specific rules relating to certain competing conflicts of interest. For prior customer conflicts of interest see RPC 1.9. For conflicts of interest affecting prospective clients, see RPC 1.18. See RPC 1.0(b) and (e) for definitions of “written confirmation” and “informed consent”. When an attorney represents two or more clients in a sincere and non-contentious effort to achieve a common goal in relation to the establishment, operation, modification or termination of a consensual legal relationship between them, RPC 2.2 applies and not this rule. 🇧🇷

[2] Resolution of a conflict of interest under this Standard requires that the counselor: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the substitution can be carried out despite the existence of a conflict, i. H. if the conflict is agreed; and 4) if so, consult the affected customers in accordance with paragraph (a) and obtain their informed consent, confirmed in writing. Customers affected by paragraph (a) include those customers listed in paragraph (a)(1) and one or more customers whose representation may be significantly restricted by paragraph (a)(2).

[3] A conflict of interest may exist prior to representation, in which case representation must be declined unless the Attorney obtains each client's informed consent under the terms of sub-paragraph b). In determining whether a conflict of interest exists, an attorney should use reasonable procedures, appropriate to the size and nature of the firm and practice, to determine the individuals and matters involved in both contentious and non-contentious matters.also seeComment on RPC 5.1. Ignorance caused by failure to initiate such proceedings does not excuse an attorney's breach of this rule. For information on whether an attorney-client relationship exists or, once established, continues, see comment [4] to RPC 1.3 and paragraph [18] of the scope.

[4] If a dispute arises after representation, the attorney should normally withdraw from representation unless he has obtained the client's informed consent under the terms of subparagraph b).verPR 1.16. When more than one client is involved, it depends on the attorney's ability to continue to represent one of the clients, both on the attorney's ability to discharge obligations to the former client and on the attorney's ability to adequately serve the client to represent. , with regard to the lawyer's duties towards the former client.verRPC 1.9;also seeComments [5] and [29] on this RPC (1.7).

[5] Unforeseen events, such as Changes in corporate affiliations and other organizations, or the addition or realignment of litigants, can create conflicts in the midst of representation, e.g. B. when a sued company is bought by the attorney on behalf of a client. by another client represented by the lawyer in a third-party matter. Depending on the circumstances, the lawyer may have the option to withdraw one of the declarations in order to avoid conflict. The attorney must seek court approval where necessary and take steps to minimize harm to clients.verPR 1.16. The lawyer must continue to maintain the confidence of the client whose representation he has evaded.verRPC 1.9(c).

Identification of conflicts of interest: directly disadvantageous

[6] Loyalty to a current customer prohibits giving a direct adverse portrayal to that customer without their express consent. Therefore, without consent, an attorney cannot act as counsel in one matter against a person whom he represents in another matter, even if the matters are unconnected. The client who is directly opposed to representation is likely to feel betrayed, and the resulting damage to the attorney-client relationship is likely to impair the attorney's ability to effectively represent the client. In addition, the client on whose behalf the contrary representation is made may have a legitimate concern that counsel will pursue that client's case less effectively out of deference to the other client; H. that the representation could be significantly restricted by the interests of the client, attorney to maintain representation. Current Client Likewise, a directly prejudicial dispute may arise when an attorney is required to hear a client who is a witness in a litigation involving another client, for example where the testimony is prejudicial to the client represented at the litigation. On the other hand, the simultaneous representation in external affairs of clients whose interests are only economically disadvantageous, as is the case with the representation of competing commercial companies in third-party disputes, does not usually represent a conflict of interest and must therefore not require the consent of the respective client.

[7] Immediately adverse conflicts can also arise in transactional disputes. For example, if an attorney is asked to represent the seller of a business in negotiations with a buyer represented by the attorney, not in the same transaction but on an unrelated matter, the attorney would not be able to provide representation without informed consent each um Customer.

Identification of conflicts of interest: material limitation

[8] Even where there are no direct conflicts between clients, a conflict of interest exists when there is a significant risk that an attorney's ability to consider, recommend or implement an appropriate course of action for the client would be materially impaired. as a result. of Attorney's other responsibilities or interests. In fact, a conflict eliminates alternatives that would otherwise be available to the customer. The mere possibility of consequential damages does not in itself require disclosure and consent. The critical questions are: how likely is it that conflicts of interest will arise, and if so, will this be the lawyer's independent professional judgment in considering alternatives or preventing courses of action that should reasonably be taken on behalf of the client, significantly affect? 🇧🇷

Attorney's Obligations to Previous Clients and Other Third Parties

[9] In addition to conflicts with other current clients, an attorney's duties of loyalty and independence may be affected by liabilities to former clients under RPC 1.9, or by liabilities of attorneys to third parties, such as attorney as trustee, executor, or corporate director.

conflicts of interest

[10] The lawyer's own interests must not stand in the way of representing the client. For example, when the probity of an attorney's own conduct in a transaction is seriously questioned, it may be difficult or impossible for the attorney to provide objective advice to the client. When an attorney engages in discussions about possible employment with an opponent of the attorney's client, or with a law firm representing the opponent, such discussions could significantly limit the attorney's representation of the client. In addition, an attorney must not allow related business interests to interfere with representation, such as by referring clients to a law firm in which the attorney has an undisclosed financial interest. See RPC 1.8 for specific rules regarding various personal conflicts of interest, including dealings with clients.also seeRPC 1.10 (Personal conflicts of interest under RPC 1.7 are not normally attributable to other attorneys in a law firm).

[11] When lawyers representing different clients in the same or substantially related matters are closely related or related by marriage, there can be a significant risk of betrayal of client trust and of the lawyer's familial relationship compromising loyalty. and independent professional judgment. Consequently, each client has the right to be informed of the existence and implications of the relationship between the attorneys before the attorney agrees to represent them. Thus, one lawyer refers to another lawyer (Physical education.,such as a parent, child, sibling or spouse) cannot normally represent a client in a matter in which that attorney is representing another party unless each client provides their informed consent. The professional exclusion due to close family relationships is personal and is not usually attributed to the partners of the law firms with which the lawyers are connected.verPR 1.10.

Sexual relations between lawyer and client

[12] The client relationship is a fiduciary relationship in which the lawyer holds the highest position of trust. Because of this fiduciary duty to clients, combining a professional relationship with an intimate personal relationship can raise concerns about conflicts of interest, compromised attorney and client judgment, and maintaining attorney-client privilege. These concerns can be particularly acute when an attorney is having a sexual relationship with a client. Such a relationship may create a conflict of interest under paragraph (a)(2) or violate other disciplinary rules and is generally reckless even in the absence of an actual violation of these rules.

[12a] Particularly when the client is an individual, the client's reliance on the attorney's knowledge of the law is likely to result in the attorney-client relationship becoming unequal. A sexual relationship between a lawyer and a client may involve an unfair abuse of the lawyer's position of trust and thus violate the lawyer's basic duty not to exploit the client's trust to the detriment of the client. In addition, such a relationship carries a significant risk that the attorney's emotional involvement will compromise the attorney's independent professional judgment. In addition, a fine line between professional and personal relationships can make it difficult to predict the extent to which communications are protected by attorney-client privilege, since communications are protected by professional privilege only when they occur in the context of the client-client relationship. 🇧🇷 Lawyer relationship. The client's own emotional involvement may make it impossible for them to give informed consent to these risks.

[12b] A sexual relationship with an organization's customer representative may not pose the same problems of inherent inequality as a relationship with an individual customer. However, the deterioration of the attorney's independent professional judgment and the protection of attorney-client privilege remain an issue, particularly when the outside attorney has a sexual relationship with a representative of the organization that oversees, directs, or regularly consults with the attorney. in relation to the legal affairs of the organization. An internal employee who has a close personal relationship with an external legal counsel may not be able to assess and waive a conflict of interest for the organization because of the employee's personal involvement, and another representative of the organization may need to decide whether You must provide information consenting to a waiver. The lawyer must take into account not only the disciplinary rules, but also the organization's personnel policy regarding sexual relations (for example, the prohibition of such relations between superiors and subordinates).

Interest from the person paying for the services of a lawyer

[13] An attorney 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 attorney's duty of loyalty or independence of judgment to the client.verRPC 1.8(f). Whether accepting payment from another source poses a significant risk that the client's legal representation will be materially limited by the attorney's own interest in paying attorneys' fees or by the attorney's liability to a payer who is also a co-client , then the attorney having jurisdiction must comply with the requirements of paragraph (b) before accepting any representation, including determining whether the dispute is consensual and, if so, obtaining confirmed written consent from the client.

Forbidden Representations

[14] In principle, clients can consent to representation despite a dispute. However, as indicated in paragraph (b), some disputes are non-consensual, meaning that the counsel involved cannot seek such an agreement or provide representation based on the consent of the client. If the lawyer represents more than one client, the issue of consent must be clarified for each client.

[15] Consent is generally determined by assessing whether clients' interests are adequately protected when clients are able to give informed consent to representation with a conflict of interest burden. Therefore, pursuant to paragraph (b)(1), representation is prohibited where counsel cannot reasonably, given the circumstances, conclude that he will be able to provide competent and diligent representation.verRPC 1.1 (Competence) and RPC 1.3 (Duty of Care).

[16] Paragraph (b)(2) describes disputes not consented to because representation is prohibited under applicable law. For example, substantive law in some states provides that the same attorney cannot represent more than one defendant in a capital case, even with the consent of the client, and under federal criminal statutes certain representations by a former government of attorneys are permitted despite the informed consent of the former client. In addition, voting rights in some states limit the ability of a government client, such as a municipality, to consent to a conflict of interest.

[17] Paragraph (b)(3) describes disputes that will not be consented to because of the institutional interest in vigorously advancing each client's position where clients are directly related in the same litigation or other proceedings in court. Whether customers are directly related within the meaning of this paragraph requires an examination of the context of the procedure. While this paragraph does not preclude multiple representation by counsel for opposing parties in mediation (since mediation is not a “judicial” process under RPC 1.0(m)), such representation may be precluded by paragraph (b)(1).

consent form

[18] Informed consent requires that each affected customer be aware of the relevant circumstances and the material and reasonably foreseeable way in which the conflict could affect that customer's interests.verRPC 1.0(e) (Definition of Consent Form). The information to be provided to the customer whose consent is sought depends on the nature of the dispute and the nature of the risks involved. When representing multiple clients in the same matter, the information provided must include the implications of joint representation, including the potential implications for loyalty, confidentiality and attorney-client privilege, and the benefits and risks involved.verComments [30] and [31] (impact of joint representation on confidentiality).

[19] In certain circumstances, it may not be possible to provide the disclosures required to obtain consent. For example, if the attorney is representing different clients in related matters and one of the clients refuses to consent to the disclosure necessary for the other client to make an informed decision, the attorney cannot properly solicit the latter's consent. In some cases, the alternative to joint representation may be for each party to have separate representation, which may incur additional costs. These costs, along with the benefits of separate representation, are factors that an affected client may consider when determining whether joint representation is in their best interest.

[19a] Except where otherwise provided by law, a government employee or entity may waive a conflict of interest under this rule like any other customer.

Confirmed written consent

[20] Point (b) requires that the solicitor obtain the client's informed and confirmed consent in writing. The required wording can consist of a document signed by the client or which the lawyer, after verbal consent, immediately records and transmits to the client.verRPC 1.0(b);also seeRPC 1.0(n) (Deed includes Electronic Transmission). If it is not possible to obtain or transmit the document at the time the client gives consent, the lawyer must obtain or transmit it within a reasonable time thereafter.verRPC 1.0(b). The requirement for a summary, in most cases, does not replace the need for the attorney to speak to the client to explain the risks and rewards, if any, of an alleged conflict of interest and reasonably available alternatives. and to provide the customer with a reasonable opportunity to weigh risks and alternatives and to raise questions and concerns. Rather, wording is necessary to convince customers of the seriousness of the decision the customer is about to make and to avoid disputes or ambiguities that might later arise without wording.

(Video) Mr Rules Keir Starmer Breaches Code of Conduct Eight Times!

withdrawal of consent

[21] A client who has consented to a dispute may withdraw his consent and, like any other client, terminate the attorney's representation at any time. Whether withdrawing consent to represent the client himself prevents attorney from continuing to represent other clients depends on the circumstances, including the nature of the dispute, whether the client withdrew consent due to a material change in circumstances, reasonable expectations of the client to other clients and if material damage occurs to the other clients or the lawyer.also seePR 1.9.

consent for future disputes

[22] Whether an attorney may properly require a client to waive future disputes is also governed by paragraph (b). The effectiveness of such waivers will generally be determined by the extent to which Customer reasonably understands the material risks involved in the waiver. The more complete the explanation given to Customer of the types of future representations that may arise and the actual and reasonably foreseeable adverse consequences of those representations, the more likely that Customer will have the required understanding. Therefore, if the customer agrees to consent to a particular type of dispute with which they are already familiar, the consent will normally be effective with respect to that type of dispute. If the consent is general and open, it is generally ineffective since the customer is not likely to have understood the material risks involved. However, if the client is an experienced user of the legal services in question and is reasonably aware of the risk of a dispute, such consent to a future dispute is more likely to be effective, particularly ifPhysical education.the client will be independently represented by another lawyer after consent and the consent is limited to future disputes not related to the subject matter of the representation. In any event, prior consent may not be effective if circumstances arise in the future which render the dispute inconsistent with paragraph (b).

disputes in court proceedings

[23] Paragraph (b)(3) prohibits representation of opposing parties in the same dispute, regardless of consent. On the other hand, the simultaneous representation of parties whose interests may conflict, such as joint plaintiffs or co-defendants, is governed by paragraph (a)(2). A conflict may arise because of a material discrepancy in the statements of the parties, an inconsistency of positions regarding a counterparty, or the fact that there are materially different ways of resolving the claim or liability involved. Such conflicts can arise in both civil and criminal cases.

[24] In general, a lawyer may take conflicting legal positions in different courts at different times for different clients. The mere fact that defending a legal position on behalf of a client may set a precedent contrary to the interests of a client represented by counsel in an external matter does not create a conflict of interest. However, a conflict of interest arises where there is a significant risk that an attorney's action on behalf of a client will materially limit the attorney's effectiveness in representing another client in another case, for example where a decision in favor of a client sets a precedent that could seriously undermine the position taken on behalf of the other customer. Relevant factors in determining whether clients need to be informed of the risk include: when cases are pending; whether the problem is physical or procedural; the temporal relationship between subjects; the importance of the issue to the immediate and long-term interests of affected customers; and clients' reasonable expectations of engaging counsel. If there is a significant risk of material limitation, the counsel must, in the absence of informed consent from the clients concerned, reject one of the representations or retreat from one or both of these points.

[25] Where an attorney represents or attempts to represent a group of plaintiffs or defendants in a class action, unidentified members of the group will not normally be treated as attorney's clients for the purposes of applying paragraph (a) of these Articles. 🇧🇷 For example, with respect to RPC 1.7(a)(1), an attorney is generally not required to obtain consent from such a person before representing a client suing the person in an unrelated matter. Likewise, an attorney wishing to represent an opponent in a class-action lawsuit typically does not require the consent of an anonymous member of the class that the attorney is representing in an unrelated matter.

out-of-court disputes

[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of direct adverse conflicts in transactional issues, see comment [7]. Relevant factors in determining whether a potential material limitation exists include the length and intimacy of attorney's relationship with the affected client(s), the attorney's duties, the likelihood of disagreements, and the client's potential for harm. of conflicts It is often about closeness and degree.verCommentary [8].

[27] Family members may reasonably require joint representation by a single lawyer in a family matter. Conflicts can arise, for example, in estate planning and estate administration. A lawyer may be engaged to prepare wills for different family members such as husband and wife and depending on the circumstances, a conflict of interest may arise. In the case of estate or trust management, the identity of the client may not be unique under Tennessee law. On the one hand, the customer is the trustee; In another perspective, the client is the estate or trust, including its beneficiaries. In order to comply with the Conflict of Interest Rules, the Attorney must clarify the Attorney's relationship with the parties involved.

[27a] It is often appropriate for an attorney to be trusted to represent more than one member of the same family in connection with your estate plans, more than one beneficiary with common interests in an estate or trust matter, or co-trustee of an inheritance. Multiple representation in such contexts can often result in more cost effective and better coordinated plans prepared by an attorney who has a better overall understanding of all relevant property and family considerations. Multiple representations of this type are appropriate where the client's interests in working together and achieving common goals outweigh any conflicting interests and the Attorney meets the requirements of Rule 1.7 for Informed Consent. A lawyer cannot represent clients whose interests actually collide in such a way that the lawyer cannot adequately represent their individual interests. Such conflicts of interest are so serious that rule 1.7 prohibits an attorney from accepting or continuing to represent multiple clients, even if each of the clients has informed consent.verRPC 1.7(b)(1). Unless the plan provides for the establishment, modification, or termination of an amicable relationship between clients and the intermediary counsel under RPC 2.2, the practice of multiple representation is governed by this rule.verRPC 2.2, Commentary [4].

[28] When a lawyer represents a client in a party capacity, whether as counsel, consultant or drafter of a legal opinion prepared on behalf of the client for use by third parties, this rule provides special protections for the client to ensure that the lawyer's loyalty is not diluted by the interests of other clients, the lawyer himself or third parties. However, this rule does not apply to conflicts of interest involving clients whom the attorney agrees to act as mediator. For example, when business people or family members seek the advice or assistance of an attorney to achieve a common goal, to achieve a common goal in relation to the establishment, conduct, modification or termination of a consensual relationship between them, such as a business or buying or selling real estate, RPC 2.2 applies. Likewise, RPC 2.2 applies when entering into an estate plan or other gratuitous transfer involves the creation, modification, or termination of an amicable legal relationship between client and agent acting counsel in connection with the transaction. Otherwise this rule applies. This rule also does not apply to conflicts of interest involving parties with whom an attorney agrees to act neutrally in resolving disputes.verPR 2.4.

Special Considerations for Joint Representation

[29] When considering representing multiple clients in the same matter, a lawyer should bear in mind that if joint representation fails because conflicting interests may not be reconciled, there will be additional expense, complications or even litigation can lead. Typically, if joint representation fails, the attorney is forced to cease representing all clients. In some situations, the risk of failure is so great that joint representation is obviously impossible. For example, an attorney may not provide joint representation for clients when contentious litigation or negotiations between them are imminent or contemplated. Furthermore, since the attorney must be impartial towards clients who are jointly represented, representing multiple clients is inappropriate where impartiality is unlikely to be maintained. When the relationship between the parties has already assumed antagonism, the likelihood that clients' interests can be adequately represented through joint representation is generally not very good. Other relevant factors are whether the lawyer will subsequently represent both parties on a permanent basis and whether it is a question of establishing or terminating a relationship between the parties.

[30] A particularly important factor in determining the appropriateness of joint representation is the impact on attorney-client privilege and attorney-client privilege. With regard to attorney-client privilege, the rule applies that confidentiality does not apply between jointly represented clients. Therefore, it should be understood that in the event of a dispute between customers, the privilege does not protect any of these communications and customers should be made aware of this.

[31] In relation to the duty of confidentiality, where one client asks the lawyer not to disclose information relevant to the joint representation to the other client, the continuation of the joint representation will almost certainly be inappropriate. This is because the Attorney has the same duty of loyalty to every client and every client has the right to be informed of anything relating to the representation that may prejudice the client's interests and the right to expect that the Attorney will protect them Information used benefits that customer.verPR 1.4. At the beginning of the joint representation and in connection with the process of obtaining informed consent, the lawyer must inform each client that the information will be shared and that the lawyer must step down if one client decides that important matters of representation are to be withheld from the others . In certain circumstances, it may be appropriate for counsel to proceed with representation where clients, after being properly informed, have agreed that counsel will keep certain information confidential. For example, the attorney 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 agrees to keep such information confidential with the informed consent of both clients to treat.

[32] Subject to the limitations set forth above, each client in joint representation is entitled to fair and diligent representation and the protection of RPC 1.9 in connection with any obligations to a prior client. The client also has the right to fire the attorney under RPC 1.16.

organizational customers

[33] An attorney representing a corporation or other organization does not necessarily represent a constituent or affiliated organization, such as a corporation, by virtue of such representation. B. a parent company or subsidiary.verRPC 1.13(a). Therefore, an organization's counsel is not prohibited from accepting adverse representation from an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the counsel, there is a Agreement between Attorney and Organization Client Attorney will avoid adverse representation of Client's affiliates, or Attorney's obligations to the organizational client or new client are likely to significantly limit Attorney's representation of the other client.

[34] An attorney for a corporation or other organization that is also a member of its board of directors must determine whether the responsibilities of the two roles may conflict. A lawyer may be retained to advise the Company on matters relating to the actions of the Directors. The frequency with which such situations may arise, the potential intensity of the conflict, the implications of the resignation of director counsel and the Company's ability to seek legal advice from alternate counsel in these situations should be considered. If there is a material risk that the dual role would affect the Attorney's independence of professional judgment, the Attorney should not serve as a director or cease acting as a consultant to the Company when a conflict of interest arises. Counsel should advise other board members that matters discussed at board meetings while counsel is present in his capacity as a director may not be protected by attorney-client privilege and that conflict of interest considerations may necessitate dissent by counsel. as a director or may request that the attorney and law firm decline to represent the company in any matter.

Joint representation of co-defendants in criminal or youth criminal proceedings

[35] The potential for a conflict of interest when representing multiple defendants in a criminal or juvenile crime case is so serious that an attorney must generally decline to represent more than one co-defendant. However, if Counsel elects such joint representation, paragraph (c) requires that Counsel establish, to the satisfaction of the Court, that there is good reason to believe that a conflict of interest prohibited by paragraph (b) does not currently exist or is likely to exist will exist . that will exist in the future. This statement reflects the same standard currently required by Tennessee Rule of Criminal Procedure 44(c).

[36] However, to avoid premature disclosure of tactics, strategy, or other information related to the defense, defense counsel may request that the court conduct an ex parte hearing to determine the adequacy of joint representation.verRPC 3.3(a)(3) (stating the duty of an attorney to be frank in an ex parte hearing);also seeRPC 3.5(b) (allows an attorney to speak ex parte before a judge where the law allows). Once the court is satisfied that there are no reasonable grounds to believe that a conflict of interest currently exists or is likely to exist, a rebuttable presumption arises throughout the proceeding that the joint representation meets the requirements of this rule. However, this presumption in no way relieves the Legal Counsel of any obligation imposed by these Rules should an actual conflict of interest subsequently arise.

[37] The question of whether a given minor is capable of giving informed consent is governed by another law. If, under that other statute, a particular juvenile lacks that capacity, subsection (c) does not permit joint representation by counsel for that juvenile and any other juvenile in the same juvenile justice proceeding. In determining the appropriateness of joint representation in a juvenile trial under subsection (c)(1), the court must also consider whether the affected minor is capable of and has given informed consent under (c)(1). two).

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Informed Consent" See RPC 1.0(e)
"Essential"verRPC 1.0(o)
"reasonably believes"verRPC 1.0 (me)
"Aimed"verRPC 1,0 (m)

RULE 1.8: CONFLICT OF INTEREST: CURRENT CUSTOMERS: SPECIFIC RULES

** Decision of the Federal Court of Justiceclarificationfrom Rule 1.8 – May 4, 2021**

(a) An Attorney shall not enter into any business transaction with, or knowingly acquire any property, possessions, security or other adverse financial interest for, any client unless:

(1) the transaction and the terms on which attorney is acquiring the interest are fair and reasonable to the client and are fully disclosed and communicated in writing so that the client can reasonably understand them;

(2) the Customer will be advised in writing of the advisability and given a reasonable opportunity to seek independent legal advice in connection with the Transaction; j

(3) the client gives its informed consent, in writing and signed by the client, to the material terms of the transaction and the attorney's role in the transaction, including whether the attorney will represent the client in the transaction.

(b) An attorney shall not use any information relating to the representation of a client to the detriment of the client unless the client provides his/her informed consent, except as permitted or required under these Rules.

(c) An Attorney shall not solicit from a client any material gift to the Attorney or any person connected with the Attorney, including a testamentary gift, or make on behalf of a client any instrument presenting to the Attorney or any person connected with the Attorney whatsoever Gift material, unless the attorney or other recipient of the gift is a relative of the client. For purposes of this paragraph, related party includes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the attorney or client has a close family relationship.

(d) Prior to completing the representation of a client, an attorney shall not enter into or negotiate an agreement granting the attorney literary or media rights in any performance or narration based on material information relating to the representation.

(e) An Attorney will not provide financial assistance to a Client in connection with any pending or proposed litigation except that:

(1) The lawyer may advance court fees and court costs, the reimbursement of which may depend on the outcome of the matter; j

(2) A lawyer who represents a penniless client can bear the court and legal costs for the client.

(f) An attorney will not accept remuneration or advice in connection with the representation of a client from anyone other than the client unless:

(1) the customer gives their informed consent;

(2) there is no prejudice to attorney's independent professional judgment or attorney-client relationship; j

(3) Information related to a client's impersonation is protected according to the requirements of RPC 1.6.

(g) An Attorney representing two or more clients shall not enter into an aggregate settlement of claims by or against clients or in any criminal proceeding, aggregate plea agreement or nolo contendere unless:

(1) each client has a reasonable opportunity to seek independent advice on the transaction; j

(2) Each customer gives their informed consent in writing and with the customer's signature. Attorney's disclosure must include the existence and nature of any claim or allegation involved and each person's involvement in the transaction.

(h) An attorney shall not:

(1) enter into an agreement prospectively limiting attorney's liability to a client or potential client for wrongdoing; any

(2) resolve any claim or potential claim of such liability with an unrepresented client or former client, unless counsel fully discloses all terms of the contract to the client in a manner that the client can reasonably be expected to understand and notifies you in writing beyond the expediency and gives the customer a reasonable opportunity to obtain independent legal advice in this regard.

(i) An Attorney shall not acquire any ownership interest in the cause of action or matter which the Attorney is pursuing on behalf of a client, except that the Attorney:

(1) obtain a legally permitted bond to secure attorneys' fees or expenses; j

(2) Contract with a customer for a reasonable contingency fee in a civil proceeding.

j) [Reserved]

(k) While solicitors are affiliated with a firm, a prohibition in paragraphs (a) to (i) above which applies to one of them shall apply to all of them.

Comment

Business transactions between client and lawyer

[1] The legal competence and training of the attorney together with the bond of trust between attorney and client create the possibility of extrapolation when the attorney is involved in a commercial, real estate or financial transaction with a client, such as a loan or sale or Investment transaction by an attorney on behalf of a client. The requirements of paragraph (a) must be met even if the transaction is not closely related to the subject matter of the representation, e.g. B. When an attorney drafting a will for a client determines that the client needs money for unrelated expenses and offerings ie a loan to the client. The rule applies to attorneys engaged in the sale of goods or services related to the practice of law, such as the sale of title insurance or investment services to existing clients of the law firm.verPR 5.7. It also applies to lawyers who acquire property from the estates they represent. It does not apply to ordinary fee or salary arrangements between client and attorney set out in RPC 1.5, although their requirements must be met when the attorney accepts an interest in the client's business, such as B. Stock, stock options or equivalent equity Interest in an unincorporated company or other non-monetary property as payment or security for the payment of all or part of a fee. This also applies if, after the start of the representation, the lawyer wishes to renegotiate the terms of the fee agreement with the client in order to reach a new agreement that is more favorable for the lawyer than the original agreement. In addition, the Rule does not apply to ordinary commercial dealings between attorney and client for products or services that the client generally markets to others, such as banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities. Publicity . In such transactions, counsel has no advantage in dealing with the client and the limitations in paragraph (a) are unnecessary and impractical.

[2] Paragraph (a)(1) requires that the transaction itself be fair to the customer and that its material terms be communicated to the customer in writing in a form reasonably understandable. Paragraph (a)(2) requires that the Customer also be informed in writing that it is advisable to seek independent legal advice. It also requires that the customer be given a reasonable opportunity to seek such advice. Paragraph (a)(3) requires that counsel obtain the client's informed consent in writing and signed by the client, both to the material terms of the transaction and to the role of counsel. If necessary, legal counsel should discuss the material risks of the proposed transaction, including any risks arising from the involvement of legal counsel and the existence of reasonably available alternatives, and should explain why advice from independent legal counsel is desirable.verRPC 1.0(e) (Definition of Consent Form).

[3] A client's risk is greatest when the client expects attorney to represent him/herself in the transaction, or when the attorney's financial interest poses a significant risk that attorney's representation of the client may be adversely affected by financial interests interests of the lawyer is significantly restricted. interest in the transaction. The role of attorney here requires that the attorney not only meets the requirements of subparagraph a), but also the requirements of RPC 1.7. According to this rule, the lawyer must disclose the risks associated with the lawyer's dual role as legal adviser and party to the transaction, such as: B. the risk that the lawyer will structure the transaction or provide legal advice in the best interests of the lawyer. . . at the customer's expense. In addition, the attorney must obtain the informed consent of the client. In some cases, the interest of the attorney may be such that RPC 1.7 prevents the attorney from obtaining client consent to the transaction.

[4] If the client is independently represented in the transaction, paragraph (a)(2) of this Rule does not apply and the requirement in paragraph (a)(1) for full disclosure will be satisfied by written disclosure by counsel to the involved in the transaction or by the client's independent advisor. Whether the customer was independently represented in the transaction is relevant to whether the settlement was fair and reasonable to the customer, as required by paragraph (a)(1).

Use of Performance Information

[5] The use of representation-relevant information to the detriment of the client violates the lawyer's duty of loyalty. Paragraph (b) applies when the information is used for the benefit of Attorney or a third party such as another client or business partner of Attorney. For example, if an attorney knows that a client intends to purchase and develop multiple properties, the attorney cannot use that information to purchase any of the client's competing properties or recommend that another client do so. The rule does not prohibit uses that do not harm the customer. For example, an attorney who learns of a government agency's interpretation of commercial law while representing a client may use that information appropriately for the benefit of other clients. Paragraph (b) prohibits the adverse use of Customer Information unless Customer provides their express consent, except as permitted or required under these Rules.verRPC 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), 8.1 und 8.3.

Gifts for Lawyers

[6] An attorney may accept a gift from a client if the transaction meets general standards of fairness. For example, a simple gift is acceptable as a gift for a holiday or as a token of appreciation. If a client offers counsel a substantial gift, paragraph (c) does not prohibit counsel from accepting it, although such gift may be revoked by the client under the undue influence doctrine, which treats client gifts as allegedly fraudulent. In any event, due to excess and client taxation concerns, an Attorney shall not propose that a substantial gift be made to or for the benefit of Attorney unless the Attorney is affiliated with the client as provided in paragraph (c). This rule does not prohibit an attorney from soliciting a gift or financial contribution from a client to a civic or charitable organization provided that the attorney or a person associated with the attorney does not derive any personal benefit from the gift or donation.

[7] Where the delivery of a substantial gift requires the creation of a legal instrument, such as B. a will or assignment, the client should seek impartial advice, which may be provided by another attorney. The only exception to this rule is when the client is a relative of the grantee.

[8] This rule does not prohibit an attorney from attempting to make attorney, or an associate or associate of attorney, executor of the client's estate or any other potentially lucrative fiduciary position. However, such appointments are subject to the general conflict of interest provision in PRC 1.7 where there is a significant risk that the Counsel's interest in the appointment will materially limit the Counsel's independent professional judgment in advising the client on the choice of an executor or other trustee. After obtaining the client's informed consent to the dispute, the attorney must inform the client of the nature and extent of the attorney's financial interest in the appointment and of the availability of alternative candidates for the position.

Literary Rights

[9] An agreement whereby an attorney acquires literary or media rights to represent creates a conflict between the client's interests and the attorney's personal interests. Correct customer impersonation steps can undermine the list value of an impersonation account. Paragraph (d) does not prohibit an attorney representing a client in a copyright-related transaction from agreeing that attorneys' fees consist of an equity interest in the property if the agreement complies with RPC 1.5 and paragraph (a) Hey). ) of this rule.

financial support

[10] Attorneys may not subsidize any lawsuit or administrative proceeding brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, as doing so would encourage clients to bring lawsuits that otherwise could not be brought . gives lawyers a very large financial stake in litigation. These dangers do not justify prohibiting a lawyer from paying court costs and court costs, including medical examination costs and costs of obtaining and presenting evidence, since these advances are practically indistinguishable from contingency fees and help to increase access to ensure courts. 🇧🇷 Also an exception that allows lawyers to represent penniless clients, pay court fees and court costs, regardless of whether those funds are used
A refund is guaranteed.

Person who pays for the services of a lawyer

[11] Lawyers are often asked to represent a client in cases where a third party indemnifies the lawyer in whole or in part. The third party can be a family member or friend, an indemnifier (e.g., a liability insurer), or a fellow customer (e.g., a company being sued along with one or more of its employees). Because third-party payers often have interests different from those of the client, including the interests of minimizing the amount spent on representation and knowing how the representation is progressing, attorneys are prohibited from accepting or continuing such representations unless: Attorney determines that there is no prejudice to Attorney's independent professional judgment and client's informed consent.also seeRPC 5.4(c) (which prohibits interference in an attorney's professional judgment by anyone who recommends, employs or pays the attorney to perform legal services for others).

[12] Sometimes it is sufficient for the lawyer to obtain the client's informed consent as to the fact of the payment and the identity of the paying party. However, if the fee agreement creates a conflict of interest for the attorney, the attorney must comply with RPC 1.7. The attorney must also comply with the confidentiality requirements of RPC 1.6. A conflict of interest exists under RPC 1.7(a) when there is a significant risk that the client's legal representation will be compromised by the attorney's own interest in the fee schedule or the attorney's liability to the third-party payer (e.g., where the third-party payer is a co-client). ). Subject to RPC 1.7(b), attorney may accept or continue representation with the informed consent of each affected client, unless the dispute is not consented to under this paragraph. Per RPC 1.7(b), consent must be in writing.

Aggregated Billings

[13] Differences in willingness to make or accept a settlement offer are inherent risks in representing multiple clients with a single attorney. Per RPC 1.7, this is one of the risks that must be discussed before beginning representation, as part of the process for obtaining informed consent from clients. In addition, RPC 1.2(a) protects each customer's right to have the final say in the decision to accept or reject a settlement offer and to plead guilty or not to plead guilty in a criminal proceeding. The rule set forth in this paragraph is a corollary of both rules and states that counsel must provide each client with a reasonable opportunity to seek independent counsel before making or accepting any settlement offer or court settlement on behalf of multiple clients Lawyer. in the transaction and inform each of them of all the essential terms of the agreement, including what the other customers will receive or pay if the agreement or reward offer is accepted.also seeRPC 1.0(e) (Definition of Consent Form). Attorneys representing a class of plaintiffs or defendants, or those acting in a derivative manner, may not have a full attorney-client relationship with each member of the class; however, these attorneys must comply with applicable class member notification rules and other procedural requirements to ensure adequate protection for the class as a whole.

Limitation of Liability and Resolution of Claims for Negligence

[14] Settlements that prospectively limit an attorney's liability for malpractice are prohibited because they tend to impair competent and diligent representation. In addition, many customers do not assess the desirability of entering into such an agreement before a dispute arises. However, this paragraph does not prohibit an attorney from entering into an agreement with a client to arbitrate claims of legal negligence, provided such agreements are enforceable and the client is fully aware of the scope and effect of the agreement. Nor does this paragraph limit the ability of Attorneys to act in a limited liability company where permitted by law, provided that each Attorney remains personally responsible to the client for his or her own conduct and the Firm satisfies the necessary conditions. are required by law, such as B. Provisions requiring notice to Customer or provision of appropriate liability insurance. It also does not prohibit an RPC 1.2 agreement that defines the scope of representation, although a definition of scope that renders representation duties illusory amounts to an attempt to limit liability.

[15] This rule does not prohibit settlements that resolve a claim or potential claim of wrongdoing. However, given the risk of a lawyer taking unfair advantage of an unrepresented client or former client, the lawyer must first advise that person in writing that independent representation is desirable in connection with such an arrangement. In addition, the attorney must provide the client or former client with a reasonable opportunity to find and consult with an independent attorney. The attorney must also disclose all terms of the contract in a way that the client can reasonably understand.

Acquisition of participations in legal disputes

[16] Paragraph (i) establishes the traditional general rule that lawyers are prohibited from acquiring a right to disputed property. Like paragraph (e), the general rule is based on ensuring and maintaining the common law and is intended to prevent the solicitor from having too much interest in the representation. In addition, it becomes more difficult for a client to fire the attorney if the attorney acquires an equity interest in the property being represented, if the client so desires. The Rule is subject to certain exceptions developed in applicable law and continued in these Rules. The exception for certain advances in court fees is set out in paragraph (e). In addition, paragraph (i) provides exceptions to statutory charges to secure attorneys' fees or expenses and contracts for reasonable contingency fees. In Tennessee, this may be statutory liens (verTennessee-Ann Code. §§ 23-2-102, 23-2-103 and 40-33-111), common law encumbrances or acquired by contract with the customer. When an attorney contractually acquires a security interest in property that has not been recovered through its litigation efforts, that acquisition is a commercial or financial transaction with a client and is subject to the requirements of paragraph (a). Agreements on contingency fees in civil cases are governed by RPC 1.5.

[17] [Intentionally omitted]

[18] [Intentionally omitted]

[19] [Intentionally omitted]

Accounting for bans

[20] Pursuant to subsection (k), the prohibition of conduct for sole counsel in subsections (a) through (i) also applies to all counsel associated in a firm with the personally prohibited counsel. For example, without compliance with paragraph (a), an attorney of a firm may not deal with a client of another member of the firm, even if the first attorney is not personally involved in representing the client.

LAST CROSS REFERENCES

"Parties"verRPC 1.0(c)
"Informed Consent"verRPC 1.0(e)
"knowledge" and "knowledge"verRPC 1.0(f)
"reasonable" and "reasonable"verRPC 1.0 (h)
"significant"verRPC 1,0 (l)
"Write"verRPC 1.0(n)

RULE 1.9: OBLIGATIONS TO PREVIOUS CUSTOMERS

(a) An attorney who has previously represented a client in a matter shall not represent any other person in the same or a substantially related matter in which the interests of that person are materially opposed to the interests of the former client, unless the former Client gives his informed consent. , confirmed in writing.

(b) Unless the former client provides informed consent confirmed in writing, an Attorney shall not knowingly represent any person in the same or substantially related matter in which a firm of which the Attorney was formerly affiliated previously represented a client :

(1) whose interests are materially opposed to that person; j

(2) About whom the attorney obtained the information protected by RPCs 1.6 and 1.9(c) relevant to the matter.

(c) An attorney who has represented a client in a matter, or whose firm or former firm has represented a client in a matter, shall not disclose any information relating to the representation or use such information to the detriment of the former client, except as (1) the prior client provides informed and confirmed consent in writing, or (2) these rules would permit or require attorney to do so with respect to a client, or (3) the information becomes public knowledge.

Comment

[1] Upon termination of an attorney-client relationship, an attorney has certain continuing obligations of confidentiality and conflicts of interest and therefore may not represent another client except in accordance with this Rule. Current and former prosecutors are only required to comply with this rule to the extent required by RPC 1.11.

switch sides on a topic

[1a] Representing one party in a court proceeding and then representing the others in the same matter clearly implies loyalty to the first client and protection of that client's confidence. Similar considerations apply to matters other than litigation. Therefore, an attorney negotiating a complex contract on behalf of a seller cannot waive the seller's interests in the same transaction and represent the buyer. Likewise, an attorney who has represented several clients in a matter would not normally represent either client against the others in the same matter after a dispute has arisen between the clients on the matter, unless all clients involved have consented.verCommentary [9].

[2] The scope of a "matter" for the purpose of this rule depends on the facts of a particular situation or transaction. The suitability of further representation depends on the scope of representation in the prior matter, the scope of the proposed representation in the current matter and its relationship to the prior matter. Attorney's involvement in a matter may also be a matter of degree. When an attorney is directly involved in a particular transaction, further representation of other clients with a material adverse interest in that transaction is clearly prohibited. On the other hand, a lawyer who has repeatedly handled one type of matter for a previous client is not precluded from later representing another client in a materially different matter of that type, even if subsequent representation implies an adverse attitude towards the previous client. Similar considerations may apply to the reassignment of military attorneys between defense and prosecution functions within the same military jurisdiction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be regarded as a change of sides in the matter.

Essentially related matters

[3] Matters are "substantially related" for the purpose of this provision if they involve the same business, litigation or other work that counsel conducted for the former client, or if there is a significant risk that confidential factual information would normally be compromised Earlier representation would greatly improve the client's position in the subsequent matter, unless that information has become public knowledge. Any inference or conjecture as to the nature of the Confidential Factual Information that would normally have been obtained from a prior representation may be overridden or refuted by Counsel by evidence relating to the information actually obtained from a prior representation.

Old customer loyalty

[3a] The matters are essentially related if they relate to the same transaction or legal dispute or other activities that the lawyer performed for the previous client. For example, an attorney may not challenge the validity of a document he has prepared on behalf of a future client if doing so would materially and adversely affect the previous client. Likewise, an attorney cannot represent an insolvent debtor to attempt to cancel a creditor's security interest contained in a document that the attorney previously prepared for the creditor. While later representation is a different matter, it is essentially related to the earlier matter as it involves work done for the former client. The Attorney's duty of loyalty survives the termination of the prior representation to the extent that it prevents the Attorney from depriving the former client of the benefit of the Attorney's prior activity on behalf of the former client.

confidentiality protection

[3b] Even if the current matter does not involve work previously performed by counsel for the previous client, it may still be materially connected to the previous matter if there is a significant risk that confidential factual information normally associated with of representation would significantly improve the position of the previous client in the subsequent topic. For example, an attorney representing a business owner who has obtained a great deal of private financial information about that person usually cannot represent that person's spouse in a divorce proceeding. Likewise, an attorney who has previously represented a client in obtaining environmental permits for the construction of a shopping center cannot represent neighbors who object to the rezoning of land on environmental grounds; However, the attorney would not be prevented from defending a tenant of the completed mall to oppose an eviction for non-payment of rent on grounds of significant kinship.

[3c] Previously confidential information disclosed to the public or other parties detrimental to the former customer will not normally be disqualified. Information acquired at a previous representation may become out of date over time, a factor which may be relevant to determining whether two representations are materially connected. Information that under these rules may be confidential for some purposes (so that, for example, a lawyer would not be free to discuss it publicly) may nevertheless be just as general, easily observed, or of little value in subsequent litigation. does not lead to the determination of an essential connection. Thus, while a lawyer may be proficient in a particular substantive area of ​​law while representing a client, this does not prevent the lawyer from subsequently representing another client contrary to the first in a matter involving the same legal issues, if the facts of the case are not material is connected. 🇧🇷 In the case of an enterprise customer, general knowledge of the customer's policies and practices does not usually preclude further representation; On the other hand, knowledge of certain facts obtained in previous representation and relevant to the matter in question normally precludes such representation. For example, an attorney may also consider a prior client's preferred approach to negotiating a settlement or negotiating commercial points in a transaction, willingness or unwillingness to be deposed by an adversary, or the financial capacity to support a large litigation or negotiation, to have met. Only when such information is directly relevant or of unusual value in the subsequent matter is it of independent significance in evaluating a material relationship.

[3d] Inquiries about the existence, disclosure and potential use of such confidential information may raise concerns and difficulties. Concerns about protecting a former client's confidential information would be counterproductive if, in order to obtain his protection, the former client were required to disclose in a public proceeding the specific communications or other confidential information that could be used in subsequent representation . On the other hand, closed-door or closed-door procedures may raise questions of fairness towards other parties. In addition, the interests of subsequent clients also preclude a thorough investigation of the precise nature of the subsequent client's legal representation and the nature of the exchanges between them.

[3e] The Substantial Relationship Test seeks to avoid the need to actually disclose confidential information by focusing on the general characteristics of the subjects involved and conclusions regarding the likelihood that the prior customer disclosed, leading to adverse effects on the subsequent one customers could be used. Depiction. Therefore, a former client is under no obligation to disclose confidential information obtained from counsel to create a significant risk that counsel has confidential information for use in the subsequent matter. Primarily, a preliminary determination of possession of such information may be based on the nature of the services the attorney performed for the prior client and the information an attorney providing such services would obtain in normal practice. However, consistent with maintaining the confidentiality of the former client, the investigation of the issues related to the prior representation should be as specific as possible so as to avoid unduly prejudicing the subsequent client's interest in the attorney of his choice and the attorney's ability , to the extent appropriate, to overrule any assumption or inference regarding the receipt or disclosure of Confidential Information by Attorney.

Lawyers moving between companies

[4] When lawyers are partners in a company but later disassociate themselves, the question of whether a lawyer should represent the company is more complicated. There are several conflicting considerations. First, the customer previously represented by that company must be reasonably certain that the principle of customer loyalty will not be compromised. Second, the rule should not be so broad as to prevent others from having reasonable opportunities for legal advice. Third, the rule must not unreasonably prevent lawyers from forming new associations and attracting new clients after they have left a previous association. In this context, it must be recognized that many lawyers now practice in offices, that many lawyers partially limit their practice to one area or another and that many lawyers move from one association to another several times during their career. Applying the concept of attribution with absolute rigor would result in a radical reduction in the ability of attorneys to move from one practice environment to another and the ability of clients to change attorneys.

[5] Paragraph (b) will only function to disqualify counsel if the counsel involved has actual knowledge of the information protected by RPCs 1.6 and 1.9(c). Thus, if a lawyer did not acquire any knowledge or information in relation to a specific client of the law firm while working in a law firm and that lawyer subsequently joined another law firm, neither the individual lawyer nor the second law firm is representing another client excluded from the same office. or any related matter, even if the interests of the two clients conflict.verRPC 1.10(b) for restrictions on a firm once an attorney has severed his association with the firm.

[6] The application of paragraph (b) depends on the particular facts of a situation, supported by any conclusions, inferences or working assumptions that can reasonably be made about how Attorneys work together. A lawyer has general access to the files of all clients in a law firm and regularly participates in discussions of their affairs; From this it should be concluded that such a lawyer actually has access to all information about all clients of the firm. On the other hand, another attorney may only have access to the files of a limited number of clients and may not participate in other clients' discussions. In the absence of information to the contrary, it must be assumed that this lawyer actually has information about the clients he actually serves, but not about other clients. In such an investigation, the burden of proof should lie with the company being prevented from doing so.

[7] Irrespective of the question of the exclusion of a law firm, a lawyer who changes professional association is still obliged to keep secret information about a previously represented client.verRPC 1.6 und 1.9(c).

[8] Paragraph (c) provides that information obtained by an attorney in the course of representing a client shall not subsequently be disclosed by an attorney or used by an attorney to the detriment of the client. However, the fact that an attorney has once notified a client does not prevent the attorney from using or disclosing publicly known information about that client when later representing another client.

[8a] Whether the information is generally known depends on all the circumstances that are relevant to obtaining the information. Information contained in books or records in public libraries,
B. in public archives such as authorities or in publicly accessible electronic data stores, it is generally known whether a specific piece of information can be obtained through publicly accessible directories and similar access methods. Information is not generally known if a person who has an interest in knowing the information could only obtain it through special knowledge or considerable difficulty or expense. Special knowledge is information about the whereabouts or identity of a person or other sources from which information can be obtained if these facts are not generally known. However, an attorney cannot justify the adverse use or disclosure of client information simply because the information became known to a third party if not public knowledge. While it is permissible to disclose information about representing a previous client, an attorney should not do so unnecessarily.

[9] The provisions of this Rule are designed to protect Previous Customers and may be waived if the Customer provides informed consent, which must be confirmed in writing in accordance with paragraphs (a) and (b).verRPC 1.0(e). On the Effectiveness of an Early WaiververComment [22] on RPC 1.7. With regard to the exclusion of a law firm to which a lawyer is affiliated or formerly affiliated,verPR 1.10.

relation to other rules

[10] Except in situations governed by RPC 1.11 and 6.5(a), RPC 1.9 applies in any circumstance where an attorney has previously represented a client as counsel, counsel, agent or drafter of a legal opinion acting on behalf of a Customers for use by third parties. Except as provided in RPC 2.4, RPC 1.9 does not apply to parties for whom counsel acts as neutral in resolving disputes. However, if counsel's acting as a neutral is materially prejudicial to a prior client and the dispute is materially related to prior representation, counsel must provide the prior client with the protections of RPC 1.9.

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Parties"verRPC 1.0(c)
"Informed Consent"verRPC 1.0(e)
"know" and known"verRPC 1.0(f)
"Material" and "material"verRPC 1.0(o)
"Essentially"verRPC 1,0 (l)

RULE 1.10: ATTRIBUTION OF CONFLICTS OF INTEREST: GENERAL RULE

(a) While Attorneys are affiliated with a firm, none of the Attorneys shall knowingly represent a client where an Attorney is only prohibited from doing so under CP 1.7, 1.9 or 2.2, except where the prohibition is based on the interests of the legal staff and without significant risk constitute a significant restriction of the representation of the client by other attorneys of the law firm.

(b) When an Attorney has severed his affiliation with a Firm, the Firm is not prohibited from representing any person whose interests are materially contrary to those of a client represented by a formerly affiliated Solicitor and not currently represented by the Firm is represented, unless:

(1) the matter is the same as or substantially related to the matter in which the Former Associate Counsel represented the Client; j

(2) Each attorney remaining with the firm has information protected by RPC 1.6 and 1.9(c) relevant to the matter.

(c) Except in relation to paragraph (d) below, when an Attorney is personally barred from representing a person with adverse interests against a client of a law firm with which the Attorney was formerly affiliated, other Attorneys currently affiliated with a firm are associated with o Notwithstanding paragraph (a) above, the Personally Disqualified Attorney may represent the person if both the Personally Disqualified Attorney and the Attorneys who will represent the person on behalf of the Firm act reasonably to:

(1) determine that the personally restricted attorney is barred from attending the representation of the current client; j

(2) determine that no attorney representing the current client has received information from the personally disqualified attorney relevant to the current matter and protected by RPC 1.9(c);

(3) implement prompt investigation procedures to effectively prevent the flow of information about the matter between the personally disqualified attorney and the firm's other attorneys; j

(4) Communicate in writing to the former customer the circumstances justifying the performance of the selection procedures required by this Standard and the steps taken to comply with this Standard.

(d) The procedures described in sub-paragraph (c) cannot be used to avoid the Company's alleged disqualification if:

(1) the disqualified attorney was instrumental in representing a previous client; j

(2) the previous client's legal representation was in connection with a legal proceeding that directly conflicts with the interests of a current client of the firm; j

(3) The legal dispute between the current client of the office and the former client of the lawyer is still pending at the time of the change of office of the lawyer.

(e) A disqualification required by this rule may be waived by the affected customer or former customer under the conditions set out in RPC 1.7.

(f) The disqualification of attorneys working in firms with former or current prosecutors is governed by RPC 1.11.

Comment

Definition of "signature"

[1] For the purposes of the Professional Code, the term "law firm" means lawyers in a law firm, a professional association, a sole proprietorship or any other association in which lawyers are permitted to practice law; or attorneys employed by a legal services organization or the legal department of a corporation or other organization.verRPC 1.0(c) (defined "company" or "law firm"). Whether two or more lawyers form a law firm within this definition may depend on the specific circumstances.verRPC 1.0, comments [2] - [4].

Principles of Presumed Disqualification

[2] The implied disqualification rule in paragraph (a) embodies the principle of client loyalty when applied to attorneys practicing in a law firm. Such situations can be viewed on the basis of the assumption that a law firm is essentially a lawyer for the purposes of client loyalty rules, or on the basis of the assumption that every lawyer is indirectly bound by the duty of loyalty to every lawyer with whom he is associated. Paragraph (a) applies only between Attorneys currently affiliated with a Firm. When an attorney moves from one office to another, the situation is governed by RPCs 1.9(b) and 1.10(b), (c) and (d).

[3] The rule in paragraph (a) does not prohibit representation if issues of customer loyalty and protection of confidential information are not addressed. For example, when a firm's attorney is unable to represent a particular client effectively because of strong political beliefs, but that attorney is not working on the case and the attorney's personal beliefs do not materially limit the representation of others in the firm. , the signature must not be disqualified. On the other hand, if an opposing party in a case belongs to an attorney of the law firm and other persons in the firm are materially prevented from pursuing the matter because of loyalty to that attorney, personal disqualification will be attributed to the attorney. more in the company.

[4] [Intentionally omitted]

Lawyers moving between companies

[5] When an attorney affiliated with a firm leaves the firm, the question of whether an attorney should provide prejudicial representation to clients of the former firm is more complicated. There are several conflicting considerations. First, the client previously represented by the former company must be reasonably certain that the principle of customer loyalty will not be breached and that confidential information related to the representation will not be used to the detriment of the client. Second, the rule should not be so broad that it precludes others from having reasonable opportunities for legal advice. Third, the rule must not unreasonably prevent lawyers from forming new associations and attracting new clients after they have left a previous association. In this context, it must be recognized that many lawyers now practice in offices, that many lawyers partially limit their practice to one area or another and that many lawyers move from one association to another several times during their career. Applying the concept of attribution with absolute rigor would result in a radical reduction in the ability of attorneys to move from one practice environment to another and the ability of clients to change attorneys.

[6] Paragraphs (a) and (b) govern the proxy disqualification of a law firm in the event that an attorney leaves the firm and continues or assumes the representation of a client previously represented by the firm, the firm ceases to represent the client and Lawyers who remain with the firm must represent the firm's former client materially disadvantaged. If the new matter relates substantially to a matter in which the Firm has previously represented the Client, the Firm may not, without the Client's prior consent, undertake any representation under paragraph (a) where any Counsel remaining with the Firm is barred under PRC 1.9 is (a) because the lawyer participated in the previous representation of the client. Alternatively, paragraph (b) prevents the Firm from accepting representation where an attorney remaining with the Firm has information protected by RPCs 1.6 and 1.9(c) relevant to the matter. On the other hand, if no remaining counsel represented the client or had confidential information, the firm may provide representation even if it is materially disadvantageous to the former client in a materially related matter.

[7] Paragraph (c) deals with the situation where an attorney leaves one law firm and joins another firm representing a client whose interests are materially at odds with a client of the new attorney's former firm. The new attorney may be personally disqualified from representing some of the new firm's clients because of his previous representation or acquisition of confidential client information from his previous law firm. With a limited exception set forth in paragraph (d), this personal disqualification will not be attributed to other attorneys in the personally disqualified attorney's new office if they acted reasonably to protect the confidentiality interests of those represented by the personally disqualified attorney's previous office protect person. 🇧🇷

[8] Paragraph (c) sets out the measures to be taken to protect the confidentiality interests of the client represented by the former personally disfellowshiped law firm. Requirements for selection procedures are defined in RPC 1.0(k) and RPC 1.0, comments [8]-[10]. Whether a firm's selection procedures are effective in preventing the flow of information about the matter between the personally disqualified attorney and the firm's other attorneys is a fact. Factors to be considered include a written statement by the personally disqualified attorney and the attorneys and office staff dealing with the matter in question that they are aware of and will comply with the selection processes conducted by the law firm; the structural organization of the law firm or law firm; the likelihood of contact between the personally disqualified attorney and the attorneys handling the matter; and the existence of strict rules and a file system that prevents unauthorized access to files related to the subject in question. The question that must be asked in any case is whether the review mechanism is effective in reducing to an acceptable level the potential for misuse of information relating to the representation of the personally disqualified attorney's former client. The summary required by paragraph (c)(4) must generally include a description of the attorney being reviewed's past legal practice and must be submitted as soon as reasonably practicable after the need for the review becomes apparent. You must also include a statement from the selected attorney and law firm that the client's material confidential information has not been disclosed or used in violation of the Rules. This briefing aims to allow the former client to evaluate and comment on the effectiveness of the selection procedures.

[9] The "appearance of impropriety" standard in the Code of Professional Responsibility has not been retained in this rule. However, paragraph (d) reaffirms the rule of law established byClinard vs Blackwood, 46 SW 3d 177 (Tennessee 2001). In this case, the Tennessee Supreme Court found that selection mechanisms were generally ineffective to prevent alleged disqualification of a law firm when an attorney "changed teams" during the course of a pending litigation. Although the celebration ofClinardBuilding on the previous standard of the Code of Professional Responsibility to protect against the "appearance of impropriety," the court also found that its decision was necessary to encourage communication between attorney and client and to avoid the impression that the judiciary was deliberating to client mobility favors problems. Consequently, theClinardRule continues under these rules. As inClinard, this narrow exception to paragraph (c) will indirectly disqualify the law firm only if the interests of a client of that firm are currently and directly opposed to those of a person previously represented in a substantial part by the disqualified attorney.

[10] A Customer may provide informed consent for any service prohibited by this rule under the same conditions required for informed consent for any service prohibited by RPC 1.7. Pursuant to RPC 1.7, before obtaining informed consent from a client, counsel must have a reasonable expectation that representation can be performed without material adverse effects. For a discussion of the effectiveness of customer waivers in future disputes, see RPC 1.7 comment [22]. For a definition of informed consent,verRPC 1.0(e).

[10a] The requirements specified in this standard apply to lawyers, paralegals, secretaries and other employees of a company, taking into account their respective areas of responsibility.

[11] If an attorney has entered a private practice after representing the government, the indictment is subject to RPC 1.11(b) and (c), not this rule. Under RPC 1.11(d), removal from office is governed by RPC 1.11(c)(1) when an attorney is representing the government after serving clients in private practice, non-governmental employment, or other government agency. The individual attorney involved is subject to the Rules generally, including RPCs 1.6, 1.7 and 1.9(c).

[12] Where an attorney is prohibited from participating in certain transactions under RPC 1.8, paragraph (k) of this rule, and not this rule, determines whether that prohibition applies to other attorneys personally associated with the attorney in a firm.

[13] The challenge of counsel affiliated with a former judge or arbitrator is governed by RPC 1.12. The disbarment of an attorney associated in a firm with an attorney who has been barred from a matter as a result of obligations under RPC 1.18 arising out of consultation with a prospective client is governed by RPC 1.18(d).

LAST CROSS REFERENCES

"company" and "firm"verRPC 1.0(c)
"Material" and "material"verRPC 1.0(o)
"Reasonable"verRPC 1.0 (h)
"bring to the screen"verRPC 1.0 (k)
"Essentially"verRPC 1,0 (l)
"Write"verRPC 1.0(n)

RULE 1.11: SPECIFIC CONFLICTS OF INTEREST FOR EX
AND CURRENT GOVERNMENT EMPLOYEES AND EMPLOYEES

(a) Except as expressly permitted by law, an attorney who has previously practiced as a government official or official may:

(1) subject to RPC 1.9(c); Y

(2) not to represent a client in relation to any matter in which the lawyer was personally and significantly involved as an officer or official, unless the competent governmental authority gives written, confirmed and informed consent to the representation.

(b) If Counsel is prohibited from acting under paragraph (a), no Counsel of any firm with which he is affiliated shall knowingly take over or continue to represent him in any such matter, save for the personally disqualified Counsel and Counsel the attorney-clients in the matter will act reasonably to:

(1) determine that the personally restricted attorney is barred from attending the representation of the current client; j

(2) determine that no counsel representing Client has obtained material Confidential Government Information relating to the matter; j

(3) implement prompt investigation procedures to effectively prevent the flow of information about the matter between the personally disqualified attorney and other attorneys in the firm; j

(4) Communicate in writing to the government body the circumstances justifying the use of the selection procedures required by this Standard and the steps taken to comply with this Standard.

(c) Except as expressly permitted by law, an attorney who has information known to him to be government confidential information about an individual obtained when the attorney was an officer or employee shall not represent a private client whose interests are contrary to him. that person in a matter where the information could be used to that person's material disadvantage. As used in this Rule, the term “Confidential Government Information” means information obtained under the authority of the Government and that the Government is prohibited by law from disclosing or that you have a privilege not to disclose at the time this Rule is applied to do. disclose and is not otherwise available to the public. A firm with which such counsel is affiliated may accept or continue to represent the matter only if the personally removed counsel and counsel representing the client in the matter meet the requirements set forth in paragraph (b).

(d) Except as expressly permitted by law, a solicitor acting as a public official or civil servant:

(1) subject to RPCs 1.7 and 1.9; j

(2) shall not:

(i) To become involved in any matter in which the Attorney had a personal and material interest while engaged in private practice or non-governmental employment, except with the informed consent of the appropriate governmental authority confirmed in writing has been, or as provided by applicable law, no one is or is authorized by statutory delegation to represent counsel in the matter; any

(ii) Private employment with any person taking part as a party or as a party representative in any matter in which the Counsel has a personal and material interest, except for a lawyer acting as a party representative in court or as a clerk for a judge, other decision maker or Arbitrators may negotiate private employment as permitted in RPC 1.12(b) subject to the conditions set forth in RPC 1.12(b).

(e) As used in this provision, the term “matter” includes:

(1) judicial or other proceeding, order, settlement or other determination, contract, demand, controversy, investigation, indictment, prosecution, arrest or other specific matter involving one or more specified parties; j

(2) any other matter covered by the conflict of interest rules of the relevant governmental agency.

Comment

[1] An attorney who has practiced or is currently practicing as a government official or official is personally bound by the professional ethics, including the prohibition of competing conflicts of interest under RPC 1.7 and the protections afforded to former clients in RPC 1.9. In addition, such counsel is subject to RPC 1.11 and state laws and regulations regarding conflicts of interest. Such laws and regulations may limit the extent to which the governmental authority can consent to this rule.verRPC 1.0(e) for the definition of consent.

[2] Paragraphs (a)(1), (a)(2) and (d)(1) affirm the duties of an individual attorney who has served or is currently serving as a government official or an employee of a private company. Client. Although RPC 1.10 does not apply to the conflicts of interest addressed in this Standard, paragraph (b) of this Standard allows for the selection and removal of attorneys that avoid criminal prosecution of attorneys who enter or exit positions as officials or employees in the same manner, as specified for other attorneys in RPC 1.10(c). Requirements for selection procedures are defined in RPC 1.0(k) and RPC 1.0, comments [8]-[10]. Because of the problems raised by impeachment within a government agency, paragraph (d) does not imply disputes between an attorney currently serving as a government official or employee and other related government officials or officials, although it would normally be advisable to investigate such lawyers.

[3] Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is prejudicial to a former client and is therefore intended not only to protect the former client but also to prevent a lawyer from harming him exploits office for the benefit of another client. For example, an attorney who has filed a lawsuit on behalf of the government may not bring the same lawsuit on behalf of a subsequent private client after the attorney has retired from public service unless appointed to do so by the government agency pursuant to paragraph (a). empowered. . Likewise, an attorney who has brought an action on behalf of a private client may not bring the action on behalf of the government except as permitted under paragraph (d). As with paragraphs (a)(1) and (d)(1), RPC 1.10 does not apply to conflicts of interest addressed in these paragraphs.

[4] This rule represents a balance of interests. Where the successive clients are a government agency and a private client, there is a risk that the powers or discretion of that agency could be used to the particular advantage of a private client. An attorney must not be in a position where the benefit of a private client interferes with the performance of his professional duties on behalf of the government. In addition, the private client may gain an unfair advantage by gaining access to confidential government information about the client's opponent, which can only be obtained through the government attorney's service. On the other hand, regulations for lawyers currently or formerly employed by a government agency must not be so restrictive as to impede the transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers and maintain high ethical standards. Therefore, a former prosecutor is disqualified only for specific matters in which the attorney was personally and materially involved. The selection and exemption provisions are necessary to prevent the exclusion rule from becoming too much of a barrier to entry into the public service. A similar function is served by limiting the response in paragraphs (a)(2) and (d)(2) to matters affecting a specific party or parties, rather than expanding the response to all material matters on which the Counsel was working Has.

[5] Where an attorney was employed by one governmental agency and then transferred to a second governmental agency, it may be appropriate to treat that second agency as another client for the purposes of this rule, e.g. B. When an attorney is employed by a city and then employed by a federal agency. However, as conflicts of interest are governed by paragraph (d), the latter body is not required to investigate the solicitor under paragraph (b), which a law firm is required to do. The question of whether two government agencies should be considered the same or different clients for conflict of interest purposes is beyond the scope of these rules.verRPC 1.13, Commentary [6].

[6] Paragraph (a)(2) does not require an attorney to notify the governmental agency at a time when premature disclosure might be detrimental to the client; an early disclosure obligation can prevent the lawyer from being commissioned. However, such notice must be given as soon as reasonably practicable so that the governing body has a reasonable opportunity to ensure counsel's compliance with RPC 1.11 and to take appropriate action if it believes counsel is not complying.

[7] Paragraph (c) only works if the relevant lawyer actually has knowledge of the information; it does not work with respect to information that could merely be attributed to the attorney.

[8] Paragraphs (b) and (d) do not prohibit an attorney from jointly representing a private party and a governmental agency where permitted by PRC 1.7 and not prohibited by law.

[9] Paragraph (d) does not exclude other counsel of the agency to which such counsel belongs.

[10] For the purposes of paragraph (e) of this rule, a "matter" may be continued elsewhere. In determining whether two specific issues are the same, counsel must consider the extent to which the issues involve the same fundamental facts, the same parties or related parties, and the elapsed time.

[11] Except where otherwise provided by law, a government employee or entity may waive a conflict of interest under this rule like any other customer.

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Parties"verRPC 1.0(c)
"Informed Consent"verRPC 1.0(e)
"know" and "know"verRPC 1.0(f)
"Material"verRPC 1.0(o)
"Reasonable"verRPC 1.0 (h)
"bring to the screen"verRPC 1.0 (k)
"Essentially"verRPC 1,0 (l)

RULE 1.12: FORMER JUDGE OR ARBITRATOR

(a) Except as provided in paragraph (d), an Attorney shall not represent any person in connection with any matter in which the Attorney has been personally and materially involved as a judge or other decision-maker or bailiff or counsel for that person or as an arbitrator, whether because all those involved in the process give their informed and written consent.

(b) An Attorney shall not negotiate for employment with any person who is a party or acting as counsel for a party in any matter in which the Attorney is personally and materially interested as a judge or other arbitrator or as an arbitrator. An attorney acting as counsel for a court or as an employee of a judge or other court official or arbitrator may negotiate with a party or attorney involved in a matter for employment in which the attorney personally and substantially involved, but only after counsel has notified the court, judge, other alerting officer, or arbitrator.

(c) If any Counsel is disqualified under paragraph (a), no Counsel in any firm with which that Counsel is affiliated shall knowingly take over or continue to represent the matter unless the disqualified Counsel and the Counsel who represent them for represented the client in the matter, have met the requirements set out in RPC 1.11(b)(1), (b)(2) and (b)(3) and have informed the competent court in writing of the circumstances that warrant the use of the required selection procedures justify this rule and the measures taken to comply with this rule.

(d) An arbitrator selected to assist a party in a multi-member arbitration panel shall not be prohibited from subsequently representing that party.

Comment

[1] This rule generally conforms to RPC 1.11. The term "personal and material" means that a judge who was a member of a multiple court and then gave up judicial office in order to practice law is not prohibited from representing a client in a pending case in court, but in the sense of the former judge did not participate. Likewise, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as counsel in a matter in which the judge had previously exercised remote or incidental administrative responsibility unrelated to the substance of the case. Compare the comment with RPC 1.11. The term "court officer" includes officers such as temporary judges, arbitrators, special teachers, hearing officers and other paralegals, and attorneys who serve part-time as judges. The provisions of Rule 10 of the Tennessee Supreme Court relating to the application of the Code of Judicial Conduct states that a part-time, acting or retired judge who is called to active duty “shall not act as counsel in any proceeding may appear in which the judge has acted as a judge or in other related proceedings.” Although worded differently than this rule, these rules correspond in meaning.

[2] As former judges, attorneys who have served as arbitrators may be required to represent a client in a matter in which the attorney was personally and significantly involved. These Articles of Association prohibit such representation unless all parties to the proceeding give their confirmed and informed written consent.verRPC 1.0(e) and (b). Other laws or codes of ethics that govern neutral third parties may impose stricter standards for personal or alleged exclusion.verPR 2.4.

[3] [Intentionally omitted]

[4] Requirements for selection procedures are defined in RPC 1.0(k) and RPC 1.0, comments [8]-[10].

[5] The notice, which contains a description of the selected lawyer's previous representation and the selection procedures used, should generally be sent as soon as possible after the need for selection has become apparent.

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Parties"verRPC 1.0(c)
"Informed Consent"verRPC 1.0(e)
"deliberately"verRPC 1.0(f)
"bring to the screen"verRPC 1.0 (k)
"Essentially"verRPC 1,0 (l)
"Aimed"verRPC 1,0 (m)
"Write"verRPC 1.0(n)

RULE 1.13: ORGANIZATIONAL CUSTOMERS

(a) An attorney employed or appointed by an organization shall represent the organization acting through its duly authorized members.

(b) If an organization's attorney determines that an officer, employee or other person associated with the organization is engaged in, intends or refuses to act in any matter related to the representation that constitutes a violation of the law and the organization's obligation or any breach of law that is reasonably attributable to the organization and that is likely to result in material harm to the organization, counsel will do as reasonably necessary in the best interests of the organization. Unless counsel reasonably believes that it is not in the best interests of the organization to do so, he or she should escalate the matter to a higher authority within the organization, including, where circumstances warrant, the highest authority acting on behalf of the organization can act. Organization in accordance with applicable law.

(c) If the highest authority that can act on behalf of the organization, despite the efforts of counsel under paragraph (b), proceeds or fails to promptly and adequately address a claim or failure to act, this is clearly a violation of the law and is likely to cause significant harm to the organization, counsel may resign pursuant to RPC 1.16 and disclose such information relating to the organization's representation only to the extent permitted by RPC 1.6 and 4.1.

(d) An Attorney who reasonably believes that he has been terminated as a result of legal action under paragraph (b) or (c) or who is retiring in circumstances which require or permit the Attorney to take action under any of these paragraphs , you must take such action as the counsel reasonably deems necessary to ensure that the highest authority in the organization is notified of the counsel's resignation or retirement.

(e) In dealing with the directors, officers, employees, members, shareholders or others of an organization, a solicitor must explain the identity of the client where the solicitor knows or reasonably ought to know that the interests of the organization are contrary to those of you members. Com quem o avocado lida?

(f) An attorney representing an organization may also represent any of its directors, officers, employees, members, shareholders or other interested parties, subject to the provisions of RPCs 1.7 and 2.2. Where RPC 1.7 or RPC 2.2 requires the organization's consent to dual representation, consent must be obtained from an appropriate organization officer who is not the person represented, or from the shareholders.

Comment

The company as a customer

[1] An organization customer is a legal entity but can only act through its officers, directors, employees, shareholders and other constituents. The executives, directors, employees and shareholders are the components of the business organization customer. The obligations set out in this commentary also apply to unincorporated associations. “Other Members”, as used in this Commentary, means the appropriate positions of officers, directors, employees and shareholders held by persons acting for corporate clients other than business.

[2] When a member of an organization customer communicates with the organization's attorney in that person's organizational function, the communication is protected by RPC 1.6. Thus, for example, if a client organization asks its attorney to investigate allegations of wrongdoing, interviews conducted between the attorney and the client's employees or other stakeholders in the course of that investigation fall under RPC 1.6. However, this does not mean that the members of an organization client are the attorney's clients. Attorney shall not disclose any information relating to the Representation to such Participants, except as expressly or impliedly authorized by the Organization Client to perform the Representation or as permitted under RPC 1.6.

[3] When the members of the organization make decisions for them, the decisions should normally be accepted by an advocate, even if there is any doubt as to their usefulness or prudence. As such, political and operational decisions, including those involving serious risks, are not within the competence of the lawyer. However, paragraph (b) clarifies that if counsel knows that the Organization will be materially harmed by the action of an employee or other member that violates a legal obligation to the Organization or violates a law attributable to the Organization could, the counsel is required to do what is reasonably necessary in the best interests of the organization. As defined in RPC 1.0(f), knowledge can be inferred from circumstances and an attorney cannot ignore the obvious.

[4] In deciding how to proceed under paragraph (b), counsel should consider the seriousness of the violation and its consequences, the organization's responsibility and the apparent motivation of the person involved, and the organization's policies in relation to such matters . , and all other relevant considerations. Normally, a referral to a higher authority would be required. However, in certain circumstances it may be appropriate for the solicitor to request the settlor to reconsider the matter or to take corrective steps; For example, if the circumstances involve an innocent misunderstanding of the law by a constituent and subsequent acceptance of counsel from counsel, the counsel may reasonably conclude that the best interests of the organization do not require the matter to be escalated to a higher authority. If a member continues to act contrary to the counsel's advice, the counsel must take steps to have the matter reviewed by a higher authority within the organization. If the matter is sufficiently serious and important or urgent to the organization, it may be necessary to escalate it to a higher authority in the organization, even if the attorney has not contacted the individual concerned. Any measures taken should minimize the risk of disclosure of proxy-related information to people outside the organization as much as possible. Even in circumstances where RPC 1.13 does not require an attorney to proceed, an attorney may bring an organization client's attention, including its maximum authority, to matters which the attorney reasonably believes are of sufficient importance to warrant, at best, such justify the cases. interest of the organization.

[5] Paragraph (b) also clarifies that where reasonably necessary for the organization to address the matter in a timely and appropriate manner, counsel should escalate the matter to a higher authority, including, where circumstances warrant, to the highest authority. who are permitted to act on behalf of the organization under applicable law. The highest authority in the organization to which a matter can normally be referred is the Board of Directors or similar governing body. However, applicable law may require that under certain conditions ultimate authority rests with another party, such as the independent directors of a corporation.

relation to other rules

[6] The powers and responsibilities provided for in this rule accompany the powers and responsibilities provided for in other rules. In particular, this Rule does not limit or extend Attorney's liability under RPC 1.6, 1.8, 1.16, 3.3 or 4.1. When an organization engages the services of counsel to further a crime or fraud on the part of the organization, RPCs 1.6(b)(1), 1.6(b)(2), and 1.6(b)(3) may den Allow Attorney to Disclose Confidential Information. In such circumstances, RPC 1.2(d) may also apply, in which case RPC 1.16(a)(1) may require revocation of representation.

[7] An Attorney who reasonably believes that he has been terminated as a result of Attorney's actions under paragraph (b) or (c) or who resigns in circumstances which require or permit the Attorney to act under any of these paragraphs Paragraphs, you must do as the counsel reasonably deems necessary to ensure that the highest authority in the organization is notified of the counsel's resignation or retirement.

government agency

[8] The obligation set out in this standard applies to government entities. Accurately determining the client's identity and determining the obligations arising from such counsel may be more difficult in a regulatory context and is outside the scope of this Regulation. See Scope, comment [19]. While the customer may be a specific government agency, it may also be a government agency such as the executive branch or the government as a whole. For example, if the act or omission affects the head of an office, the department to which the office belongs or the competent authority may be the client for the purposes of this standard. In addition, in a matter involving the conduct of government officials, a prosecutor may have more authority under applicable law to challenge such conduct than an attorney for a private organization in similar circumstances. Therefore, where the client is a government organization, a different balance between maintaining confidentiality and ensuring wrongdoing is prevented or corrected may be appropriate given the public affairs involved. In addition, the duties of prosecutors or military prosecutors may be defined by laws and regulations. This rule does not restrict that authority.verReach.

Clarify the role of the lawyer

[9] There are times when the interests of the organization may conflict, or become, with the interests of one or more of its members. In such circumstances, Counsel must inform any Member whose interests, in his opinion, conflict with the organization of the conflict or potential conflict of interest, that Counsel cannot represent him and that such individual may wish to obtain independent representation. Care should be taken that the individual understands that where such a conflict of interest exists, the organization's counsel cannot provide legal representation for that constituent person and that discussions between the organization's counsel and the individual cannot be privileged. 🇧🇷

[10] Whether the organization's counsel should issue such a warning to one of its members may depend on the facts of the case.

double representation

[11] Paragraph (f) recognizes that an organization's counsel may also represent a director or controlling shareholder.

Derivative Shares

[12] Under common law, shareholders or members of a company can sue to compel directors to perform their statutory duties of oversight of the organization. Members of unincorporated associations generally have the same right. Such a lawsuit may be nominally brought by the organization, but is usually actually a lawsuit over the organization's leadership.

[13] The question may arise as to whether the organization's counsel can defend such a claim. Claiming that the organization is a client of the lawyer alone does not solve the problem. Most derivative actions are a normal occurrence in an organization's business that, like any other lawsuit, must be defended by the organization's attorney. However, if the complaint contains serious allegations of wrongdoing by those in control of the organization, a conflict may arise between counsel's duty to the organization and counsel's relationship with the board. In these circumstances, RPC 1.7 governs who should represent the directors and organization.

LAST CROSS REFERENCES

"He knows"verRPC 1.0(f)
"Reasonable"verRPC 1.0 (h)
"reasonably believes"verRPC 1.0 (me)
"I should reasonably know"verRPC 1.0(j)
"significant"verRPC 1,0 (l)

RULE 1.14: CUSTOMER WITH REDUCED CAPACITY

(a) When a client's ability to make informed decisions regarding representation is impaired, whether by age, intellectual disability, or otherwise, counsel shall, as far as reasonably practicable, maintain a normal attorney-client relationship with maintained for the client.

(b) If Counsel O Attorney reasonably believes that the Client is incapacitated, at risk of physical, financial or other significant harm, unless action is taken and the Client is unable to reasonably acting in the client's own interests, making arrangements to take such action as is reasonably necessary, including consulting any person or entity capable of taking action to protect the client and, in appropriate cases, appointing a guardian ad litem, trustee or trustee apply for.

(c) Reduced capacity customer impersonation information is protected by RPC 1.6. By taking safeguards under paragraph (b), the Attorney has an implicit right under RPC 1.6(a) to disclose information about the Client, but only to the extent reasonably necessary to protect the Client's interests.

Comment

[1] The normal client relationship is based on the assumption that the client, with appropriate advice and support, is able to make decisions on important matters. However, if the client is a minor or lacks capacity of judgement, it may be that the usual client relationship cannot be maintained in all respects. In particular, a severely disabled person must not be authorized to make legally binding decisions. However, a client with a limited capacity usually has the ability to understand, reason, and draw conclusions that affect the client's own well-being. For example, it is understood that children as young as five or six, and certainly those as young as 10 or 12, have opinions that are entitled to carry weight in court proceedings relating to their custody. It is also recognized that some older people are perfectly capable of handling routine financial matters, although they may need special legal protection in relation to important transactions.

[2] The fact that a client has a disability does not diminish the attorney's obligation to treat the client with care and respect. Even if the person has a legal representative, the lawyer must, as far as possible, give the person represented the capacity of the client, namely to maintain communication.

[3] The client may wish to have family members or others involved in discussions with the attorney to assist in representing the client. If an attorney is considering such involvement of family members or others, the attorney must consider the impact of their presence on the enforceability of attorney-client privilege, a legal issue that is beyond the scope of these Rules. However, the attorney must put the interests of the client first and, save for the injunctive relief permitted in subparagraph (b), look to the client and not to family members in making decisions on the client's behalf.

[4] If a legal representative has already been appointed for the client, the lawyer should normally consult the representative when making decisions on behalf of the client. In matters involving a minor, it may depend on the nature of the case or matter in which the attorney is representing the minor whether the attorney should consider the parents to be legal guardians. If the attorney is representing the guardian vis-à-vis the custodian and is aware that the custodian is acting against the interests of the custodian, the attorney may have a duty to prevent or correct the misconduct of the custodian.verRPC 1.2(d).

take protective measures

[5] When an attorney reasonably believes that a client is at risk of physical, financial or other significant harm if no action is taken and that a normal attorney-client relationship as provided for in paragraph (a) is not maintained because of the client's inability to communicate or to make informed decisions regarding representation, then paragraph (b) permits the attorney to take such protective measures as he deems necessary. These steps may include: consulting family members, using a cooling off period to allow for clarification or amelioration of circumstances, using voluntary surrogate decision-making tools such as permanent powers of attorney or stakeholder consultation. support, professional services, adult protection agencies or others. or companies that are able to protect the customer. In taking protective measures, the lawyer should be guided by factors such as the client's wishes and values, as far as they are known, the client's best interests and goals to interfere as much as possible with the client's decision-making autonomy. , Maximizing the capabilities of the client. and to respect the client's family and social connections.

[6] In determining the extent of impairment of a client's legal capacity, counsel must consider and balance such factors as: the client's ability to articulate the arguments leading to a decision, mood swings and ability to assess the consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values ​​of the customer. In appropriate circumstances, the Attorney may seek the advice of an appropriate diagnostician.

[7] If no legal representative has been appointed, the lawyer should consider whether it is necessary to protect the interests of the client to appoint a guardian ad litem, curator or trustee. If a customer with limited legal capacity has significant assets that must be disposed of for the customer's benefit, the effective completion of the transaction may require the appointment of a legal representative. In addition, the rules of procedure in litigation sometimes provide that minors or persons with disabilities must be represented by a guardian or close friend if they do not have a general guardian. In many cases, however, the appointment of a legal representative can be more expensive or traumatic for the client than the circumstances really require. The assessment of such circumstances is subject to the professional judgment of the attorney. However, in considering alternatives, the attorney should be aware of any laws that require the attorney to defend the least restrictive measures on behalf of the client.

Disclosure of Customer Status

[8] Announcement of reduced customer capacity may adversely affect customer interests. For example, raising the issue of reduced ability may result in incarceration proceedings. Identity-related information is protected by RPC 1.6. Therefore, the Attorney may not disclose such information unless authorized to do so. The precautionary measures provided for in paragraph b) implicitly authorize the lawyer to provide the necessary information, even if the client tells him otherwise. However, given the risks of disclosure, paragraph (c) limits what an attorney may disclose when consulting with another person or entity or requesting the appointment of legal representative. At a minimum, the attorney should determine whether the person or organization being consulted is likely to act against the interests of the client before discussing client-related matters. The lawyer's position in these cases is bound to be difficult.

legal advice

[9] When the health, safety or financial interests of a seriously impaired person are at risk of imminent and irreparable harm, an attorney can take legal action on that person's behalf, even if that person cannot find a client. -Attorney relationship or to make or express considered judgments on the matter where the person or other person acting in good faith on that person's behalf has consulted the Attorney. But even in such a situation, counsel should not act unless, in his reasonable opinion, there is no other counsel, agent or other representative available to the person. Attorney may take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or prevent imminent and irreparable harm. A lawyer who undertakes to represent a person in such a demanding situation has the same duties under these rules as a lawyer has to a client.

[10] Lawyers acting on behalf of a severely incapacitated person who is threatened with imminent and irreparable harm must protect the confidentiality of the person as they would a client and disclose only to the extent necessary to achieve the intended protection. Plot. The attorney must disclose to any court involved and any other attorney involved the nature of his relationship with the person. The attorney must take steps to regulate the relationship or implement other protective solutions as soon as possible.

LAST CROSS REFERENCES

"Reasonable"verRPC 1.0 (h)
"reasonably believes"verRPC 1.0 (me)

RULE 1.15: STORAGE OF GOODS AND EQUIPMENT

(a) An Attorney must have property and funds from clients or third parties in the possession of an Attorney, in connection with segregated representation of the Attorney's own property and funds.

(b) Funds belonging to customers or third parties are deposited in a segregated account with a financial institution whose deposits are insured by the Federal Deposit Insurance Corporation (FDIC) and/or the National Credit Union Association (NCUA). has a deposit office in the state where the law firm is located (or elsewhere with the consent of the client or a third party) and participates in the overdraft reporting program under Rule 9 of the Supreme Court, Section 35.1. An attorney may deposit his own funds into such account solely to pay financial institution fees or service fees into such account, but only in an amount reasonably required for that purpose. The remaining assets will be marked as such and properly held. Full records of such funds and other assets will be maintained by the solicitor and will be retained for a period of five years after the representation has ended.

(1) Except as provided in sub-paragraph (b)(2), interest earned on accounts in which monies are deposited by customers or third parties, less any deductions for financial institution fees or service fees (other than overdraft fees) and any intangible taxes levied belonging to the deposited monies the clients or third parties whose monies are deposited without the solicitor having any right or title to such interest. Overdraft fees are not deducted from the interest earned and are the responsibility of the solicitor.

(2) A lawyer shall keep all client and third-party funds that are in the name or are likely to be held in short-term custody in such a way that the funds cannot generate any income in favor of the client or the third party beyond the costs of securing such income in one or more joint accounts, known as " Attorneys Interest Trust Account (“IOLTA”) as required by Rule 43 of the Supreme Court. An attorney shall not deposit money into an account for the purpose of complying with this Subsection unless the account participates in the IOLTA scheme under Rule 43.

(3) The decision as to whether funds should be deposited into an IOLTA account pursuant to subparagraph (b)(2) shall be at Attorney's discretion. No charge of ethical impropriety or other violation of professional conduct will accompany the exercise of an attorney's good faith judgment in such a determination.

(c) An Attorney shall deposit attorneys' fees and expenses paid in advance into a client's escrow account, which will be withdrawn by the Attorney only as fees are earned or expenses incurred.

(d) Upon receipt of any funds or other property in which a client or third party has an interest, an attorney will promptly notify the client or third party. Except as provided for in this Rule or as permitted by law or agreement with the Client, an Attorney shall promptly deliver to the Client or a third party any funds or other property that the Client or a third party is entitled to receive, at the Client's expense and demand or a third party, you must promptly give a full account of such funds or other property.

(e) If, in the course of the representation, an Attorney is in possession of property or funds on which two or more persons (one of whom may be the Attorney) are claiming interest, the Attorney will keep the property segregated until such time as is dissolved. 🇧🇷 🇧🇷 The lawyer will promptly distribute any property or funds whose interests are not in dispute.

(f) An attorney who learns of unidentified funds in an IOLTA account must do so
Efforts to identify funds and return them to the rightful owner. If, after 12 months from the discovery of the unidentified funds, the attorney determines that establishing ownership or ensuring the return of the funds will not be successful, the attorney must remit the funds to the Tennessee Lawyers Fund for Client Protection (TLFCP). No allegation of ethical impropriety or other breach of professional conduct will satisfy the reasonable judgment of attorney under this paragraph (f).

An attorney who mistakenly transfers funds or later establishes ownership of the transferred funds may file a claim with the TLFCP, which, after reviewing the claim, will return the funds to the attorney.

Comment

[1] An attorney should treat the property of others with the care required of a professional trustee. Securities are to be kept in a vault unless special circumstances justify another form of safekeeping. All client or third party assets, including potential clients, must be segregated from the attorney's business and personal assets and, if cash is involved, in one or more escrow accounts. Separate trust accounts may be warranted when administering endowment funds or performing similar fiduciary functions. An attorney must keep books and records up to date in accordance with generally accepted and reasonable internal control procedures and comply with record retention rules established by law or court order.see for example, Tennesseesup. Connecticut. R. 9.

[2] Paragraph (b) of this rule contains a basic requirement that a solicitor must hold client and third party monies in a segregated trust account. All such accounts, including IOLTA accounts, must be part of the overdraft termination scheme set out in Rule 9, Section 35.1 of the Supreme Court.

[3] Under Rule 43 of the Supreme Court, Tennessee attorneys are required to report compliance with their obligations regarding their IOLTA accounts and the handling of client funds and meet the technical requirements for establishing and maintaining such accounts. This RPC requires Tennessee attorneys to open IOLTA accounts only with qualified financial institutions. Tennessee attorneys may rely on the Rule 43 list of qualified financial institutions when establishing an IOLTA account to comply with subparagraph (b)(2).

[4] An attorney is also responsible for ensuring payment of any financial institution fees or service charges on such escrow accounts. Subparagraph (b)(1) of this Rule clarifies that any interest earned on non-IOLTA escrow accounts belongs to the client or a third party whose monies generate the interest and the interest earned by them is used by an attorney may pay commissions or bank charges. A detailed account of such interest and charges may be required to avoid payment of fees or service charges by a customer's financial institution or a specific matter (e.g., charges for a certified check made out solely in favor of a customer). 🇧🇷 other than the one on whose behalf the levy or fee was incurred.

[5] In deciding whether client or third-party funds should be deposited into an IOLTA account or a non-IOLTA escrow account, an attorney should consider several factors, including the amount of funds to be deposited; the expected duration of the deposit; the interest rate or yield available at the financial institution where the funds are deposited; Service charges, fees and other reasonably foreseeable costs associated with depositing funds; the cost of establishing and maintaining a non-IOLTA escrow account on behalf of the customer or a third party, including the cost of legal services and the cost of preparing any necessary tax reports for interest accrued on behalf of a customer or a third party; the ability of financial institutions or attorneys or law firms to calculate and pay interest to individual customers or third parties; and any other circumstances likely to affect the Client's or any third party's ability to generate revenue, in addition to any service charges, fees or other costs incurred in securing such revenue from funds.

[6] Subparagraph (b)(3) expressly acknowledges that an attorney's decision whether to deposit funds into an IOLTA account pursuant to subparagraph (b)(2) is discretionary and provides that an attorney, who makes such a decision, in good faith, will not be subject to disciplinary action for that decision. An attorney or law firm should review the account at reasonable intervals to determine if the amount of funds or expected duration changes the type of account into which funds are to be deposited.

[7] Under no circumstances shall overdraft fees charged to an escrow account be offset against escrow interest.

[8] To enable an attorney to pay reasonable financial institution fees or service fees into an escrow account, paragraph (b) of the Rule expressly relaxes the prohibition on commingling attorney's and client funds in an escrow account to facilitate an attorney's deposit the Escrow Account solely for the purpose of paying the Financial Institution's fees or charges for services, but only in an amount reasonably necessary for that very limited purpose. Lawyers must be very careful when exercising this limited permission to deposit funds into an escrow account, given the fundamental importance of the principle of non-mixing of funds.

[9] Lawyers typically receive funds from third parties who pay for legal fees. If there is a risk that the client will embezzle funds without paying the fees, the attorney has no obligation to remit to the client any monies which the attorney reasonably believes represent the fees due. However, a lawyer cannot afford to force a client to accept the position of lawyer. The disputed portion of the funds should be held in escrow and the attorney should suggest means of expeditious resolution of the dispute, such as B. Arbitration. The undisputed part of the funds will be paid out in a timely manner.

[10] Whether a fee paid in advance by a client must be paid into the client's escrow account depends on when the attorney receives the fee. An advance of money available to the attorney to pay attorneys' fees due or reimburse attorneys' fees incurred will be deposited into the client's escrow account. If the attorney earns the fees, the money will be withdrawn from the client's escrow account immediately and the client must be notified immediately of the withdrawal of the money. RPC 1.16(d) requires reimbursement of all portions of unearned attorneys' fees to the client until the representation is terminated.verRPC 1.5, Commentary [4] for a discussion of two situations where an upfront payment from a client is properly treated as earned fees and therefore cannot be deposited into the attorney-client's escrow account.

[11] Third parties, such as a client's creditors, may have claims against funds or other property in the care of an attorney. An attorney may be required under applicable law to protect such third party claims from improper interference by the client and may therefore refuse to release funds or other property to the client. However, a lawyer should not unilaterally take on the task of resolving a dispute between the client and the third party.

(Video) Puntong Legal Episode 17 Code of Conduct and Ethical Standards for Public Officials and Employees

[12] If two or more persons (one of whom may be the Attorney) have material grounds for a dispute as to who is entitled to any funds or other property of the Attorney, the Attorney, with due respect for his or her confidentiality obligations under RPC 1.6, may have a Bring an action to resolve the dispute in court, including an injunctive relief.

[13] The duties of a lawyer under this rule are distinct from those arising from an activity other than the provision of legal services. For example, an attorney acting only as a trustee will be subject to applicable law relating to trustees even if the attorney is not providing legal services in the transaction.

[14] In certain circumstances, Tennessee statute governing abandoned property may apply to monies in attorneys' escrow accounts or other property left in the hands of attorneys and may govern their disposition.verTennessee-Ann Code. Sections 66-29-101 to 66-29-204 (uniform asset disposal).

[15] Paragraph (a) of this rule requires an attorney to keep the property and funds of clients or third parties separate from the attorney's own property and funds. In addition, paragraph (b) provides that an attorney may deposit his own monies into a segregated escrow account "solely for the purpose of paying the financial institution's fees and service charges...". Taken together, these provisions require that an attorney promptly debit the attorney's fees earned by the attorney from the attorney's escrow account. In addition, an Attorney may not pay its own personal or professional expenses directly from the Escrow Account, even if the Escrow Account temporarily includes attorneys' fees earned by the Attorney; Instead, the attorney must withdraw the attorney's fees received from the escrow account and deposit such monies into the attorney's own account, from which the attorney pays his expenses.See, for example, vol. allison, 284 SW3d 316, 324-25 (Tennessee 2009).

LAST CROSS REFERENCES

"Reasonable"verRPC 1.0 (h)

RULE 1.16: REFUSAL OR TERMINATION OF REPRESENTATION

(a) Except as provided in paragraph (c), an Attorney shall not represent a client, or, when representation begins, shall cease to represent a client if:

(1) the representation results in a violation of the Code of Business Conduct or other law;

(2) the attorney's physical or mental condition materially impairs the attorney's ability to represent the client; any

(3) The lawyer is dismissed.

(b) Except as provided in paragraph (c), an attorney may resign from representing a client if:

(1) the withdrawal can be achieved without significantly impairing the interests of the customer;

(2) the Client adheres to any practice involving the services of Attorney that Attorney reasonably believes is criminal or fraudulent;

(3) the client has engaged the attorney's services to commit a criminal offense or fraud;

(4) the client persists in actions that the attorney deems repugnant or reckless;

(5) the client has materially breached an obligation to Attorney with respect to Attorney's services and has received reasonable notice that if the obligation is not performed, Attorney will resign;

(6) representation will result in a significant and unforeseen financial burden on attorney or client if it becomes unreasonably difficult;

(7) there is another valid reason for removal; any

(8) The client gives a confirmed written consent to the dismissal of the lawyer.

(c) An attorney must comply with any applicable law that requires notice or approval of a court upon termination of representation. Upon court order, a lawyer continues to represent you despite important reasons for ending the representation.

(d) An attorney who is dismissed from a client or ceases to represent a client must, to the extent reasonably practicable, take steps to protect the interests of the client. Depending on the circumstances, protecting Customer's interests may include: (1) giving Customer reasonable advance notice; (2) allow time to retain another attorney; (3) work with a successor attorney appointed by the client; (4) to promptly deliver the documents and assets to which the Client is entitled as well as all work products which the Attorney has prepared for the Client and for which the Attorney has received remuneration; (5) to promptly deliver to Client any other work product produced by Attorney, provided however that Counsel may retain such work product to the extent permitted by law, but only if retention of work product would not have material prejudice to Client in relation to the subject matter of representation ; and (6) promptly refund any prepayments for unearned fees or costs not incurred.

Comment

[1] An attorney should not accept representation in a matter unless it can be conducted competently, promptly, without undue conflict of interest and to completion. In general, representation in a matter is complete when the agreed assistance has been completed.verRPC 1.2(c) und 6.5;also seeRPC 1.3, Commentary [4].

Mandatory Revocation

[2] In general, a lawyer must refuse or withdraw from representation if the client requests that the lawyer engage in conduct that is unlawful or contrary to professional ethics or other laws. The lawyer is not obliged to refuse or resign simply because the client suggests such behavior; A client may make such a suggestion in the hope that an attorney will not be constrained by professional obligations.

[3] If a lawyer has been appointed to represent a client, the dismissal usually requires the consent of the appointing authority.also seeRPC6.2; On here. great Connecticut. A. 14. Similarly, applicable law generally requires court approval or notice before an attorney will withdraw from pending litigation.see for example, Tennessee crime. Connecticut. Application. A. 12. Difficulties may arise when the removal is based on a client's request that the attorney behave unprofessionally. The court may ask for a statement of waiver, while counsel may be required to keep secret the facts that would constitute such a statement. The attorney's statement that professional considerations would normally necessitate termination of representation should be accepted as sufficient. Attorneys should be aware of their obligations to clients and the court under RPCs 1.6 and 3.3.

Download

[4] A client has the right to terminate an attorney at any time, with or without cause, subject to the obligation to pay for the attorney's services. If a future exit dispute is anticipated, it may be advisable for the attorney to prepare a written statement detailing the circumstances. In the specific case of an in-house lawyer, the organization's employer may also be liable for damages for a retaliatory dismissal in breach of public order, but given the client's right to fire the lawyer, reinstatement would not be a problem. such circumstances.

[5] Whether or not a client can fire a hired attorney may depend on another law. A customer who wants this must be fully informed about the consequences. These consequences may include a decision by the appointing authority that the appointment of the successor lawyer is unjustified, which requires the client's self-expression.

[6] If the client is seriously incapacitated, the client may not have the legal capacity to dismiss the attorney, and in any event, the dismissal may be seriously contrary to the client's interests. Counsel must make special efforts to help the client consider the consequences and may reasonably take necessary safeguards as provided in RPC 1.14.

optional revocation

[7] An attorney may withdraw from representation in certain circumstances. The lawyer has the right to resign for any reason if this can be done without significantly harming the interests of the client. Revocation is also warranted where the client persists in a course of action which the solicitor reasonably deems criminal or fraudulent, as a solicitor has no obligation to be associated with such conduct even if the solicitor does not encourage it. Withdrawal is also permissible if the lawyer's services have been misused in the past, even if the client suffers considerable damage as a result. The lawyer can also resign if the client insists on an action that the lawyer considers repugnant or reckless. The resignation of the lawyer is also possible without giving reasons and even if the resignation would lead to a significant impairment of the interests of the client, if the client confirms the resignation of the lawyer in writing and agrees after clarification.

[8] An attorney may resign if the client refuses to comply with the terms of an agreement for representation, such as an agreement for attorneys' fees or costs, or an agreement limiting the purpose of representation. However, the lawyer must inform the client of the lawyer's intention to withdraw within a reasonable period of time.

Customer service in case of cancellation

[9] Even if the lawyer has been wrongly dismissed by the client, the lawyer must take all reasonable steps to mitigate the consequences for the client. In the event of the termination or revocation of representation for the client, the lawyer may only retain the result of the work prepared by the lawyer for the client but not paid to the lawyer as security for a fee if it does not have a significant adverse effect. of the client in relation to the object of representation and to the extent permitted by law. Attorney may, at Attorney's expense, make a copy of any materials in Client's file which Attorney will retain prior to service.

[10] Whether an organization's counsel may, in certain unusual circumstances, have a legal obligation to the organization after retiring or being dismissed by the highest authority of the organization is beyond the scope of these Rules.

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Scam" and "Scam"verRPC 1.0(d)
"Informed Consent"verRPC 1.0(e)
"Material" and "material"verRPC 1.0(o)
"Appropriate"verRPC 1.0 (h)
"reasonably believes"verRPC 1.0 (me)
"essential" and "essential"verRPC 1,0 (l)
"Aimed"verRPC 1,0 (m)
"Write"verRPC 1.0(n)

RULE 1.17: SALE OF JUSTICE PRACTICE

A lawyer or law firm may sell or buy a law firm or a division of the law firm, including goodwill, if the following conditions are met:

(a) the seller terminates the private law practice or the area in which the practice was sold in the geographic area in which the practice was practiced;

(b) The entire practice or practice is sold to one or more lawyers or law firms and the seller gives written notice to the buyer of the fee agreement with each of its clients and any other business. in connection with the representation of each client; j

(c) Seller shall notify each of its customers in writing of:

(1) the proposed sale, including the expected effective date of the proposed sale, the identity and office address of the buyer, a brief description of the scope and nature of the buyer's practice and its ability to represent the customer in accordance with the Code of Conduct professional;

(2) Customer's right to hire another attorney or to take possession of the record and any other property or funds in the possession of the selling attorney to which Customer is entitled;

(3) the duties of Buyer's Attorney under paragraphs (d) and (e) of this Rule and

(4) the fact that Customer's informed consent to Purchaser's representation and transfer of Customer's files will be presumed if Customer takes no action or objects within thirty (30) days of receipt of notice. If notice cannot be served on a customer, representation for that customer may be transferred to Buyer only by the issuance of an enabling order by a court of competent jurisdiction or by the judge of the judicial district in which Seller is located. Seller may disclose information about representation to the closed court only to the extent necessary to obtain an order authorizing the transfer of a registration.

(d) the fees charged to each customer are not increased as a result of the sale; j

(e) The buying attorney must comply with all other agreements between the selling attorney and the client relating to representation as permitted by these Rules.

Comment

[1] Law is a profession, not just a business. Customers are not commodities that can be bought and sold at will. Under this rule, if one attorney or an entire firm ceases to practice or practice in a legal matter and other attorneys or firms assume representation, the selling attorney or firm may receive fair value compensation for the firm as a partner in itself retire from law firms.verRPC 5.4 und 5.6.

Termination of practice by the seller

[2] The requirement that the entire private practice or branch of practice be sold is satisfied when the bona fide seller makes the entire practice or branch of practice available for sale to buyers The fact that several of the seller's customers are Therefore, choosing not to be represented by the buyers and doing business elsewhere does not constitute an infringement. A return to private practice as a result of an unanticipated change in circumstances will not necessarily result in a violation. For example, a lawyer who has sold the firm to take up judicial office does not breach the requirement that the sale be related to cessation of practice if the lawyer later resumes private practice by resigning from judicial office.

[3] The requirement that the provider give up the practice of private law does not prohibit employment as a staff barrister of a government agency or a legal service company providing legal services to the poor, or as an in-house barrister for an organization.

[4] The rule permits the sale of an entire practice after the private practice has been exempted from the law within the jurisdiction. Its provisions therefore serve the attorney who is disposing of the practice if he moves to another state. Tennessee is big enough that moving from one place to another justifies the attorney selling his office. Thus, the rule allows the practice to be sold if the attorney leaves the geographic area in which he practices.

[5] This rule also allows a lawyer or law firm to sell a practice. If a practice is sold and the attorney remains in active law practice, the attorney must cease accepting matters in the practice sold, whether as attorney or co-counsel or as joint and several liability on a case. in connection with the sharing of fees with another attorney, as RPC 1.5(e) would permit. For example, an attorney with a significant number of estate planning matters and a significant number of estate administration cases may sell the estate planning portion of the practice but remain in the legal practice by focusing on estate administration. However, this professional cannot take on any estate planning matters. While an attorney leaving a jurisdiction or geographic area would normally sell the entire practice, this rule allows the attorney to limit the sale to one or more practice areas, thereby preserving the attorney's right to continue practicing in those practice areas . 🇧🇷

Complete practice sale or complete practice subject area

[6] The rule requires that the seller's entire practice or area of ​​practice be sold. The ban on selling less than an entire practice protects clients whose affairs are less profitable and who may have difficulty finding another attorney if a sale can be limited to essential matters with fees. Buyers are obliged to carry out all customer transactions in the practice or in the practice area only with the consent of the customer. However, this requirement is also met if a buyer is unable to pursue a specific customer concern due to a conflict of interest.

Confidentiality, Consent and Customer Notice

[7] Negotiations between the seller and the prospective buyer prior to the disclosure of information relating to a particular representation of an identifiable customer do not violate the confidentiality provisions of RPC 1.6, nor does preliminary discussion of the possible association of other attorneys or mergers between their firms, for which does not require the customer's consent.verRPC 1.69b)(6). The provision of detailed information related to the representation, such as B. the customer file, to the buyer requires the consent of the customer. The rule provides that before the seller can disclose such information to the buyer, the customer must receive written notice of the proposed sale, including the information referred to in paragraphs (c)(1)-(3), and be informed as well Writing that the decision to consent or make other arrangements must be made within thirty (30) days. If nothing is heard from the customer within this period, consent to the sale is presumed.

[8] An attorney or law firm leaving the practice cannot be compelled to remain in the practice as some clients may not receive actual notification of the intended purchase. Because these customers cannot consent to the purchase or request any other disposition of their files, the rule requires an order from a competent court authorizing their transfer or other disposition. The court is expected to determine whether all reasonable efforts to locate the client have been exhausted and whether the legitimate interests of the absent client have been served by authorizing the transfer of the file to allow the buyer to continue representation. Maintaining client confidentiality requires that the preliminary injunction be negotiated in camera.

[9] All elements of client autonomy, including the client's absolute right to dismiss one attorney and delegate representation to another, survive the sale of the practice or practice.

Fee agreements between customer and buyer

[10] The sale cannot be financed by increased fees charged to clients of the practice. Existing agreements between seller and customer regarding fees and scope of work are to be observed by the buyer.

Other Applicable Ethical Standards

[11] Lawyers involved in the sale of a firm or practice are subject to the professional standards applicable to the involvement of another lawyer in the representation of a client. These include, for example, the seller's obligation to competently find a qualified buyer to perform the practice and the buyer's obligation to competently perform the representation (verRPC1.1); the obligation to avoid disabling conflicts and obtain the client's informed consent for those conflicts that may be agreed upon (verRPC 1.7 on conflict and RPC 1.0(e) on definition of informed consent); and the obligation to protect information related to representation (verRPC 1.6 und 1.9).

[12] If the rules of a court in which a matter is pending require authorization to substitute counsel for seller for buyer's counsel, such authorization must be obtained before the matter can be included in the sale.verPR 1.16.

applicability of the rule

[13] This rule applies to the sale of a law firm by agents of a deceased, disabled or missing attorney. Thus, the seller can be represented by a representative who is not a lawyer and is not subject to this regulation. However, since no attorney may participate in the sale of a law firm that does not comply with the requirements of this rule, representatives of the seller as well as the acquiring attorney can be expected to ensure compliance.

[14] Joining or leaving a law firm or professional association, retirement plans and similar arrangements, or a sale of property, plant and equipment of a law firm do not constitute a purchase or sale covered by this provision.

[15] These articles of incorporation do not apply to transfers of legal representation between lawyers where such transfers are not related to the sale of a firm or practice. This rule also does not apply to business combinations.

LAST CROSS REFERENCES

"Law firm"verRPC 1.0(c)
"Informed Consent" See RPC 1.0(e)
"Written" See RPC 1.0(n)

RULE 1.18: OBLIGATIONS TO THE PROSPECTIVE CLIENT

(a) A prospective client is a person who is consulting with counsel about the possibility of establishing an attorney-client relationship in relation to a matter.

(b) Even if no attorney-client relationship is formed, an attorney who has received information from a prospective client must not use or disclose that information except as RPC 1.9 would permit in relation to information from a previous client .

(c) An Attorney under paragraph (b) shall not represent a client whose interests are materially at odds with those of a prospective client in the same or a materially related matter where the Attorney has received information from the prospective client which could be materially prejudicial. to the potential customer, that customer. prospective customer in the matter, subject to the provisions of paragraph (d). If an attorney is deprived of representation under this paragraph, no attorney of any firm with which the attorney is affiliated shall knowingly accept or continue to represent in such matter, except as provided in paragraph (d).

(d) If Counsel has received disqualifying information under paragraph (c), representation is permissible if:

(1) both the customer concerned and the interested party have given their informed and confirmed consent in writing or:

(2) the attorney receiving the information has taken reasonable steps to avoid being exposed to more disqualifying information than is reasonably necessary to determine whether or not to represent the prospective client; j

(i) the disqualified counsel will be given timely protection from any involvement in the matter; j

(ii) the prospective customer is promptly notified in writing.

(e) In the absence of an attorney-client relationship, a prospective client shall have the right, upon request, to have the attorney return all documents and assets in the possession, custody or control of the attorney and those of the prospective client provided in connection with taking into account the topic of the prospective customer.

Comment

[1] Like clients, prospects may provide information to an attorney, place documents or other property in the custody of the attorney, or rely on the advice of the attorney. An attorney's consultations with a prospective client are usually limited in time and depth, leaving both the prospective client and attorney free (and sometimes compelled) not to proceed. Therefore, prospective customers should receive some, but not all, of the protection afforded to customers.

[2] A person becomes a prospective client by consulting an attorney about the possibility of entering into a client relationship in relation to a matter. Whether communications, including written, oral or electronic communications, constitute an investigation depends on the circumstances. For example, an investigation is likely to have taken place when an attorney, either in person or through the attorney's promotion in any media, specifically requests or solicits the transmission of information about potential representation without clear notices and warnings. and reasonably understandable, which limit the lawyer's duties, and a person gives information in response.also seecomment [4]. On the other hand, a request does not exist when a person provides information to an attorney in response to an advertisement that merely describes the attorney's education, experience, practice areas, and contact information, or provides legal information of general interest. Such a person unilaterally provides information to an attorney without reasonably expecting that the attorney will be willing to discuss the possibility of entering into a client relationship and is therefore not a "prospective client". In addition, a person who contacts an attorney with the aim of disqualifying him is not a "prospective client".

[3] It is often necessary for a potential client to disclose information to the lawyer as part of an initial consultation before a decision is made on establishing an attorney-client relationship. The attorney generally needs to know this information to determine if there is a conflict of interest with an existing client and if the attorney is willing to pursue the matter further. Paragraph (b) prohibits attorney from using or disclosing this information except as permitted under RPC 1.9, even if the client or attorney elects not to seek representation. This obligation applies regardless of how short the initial meeting is.

[4] In order to avoid obtaining information from a prospective client that could be materially damaging if used in the matter, an attorney considering whether or not to pursue a new matter should limit the initial investigation to only information matter that seems reasonably necessary to the matter. Goal. If the information indicates that there is a conflict of interest or other reason for the lack of representation, the attorney must notify the prospective client or refuse representation. If the prospective client wishes to retain counsel and consent is possible under RPC 1.7, consent must be obtained from all affected current clients before representation is accepted.

[5] With the informed consent of the prospect, a lawyer and a prospect may agree in advance that no information disclosed during the consultation will prevent the lawyer from representing another client on the matter.verRPC 1.0(e) for the definition of consent. If the contract expressly provides for this, the potential client can also agree to the subsequent use by the lawyer of the information received from the potential client.

[6] Even absent an agreement under paragraph (c), the legal adviser is not prohibited from representing a client with interests conflicting with those of the prospective client in the same or a materially related matter, unless the legal adviser has the interests of the Prospects receive information that could be significantly harmful if used in the matter.

[7] Pursuant to paragraph (c), the prohibition in these Articles is to be imputed to other counsel as provided in RPC 1.10, but pursuant to paragraph (d)(1) the attribution may be avoided if the counsel obtains informed consent. , confirmed in writing by both interested parties and affected customers. Alternatively, prosecution can be avoided if the conditions of paragraph (d)(2) are met and all disqualified attorneys are reviewed in a timely manner and the prospective client is promptly notified in writing.verRPC 1.0(k) and comment [8]-[10] (requirements for selection procedures).

[8] Notification, including a general description of the matter on which legal counsel was consulted and the selection procedures used, should generally be made as soon as possible after the need for review becomes apparent.

[9] Due to the duty of the lawyer who assists a potential client in the matter,verPR 1.1. For the duties of a lawyer when a prospective client entrusts valuables or papers to the care of the lawyer,verPR 1.15.

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Parties"verRPC 1.0(c)
"Informed Consent"verRPC 1.0(e)
"deliberately"verRPC 1.0(f)
"reasonable" and "reasonable"verRPC 1.0 (h)
"Apantalado"verRPC 1.0 (k)
"Written"verRPC 1.0(n)
"Essential"verRPC 1.0 (p)

EPISODE 2

THE LAWYER AS CONSULTANT, MEDIATOR,
AND NEUTRAL DISPUTE RESOLUTION

RULE 2.1: CONSULTANTS

When representing a client, an attorney exercises independent professional judgment and offers honest advice. When giving advice, a lawyer may refer not only to the law, but also to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation.

Comment

Scope of Advice

[1] A client is entitled to direct advice that reflects the lawyer's honest assessment. Legal advice often involves uncomfortable facts and alternatives that a client may not be willing to face. In presenting advice, the solicitor endeavors to uphold the morale of the client and may present the advice as acceptably as honesty will permit. However, a lawyer should not be discouraged from giving honest advice where there is a possibility that the advice might be uncomfortable for the client.

[2] Advice formulated in strictly legal terms may be of little value to a client, particularly when practical considerations such as cost or impact on others outweigh. Purely professional legal advice can therefore sometimes be inappropriate. It is right for a lawyer to refer to relevant moral and ethical considerations when giving advice. Although a lawyer is not a moral adviser as such, moral and ethical considerations influence most legal issues and can have a significant impact on the application of the law.

[3] A client may expressly or tacitly request purely professional advice from the lawyer. If such a request is made by a client experienced in legal matters, the attorney may accept it at face value. However, where such a request is made by a client who is inexperienced in legal matters, the attorney's responsibility as attorney may include advising that there may be more than purely legal considerations involved.

[4] Questions that go beyond purely legal questions can also fall within the domain of another profession. Family problems may include problems in the professional field of psychiatry, clinical psychology, or social work; Business matters may include matters falling within the purview of the accounting or financial professional profession. If consultation with a professional in another field is itself something a competent attorney would recommend, the attorney should make such a recommendation. At the same time, a lawyer's best advice is often to recommend a course of action in the face of conflicting expert advice.

offer advice

[5] In general, an attorney is not expected to provide advice until requested by the client. However, where counsel is aware that a client is proposing a course of action that is likely to result in material adverse legal consequences for the client, counsel's duty to the client under RPC 1.4 may require counsel to provide advice if the client's course of action Action is related to representation. Where a matter is likely to involve litigation, RPC 1.4 may require the Customer to be advised on forms of dispute resolution that may be reasonable alternatives to litigation. In general, an attorney is under no obligation to initiate an investigation into a client's business or to provide advice that the client has indicated he or she does not want, but an attorney may initiate advice from a client when it is in the best interest to do so the client appears interested in this.

LAST CROSS REFERENCES

none.

RULE 2.2: LAWYER AS INTERMEDIARY BETWEEN CLIENTS

(a) An Attorney will represent clients as an intermediary when the Attorney is providing impartial legal advice and assistance to two or more clients who are making sincere and non-opposing efforts to achieve a common goal in connection with the formation, operation, modification or termination of a consensual legal relationship between them.

(b) An attorney shall not represent two or more clients as mediator in any matter unless:

(1) counsel among clients reasonably believes that the matter can be resolved on terms that are in the best interests of each client, that each client will be able to make appropriately informed decisions about the matter, that only a there is a low risk of harm is essential to the interests of one of the clients if the intended solution is not successful and that the mediation can be carried out impartially;

(2) The legal representation of another client, responsibilities towards a former client or third party or the personal interests of the lawyer or the legal representation, responsibilities or personal interests in connection with the lawyer in a law office do not prevent the lawyer from granting each of them a to provide competent and careful representation to the clients for whom the lawyer acts as an intermediary;

(3) The lawyer discusses with each client:

(i) the duties of counsel as mediator;

(ii) the impact of mediation (including the benefits and risks involved, the impact of mediation on attorney-client privilege and the impact of mediation on attorney's other confidentiality obligations);

(iii) any circumstance materially affecting Attorney's impartiality towards Clients; j

(iv) representation of Attorney in any other matter of a client whose interests directly conflict with the interests of any of the clients and any liability of Attorney to any previous client or third party and any personal interest of Attorney or representation, personal interest or responsibility of any Attorney, who is associated with Counsel in a transaction that presents a significant risk of materially limiting Counsel's representation of a client for whom Counsel is acting as an intermediary; j

(4) Each Client shall give written, confirmed and informed consent to the representation by the Attorney, and each Client shall authorize the Attorney to disclose to any of the other Clients represented in the matter any information relating to the representation, to the extent that the Attorney reasonably assumes that it is required to comply with RPC 1.4.

(c) In representing clients as an intermediary, the solicitor must:

(1) act impartially to assist clients in achieving their common goals;

(2) between clients, treat as RPC 1.6 protected information any broker-related information that attorney has been authorized by each client to disclose to other clients to the extent attorney reasonably deems necessary to comply with RPC 1.4; j

(3) Discuss with each client the decisions to be made regarding the placement and the relevant considerations in making them so that each client can make appropriately informed decisions.

(d) A solicitor shall cease to act as an intermediary if:

(1) one of the customers requests it;

(2) either Client revokes Attorney's authority to disclose to other clients any information that Attorney would be required to disclose to them under RPC 1.4; any

(3) any of the other conditions set out in paragraph (b) is no longer met.

(e) If counsel's resignation is required under paragraph (d)(2), counsel must notify each client of the resignation, but does so without further disclosure of information protected by RPC 1.6.

Comment

[1] A lawyer acts as an intermediary under this Rule when the lawyer represents two or more clients who are cooperatively seeking to achieve a common goal in relation to the establishment, operation, modification or termination of a consensual legal relationship between them. Distinctive features of an intermediary include the impartiality of the attorney acting as intermediary; the open, candid and non-hostile nature of clients' pursuit of a common goal; and the limited matters in which an attorney may act as an intermediary for multiple clients (i.e., establishing a consensual legal relationship between clients). Because brokerage differs significantly from the partisan role that attorneys normally play, and because the attorney must be impartial to clients and not on behalf of each attorney, an attorney should only assume this role with the consent of clients. after asking about the badges. properties of this paper. Given the risks associated with jointly representing parties whose interests may potentially conflict, the rule provides a number of safeguards designed to limit its enforceability and protect the interests of different clients.

[2] Paragraph (b) sets out the circumstances in which an attorney may serve as mediator to multiple clients. With respect to customers served by an agent, this rule applies and not RPC 1.7. However, RPC 1.7 remains applicable to protect other clients that the attorney may represent or wish to represent in other matters. For example, if the representation of two clients as mediators in a matter materially limits the representation of another client that the attorney is representing, the attorney must provide that client with the protections of RPC 1.7. Likewise, if the representation of two clients by Attorney as an intermediary is materially prejudicial to one of Attorney's ex-clients and the matters are materially related, Attorney must provide the ex-client with the protections of RPC 1.9.

[3] RPC 2.2 does not apply to an Attorney acting as a neutral intermediary in the resolution of disputes, such as an arbitrator or mediator, because the parties to a dispute resolution proceeding are not clients of Attorney, even if the Attorney has done so with the consent of the parties appointed. Other rules of conduct regulate legal activity as neutral in dispute resolution.verRPC 2.4; Zehn. Und da. Connecticut. R31.

[4] Since this rule only applies to the establishment, implementation, modification or termination of mutually acceptable legal relationships between clients, it does not apply to the representation of multiple clients in connection with gratuitous transfers or other matters where there is no quid pro quo relationship. For example, conflicts of interest arising from representing multiple clients in estate planning or administration are governed by CPM 1.7, not this Standard. However, if the completion of a probate plan or other gratuitous transfer involves the creation, modification or termination of an amicable legal relationship between clients and counsel is acting as an intermediary in connection with the transaction, this rule applies, RPC 1.7 does not apply.

[5] A lawyer can act as an intermediary when it comes to establishing or adapting an amicable legal relationship between clients in an amicable and mutually beneficial manner, e.g. Company in which two or more customers have an interest. As part of a mediator's job, the attorney may seek to achieve clients' common goal or resolve potentially conflicting interests by promoting the mutual interests of the parties. The alternative may be for each party to be represented separately, which in some situations may entail additional costs, complications or even litigation. Given these and other relevant factors, each client may prefer to have an attorney act as an intermediary between them rather than engage another attorney as their counsel.

[6] In considering whether to act as an intermediary between clients, the attorney should bear in mind that failure of the intermediary may result in additional expense, embarrassment and recrimination. In some situations, the risk of failure is so great that it is clearly impossible or imprudent for the lawyer or client to mediate. For example, a lawyer cannot provide proper representation for clients facing litigation or contemplating litigation, as is often the case when dealing with a marriage dissolution. More generally, when the relationship between the parties has already assumed a clear antagonism, the possibility that the interests of customers can be adjusted through mediation is usually not very good.

[7] The suitability of mediation may depend on its form. Forms of mediation range from informal facilitation, where the attorney's responsibilities are limited to presenting clients with alternatives to choose from, to full representation, where the attorney provides all necessary legal services related to the proposed transaction. One form may be appropriate in circumstances where another would not be appropriate. Other relevant factors are whether the solicitor will subsequently represent both parties on a permanent basis; if the situation involves the establishment or termination of a relationship between the parties; the relative experience, competence and commercial bargaining power of customers; and the existence of previous family, business or legal relationships.

Confidentiality and Privilege

[8] A particularly important factor in determining the appropriateness of mediation is the impact on attorney-client privilege and attorney-client privilege. In a typical representation, the attorney must continue to properly inform each client and maintain the confidentiality of information related to the representation.verRPC 1.4 and 1.6. Meeting both requirements by acting as an intermediary requires a delicate balance. If the balance cannot be maintained, joint representation is inappropriate.

[9] Paragraphs (b)(4) and (c)(2) clarify that the obligation of attorney-client confidentiality applies to clients for whom an attorney acts as intermediary, but that confidentiality applies among notified clients is inappropriate and must be waived by any customer. Therefore, while an attorney must maintain confidentiality from outsiders, an attorney is under no obligation to keep information provided by a client confidential to other clients. In addition, depending on the circumstances, the attorney may well be required to disclose such information received from one client to other clients. Obviously, this important implication of the lawyer's duties as an intermediary needs to be disclosed and explained to clients.

[10] Since the lawyer is obliged to be impartial towards jointly represented clients, mediation is not permitted if this impartiality cannot be maintained. For example, it may be difficult for an attorney who has represented one of the clients over a long period of time and on a variety of matters to be impartial between that client and another that the attorney has recently seen.

consent form

[11] When the lawyer acts as an intermediary between clients, he must discuss the implications with the clients and can only proceed with confirmed informed consent in writing. The discussion should make it clear that the lawyer's role is not what is normally expected in other circumstances.

[12] Paragraph (c)(3) is an application of the principle expressed in RPC 1.4. When the lawyer acts as an intermediary, clients usually have to take more responsibility for decisions than when each client is represented independently.

cancellation

[13] Joint representation does not diminish the rights of each client in the attorney-client relationship. Every client is entitled to fair and diligent representation, the right to discharge counsel under RPC 1.16, and the protection of RPC 1.9 in respect of obligations to a prior client.

[14] Due to the duties of the lawyer who acts as an intermediary for the clients of the mediation, the lawyer must withdraw from representation if one of the clients of the mediation requests this; if one or more of the clients refuses to give Attorney authority to disclose certain information to any of the remaining clients, thereby preventing Attorney from discharging Attorney's duties to the remaining clients of communicating and disclosing information to them; or if one of the various crucial conditions for placement can no longer be met.

[15] After retiring as an agent or entering into an agent capacity, the attorney must grant the protections of RPCs 1.9 and 1.10 to all clients who previously acted as an agent.

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Informed Consent"verRPC 1.0(e)
"Material" and "material"verRPC 1.0(o)
"reasonably believes"verRPC 1.0 (me)

RULE 2.3: EVALUATION OF THIRD PARTY USE

(a) An attorney may provide an evaluation of a matter affecting a client for use by someone other than the client if the attorney reasonably believes that making the evaluation is consistent with other aspects of the attorney-client relationship is.

(b) If Legal Adviser knows or reasonably should have known that the Valuation is likely to adversely affect Client's interests, Legal Adviser will not prepare the Valuation unless Client's informed consent is obtained.

(c) Unless disclosure is authorized in connection with an assessment report, assessment-related information is protected by RPC 1.6.

Comment

Definition

[1] The evaluation for use by third parties can take place at the request of the client or with tacit authorization of the client to represent.verPR 1.2. Such an appraisal may have the primary purpose of obtaining information for the benefit of others, such as a real estate appraisal prepared at the request of a seller for information about a potential buyer or at the request of a borrower for information about a potential lender. In some situations, an evaluation may be required by a governmental authority, such as an opinion on the legality of securities admitted for sale under securities laws. In other cases, the assessment can be carried out by a third party, e.g. B. a commercial buyer, are required.

[1a] Prosecutors may be required to provide a formal opinion on the legality of the action taken by the government agency under consideration. In making such an assessment, the prosecutor acts on behalf of the government as a client, but for the purpose of determining the limits of the authority's authorized activities. Such an expert opinion is to be distinguished from confidential legal advice given by agency employees. The decisive factor is whether the opinion is published.

[2] A legal opinion is to be distinguished from an investigation against a person with whom the lawyer has no client relationship. For example, an attorney hired by a buyer to verify the seller's title does not have an attorney-client relationship with the seller. Likewise, an investigation into a person's affairs by a prosecutor or a government-employed specialist attorney is not an assessment, as that term is used in this Standard. The question is whether the attorney is hired by the person whose business is being audited. If the lawyer is commissioned by this person, the general rules of client loyalty and confidentiality apply, which do not apply if another person is commissioned. For this reason, it is important to identify the person for whom the lawyer is being hired. This should be made clear not only to the person being tested, but also to other people to whom the results are made available.

Obligations towards third parties and customers

[3] If the evaluation is intended for information or use by a third party, a legal obligation towards that person may or may not arise. This legal matter is beyond the scope of this rule. However, since such an assessment represents a departure from the normal attorney-client relationship, a careful analysis of the situation is required. The attorney must use professional judgment to be satisfied that the assessment is consistent with other duties on behalf of the client. For example, if the attorney is acting as legal counsel defending the client against allegations of fraud, it would normally be inconsistent with that responsibility for the attorney to conduct an evaluation for others in connection with the same or a related transaction. However, assuming that such an impediment is not obvious, the lawyer must inform the client of the implications of the assessment, namely the lawyer's responsibilities to third parties and the obligation to disclose the results.

Access and Disclosure of Information

[4] The quality of an evaluation depends on the freedom and scope of the underlying research. In general, an attorney should have any investigative freedom that professional judgment deems necessary. However, in certain circumstances the terms of the assessment may be restricted. For example, certain topics or sources can be categorically excluded, or the scope of the search can be limited due to time constraints or lack of cooperation from those with relevant information. Any such limitations that are important to the assessment should be described in the report. If, after the Attorney has begun an expert opinion, the client refuses to comply with the terms on which the expert opinion was to be conducted, the attorney's duties are set out in law, with reference to the terms of the attorney's contract, the client and the adjoining regulations. Circumstances. Under no circumstances shall an attorney knowingly misrepresent any relevant fact or law in making a review under this Rule.verPR 4.1.

Obtaining informed consent from the customer

[5] Information about a rating is protected by RPC 1.6. In many situations, the provision of a third party rating does not pose a significant risk to the customer; therefore, the attorney may be impliedly authorized to disclose information in order to render representation.verRPC 1.6(a). However, if it is reasonably likely that the provision of the valuation will materially and adversely affect the client's interests, the attorney must first obtain the client's consent after having given the client reasonable notice of the potential material impact on the client's interests.verRPC 1.6(a) und 1.0(e).

Requests for information from auditors

[6] If, at the request of the Client's Financial Controller, a question regarding the legal status of a Client arises and the matter is referred to the Attorney, the Attorney's response may be given in accordance with procedures accepted in the legal profession. One such procedure is set forth in the American Bar Association Policy Statement Relating to Attorney Responses to Auditor Information Requests, adopted in 1975.

LAST CROSS REFERENCES

"Informed Consent"verRPC 1.0(e)
"reasonably believes"verRPC 1.0 (me)
"I should reasonably know"verRPC 1.0(j)
"Essential"verRPC 1.0(o)

RULE 2.4: THE LAWYER AS A NEUTRAL DISPUTE RESOLVER

(a) An Attorney acts as a neutral mediator in the resolution of disputes when the Attorney impartially assists two or more persons who are not the Attorney's clients to reach a settlement of disputes that have arisen between them. Dispute neutrality service may include mediator service; an arbitrator whose decision will not be binding on the parties; a case assessor; a judge or jury in a mini-trial or summary jury as described in Rule 31 of the Supreme Court; or in any other capacity that enables legal counsel to impartially assist the parties in resolving their disputes.

(b) An attorney may act as a neutral agent in resolving a dispute in a matter where:

(1) the lawyer is responsible for handling the matter;

(2) the lawyer can deal with the matter without undue delay;

(3) counsel reasonably believes he can be impartial between the parties;

(4) none of the disputing parties will be represented by counsel in other matters;

(5) Attorney's duties to any client, former client or third party or Attorney's personal interests shall not prevent Attorney from rendering competent and diligent service to any person whom he or she assists as a neutral in dispute resolution;

(6) The Attorney shall communicate with each of the Disputing Parties or their Attorneys regarding the Attorney's qualifications and experience as a neutral dispute resolution party, the rules and procedures to be followed in the process and the Attorney's duties as a neutral dispute resolution party; provided, however, that any disputing party represented by counsel may waive its right to all or any communication required by this paragraph;

(7) Attorney communicates with each party or its attorney about any liability of attorney or an attorney associated with an attorney in a firm to a client, a former client or a third party or a personal interest of the attorney or an attorney Associated with the Attorney in a law firm that poses a significant risk of significantly impairing the Attorney's impartiality or significantly limiting the dispute resolution services that the Attorney provides to the parties;

(8) Unless service is effected in accordance with Rule 31 of the Supreme Court, each party or their counsel shall give their informed consent, confirmed in writing, to service of counsel as a neutral dispute resolution in or subject matter; Y

(9) If service is effected in accordance with Rule 31 of the Supreme Court, Counsel qualifies for service in accordance with the requirements of that Rule.

(c) When acting as a neutral in resolving disputes, Counsel must:

(1) act reasonably to ensure that the parties understand the rules and procedures to be followed in the proceeding and understand the responsibilities of counsel to be neutral in resolving disputes;

(2) act impartially, competently and expeditiously to assist the parties in resolving the issues at issue;

(3) promoting mutual respect between the parties in the dispute resolution process;

(4) between the Disputing Parties and any third party, treat any Dispute-Related Information as if it were information protected by RPC 1.6 and 1.8(b);

(5) between disputing parties, treat any information obtained in an individual agreement with a party or a party's counsel as if it were information relating to client representation protected by RPCs 1.6 and 1.8(b). ;

(6) not provide legal advice to a disputing party, but if Counsel believes that an unrepresented party does not understand how a proposed settlement might affect its statutory rights or obligations, Counsel for that party will advise independent counsel to seek advice;

(7) accept nothing of value other than fully disclosed reasonable compensation for services rendered in neutral dispute resolution to any party, counsel for a party, or other person involved in or interested in any dispute in the dispute resolution process;

(8) will not attempt to coerce or unfairly influence any party to accept any proposal for resolution of any disputed matter and will not make any substantive decision on behalf of any party; j

(9) if service is effected in accordance with Rule 31 of the Supreme Court, perform any other neutral dispute resolution functions in accordance with that rule.

(d) An attorney must retire from neutral arbitrator service or, if appointed by a court, obtain the court's permission to retire from neutral arbitrator service if:

(1) either party so requests;

(2) Attorney reasonably believes that the Additional Dispute Resolution Services will not result in an agreement that resolves the Dispute or that either party is unwilling or unable to cooperate with Attorney's Dispute Resolution efforts; any

(3) any of the conditions set out in paragraph (b) is no longer met.

(e) Upon termination of practice as a Neutral Dispute Resolution Counsel:

(1) may, with the informed consent of all disputing parties and in accordance with the requirements of RPCs 1.2(c) and 2.2, draft an agreement resulting from the dispute resolution process, but will not otherwise represent any or all of the disputing parties in connection with the matter and

(2) afford each Disputee the protections afforded to a Customer by RPCs 1.6, 1.8(b), and 1.9.

Comment

[1] Mediation, arbitration and other alternative forms of dispute resolution have been used for many years, but the growing demand in recent years for faster and more efficient means of resolving disputes of all kinds has led to an increasing demand for neutral dispute resolution services that are available in Dispute analysis and conflict resolution are trained. Lawyers are usually particularly well prepared for this role and should be encouraged to do so.

[2] While services such as neutral dispute resolution are considered legal services generally subject to these Rules,verRPC 5.7, the unique nature of an attorney's role as a neutral actor in the resolution of disputes, requires separate and more specific treatment in this rule for guidance to the profession and the public.

[3] This rule states that an attorney may act as a neutral mediator in the resolution of disputes, either as mediator, non-binding arbitrator, expert witness or judge, or juror in a mini- or summary jury trial. The scope of an attorney's ability to act as a neutral agent is generally intended to be the same as rule 31 of the Tennessee Supreme Court governing the alternative dispute resolution system attached to the court. However, while Rule 31 only covers alternative dispute resolution in court, this rule covers services such as neutral dispute resolution, whether provided in connection with judicial alternative dispute resolution procedures or in another context, possibly quite private, that is not covered by the rule 31 is covered.

[4] This rule does not apply to the provision of services by a lawyer in connection with the alternative resolution of disputes that are not of a neutral but rather of a judicial nature, such as B. Acting as an arbitrator in a binding arbitration. While RPC 5.7 may address the duties of an attorney in such a context, this rule is not intended to address them.

[5] Although a lawyer acting as a neutral in the resolution of disputes is subject to professional standards,verIn RPC 5.7, many of the rules do not apply directly to such a service because the participants in a dispute resolution process are not the attorney's clients. However, other rules apply, and this Rule also provides for specific applications of certain rules that may apply differently in this context (including, for example, the application of rules addressing conflicts of interest).

[6] While the requirements of this rule are generally consistent with those imposed on neutrals in the settlement of disputes under rule 31, there are duties, beyond those set out in rule 31, that are imposed on counsel who perform this function. 🇧🇷also seeOn here. great Connecticut. R. 31, Annex: Rules of professional conduct for mediators under Rule 31. Although persons other than lawyers who have been certified by the Supreme Court as neutral in the resolution of disputes under Rule 31 are not subject to these Rules and the parties to the dispute shall not be considered principal of the at the Dispute resolution as a neutral lawyer, the parties are entitled to assume that lawyers in this capacity are subject to the same general rules of conduct that apply to lawyers when providing legal services to their clients.

[7] The Supreme Court establishes rules and standards of professional conduct in rule 31 that apply to all neutrals under rule 31, including attorneys and non-attorneys. Therefore, paragraph (b) provides that a counsel may act neutrally under Rule 31 if the counsel meets those requirements. Paragraph (b)(9) further requires that an attorney who appears neutral in the resolution of disputes under Rule 31 of the Supreme Court must also fully comply with the requirements of that rule.

[8] Paragraph (b) sets out the circumstances in which the Counsel may give notice to the disputing parties as a neutral dispute resolution. With respect to disputing parties, RPC 1.7 does not apply because there is no mandate relationship between the neutral and the disputing parties. However, RPC 1.7 remains applicable to protect a client, as opposed to parties for whom the counsel is acting neutral, if the counsel's acting as neutral materially limits the counsel's representation for that client. Likewise, if Attorney's activity as neutral representative is materially prejudicial to one of Attorney's former clients and the matters are materially related, Attorney must afford the former client the protections of RPC 1.9.

[9] Conflicts of interest of neutral dispute resolution lawyers are specifically addressed since the parties to a dispute resolution procedure are not the clients of neutral dispute resolution. However, a neutral lawyer must be impartial, fully disclose all relevant relationships to the litigants, and obtain their consent to the lawyer's activities based on those disclosures. Paragraph (b)(4) does not provide for a mandatory disqualification of an agent based on the present or future activity of an attorney as a neutral representative in the dispute resolution. However, if a neutral counsel has a partner who is currently representing one of the disputing parties in other matters, the counsel must obtain that fact from the parties pursuant to (b)(7) and disclose the Informed Consent. , confirmed in writing to act as neutral. Of course, that attorney must also have a reasonable belief that impartiality was possible despite these and other relevant relationships. If an attorney is unable to make the disclosures required by paragraph (b)(7) because of confidentiality obligations to a client, the attorney cannot appear neutral in a dispute.

[10] Paragraph (c) also contains several standards of conduct specific to a neutral lawyer service in dispute resolution. Again, this code of conduct is intended to be consistent with Rule 31 and to address the particular situation of a neutral who has a significantly different relationship with participants in a dispute resolution process than a lawyer has with his clients. Paragraphs (c)(4) and (c)(5) govern the confidentiality of all information related to the Dispute (including that obtained in individual discussions with the parties) by analogy with the rules on confidentiality of customer information. For example, any concern about a possible disclosure of fraud by a participant in a dispute resolution process would be treated in RPCs 1.6, 3.3 or 4.1 as if the participant were actually a client of the counsel. Likewise, the ethical duty of an attorney acting as a neutral arbitrator in dispute resolution to report unethical conduct in a dispute resolution process by a participant's attorney is limited by RPC 8.3(c). Other parts of paragraph (c), such as the prohibition on undisclosed compensation by either party in paragraph (c)(7), the prohibition on coercion or decision-making on behalf of the parties in paragraph (c)(8), and the prohibition of legal advice to participants in paragraph c)(6), imposes the necessary limitations to ensure and enhance the necessary impartiality of counsel acting as a neutral in dispute resolution.

[11] Paragraph (d) requires that an attorney acting as a neutral mediator in resolving disputes, in certain special circumstances, such as a judgment of the belief that the counseling service will not be fruitful.

[12] Paragraph (e) neutralizes the duties of an Attorney to participants in a dispute resolution process after the termination of practice for any reason whatsoever, whether because an agreement has been reached or because a party requests the Attorney's resignation. Given the impartial role of a neutral in the dispute resolution, it is inappropriate for an attorney who has acted as a neutral in the dispute resolution to subsequently represent any of the parties to the dispute in relation to the subject matter of that dispute resolution. However, this exclusion does not extend to other lawyers who are affiliated with a neutral dispute resolution firm. However, if the parties have successfully resolved their dispute, paragraph (e)(1) permits a neutral counsel to draft the agreement to resolve their dispute, but this must be in accordance with RPCs 1.2(c) and 2.2 and only with consent clarification take place.

[13] In addition, paragraph (e)(2) provides that even if participants in a closed dispute resolution procedure are not clients of the lawyer who acted as neutral in the dispute resolution in that procedure, those participants have a right to confidentiality and protections against conflicts of interest provided by RPCs 1.6, 1.8(b) and 1.9 as if they were former clients.

LAST CROSS REFERENCES

"Confirmed in writing"verRPC 1.0(b)
"Parties"verRPC 1.0(c)
"Informed Consent"verRPC 1.0(e)
"Essential"verRPC 1.0(o)
"reasonable" and "reasonable"verRPC 1.0 (h)
"reasonably believes"verRPC 1.0(i).

CHAPTER 3

DEFENDER

RULE 3.1: ELIGIBLE COMPLAINTS AND CONTENT

Attorney shall not initiate or defend any claim, or allege or dispute any matter thereof, unless, after reasonable investigation, Attorney has a non-frivolous factual and legal basis for doing so, including a good faith argument for an extension, modification, or waiver of an existing right . However, an attorney for the defendant in a criminal proceeding, or for the defendant in a case that could result in imprisonment, may defend the case in such a way that all elements of the case must be proven.

Comment

[1] The lawyer has the duty to use the legal process to the best advantage of the client's case, but also the duty not to abuse the legal process. The law, both procedural and substantive, sets the limits within which a lawyer can operate. However, the law is not always clear and never static. Consequently, when determining the appropriate level of advocacy, ambiguity and the potential for legislative change must be taken into account.

[2] The filing of a lawsuit or defense or similar action by a client is not to be taken lightly simply because the facts have not been fully established or because the attorney hopes to obtain crucial evidence only through discovery. What is required of attorneys, however, is that they act reasonably to know the facts of their client's case and the law applicable to the case, and then act reasonably to determine that they have good faith arguments in support of your client's position clients can present. 🇧🇷 Such an approach is not easy, even if the lawyer believes that the client's position will not prevail. However, the action is frivolous if counsel cannot, in good faith, argue that the action taken is reasonable or cannot support the action taken with a good faith argument for an extension, modification, or repeal of existing law.

[3] While this rule does not prevent a defendant's attorney in a criminal matter from defending the case in a manner that requires all elements of the case to be established, the defense attorney must not submit frivolous pleadings and must notify the prosecution. if the attorney chooses to drop a positive defense that the attorney had previously stated, it would be presented in the case.

LAST CROSS REFERENCES

"Appropriate"verRPC 1.0 (h)

RULE 3.2: QUICK DISPUTE

An attorney will use reasonable efforts to expedite litigation.

Comment

[1] Delay practices discredit the administration of justice. While there are times when an attorney for personal reasons such as B. Illness or conflict with a significant family obligation that may request the proceeding of the proceeding, it is not certain that an attorney would routinely cease expediting litigation solely for the convenience of defense counsel. The lack of due diligence is also not reasonable if it is done with the aim of thwarting the other party's attempt to obtain the appropriate compensation or recovery. There is no justification for the fact that banks and bars often condone similar behavior. The question is whether competent counsel, acting in good faith, would assume that the course of action served an essential purpose other than delay. For purposes of this Standard, obtaining a financial or other benefit from an unreasonable delay in litigation is not a legitimate interest of the client.

LAST CROSS REFERENCES

"Appropriate"verRPC 1.0 (h)

RULE 3.3: FRANCY TO COURT

(a) An attorney shall not knowingly:

(1) make any false statements of fact or law in court; any

(2) failure to disclose to the court legal authority in the relevant jurisdiction which counsel knows directly conflicts with client's position and which was not disclosed by opposing counsel; any

(3) in an ex parte proceeding, failing to inform the court of all relevant facts known to counsel that would enable the court to reach an informed decision, whether or not the facts are adverse.

(b) An attorney shall not offer evidence which he knows to be false, except that an attorney representing an accused in a criminal proceeding who has been refused permission to withdraw from representing the accused after paragraph (f) has served, may permit the client to testify through undirected storytelling, or take any other action necessary to uphold the defendant's constitutional rights in connection with the action.

(c) An attorney shall not assert or otherwise use the validity of evidence which he knows to be false.

(d) An Attorney may refuse to offer or use any evidence other than testimony of an accused client in a criminal matter which the Attorney reasonably believes is false, misleading, fraudulent or unlawful.

(e) If an attorney knows, or becomes aware prior to the completion of the proceeding, that his client intends to defraud the court or otherwise commit an offense against the administration of justice in connection with the proceeding, including misconduct before a jury or jury, that the client has committed such crime or fraud in the course of representation by counsel, counsel must, and will, advise the client to desist from the crime or fraud or otherwise disclose or correct the manner of the crime or fraud with the customers discuss the consequences if the customer does not do this.

(f) If any Counsel, after speaking with the client under paragraph (e), learns that the client still intends to commit the crime or fraud or is refusing or unable to commit the crime or disclose or correct the fraud, the attorney will do so, will seek permission from the court to withdraw from representing the client, and will, without further disclosure of information protected by RPC 1.6, notify the court that the request for withdrawal of the lawyer is required by the rules of professional conduct.

(g) Counsel who, prior to the conclusion of the proceeding, determines that Counsel has presented false physical or documentary evidence shall withdraw or dismiss such evidence without further disclosure of information protected by RPC 1.6.

(h) An Advocate who, before the conclusion of the Proceeding, becomes aware that any person other than the Client has committed fraud against the Court or otherwise committed an offense against the administration of justice in connection with the Proceeding, and in which the Advocate Client is not involved, you must promptly report the misconduct to the court, even if doing so requires disclosure of information otherwise protected by RPC 1.6.

(i) An attorney who, before the conclusion of the proceeding, becomes aware of any misconduct by or relating to a juror or juror must report the misconduct to the court, even if it involves the disclosure of information. otherwise protected by RPC 1.6.

(j) If, in response to an attorney's request to cease representing a client, or an attorney's allegation of perjury, fraud or breach of justice by any person other than attorney's client, when a court requests additional information that Counsel may request providing information protected by RPC 1.6 or 1.9(c) only by disclosure, Counsel must comply with the request, but only if the court so directs, after Counsel has served on behalf of the client all claims that are not frivolous has asserted that the requested information concerns the court is subject to attorney-client privilege.

Comment

[1] This provision regulates the behavior of a lawyer representing a client in connection with judicial proceedings, for example before a court or an administrative authority acting in a judicial capacity. It applies not only when the lawyer appears in court, but also when the lawyer engages in activities carried out under the authority of the court, such as B. Pre-trial investigations in a civil matter.

[2] The task of the lawyer is to represent the client convincingly. Fulfillment of this duty while preserving the confidentiality of the client depends on the lawyer's duty not to assist a client in committing fraud against the court. However, a lawyer is not responsible for the evidence presented in a case; the court is responsible for assessing the evidentiary value.

Representation by a lawyer

[3] An attorney is responsible for pleadings and other documents prepared for litigation, but it is generally not necessary to have personal knowledge of the matters contained therein, as litigation documents are typically statements by the client or a person on behalf of the client included, and no attorney statements. Compare RPC 3.1. However, a statement purporting to be within the attorney's own knowledge, such as a statement by a lawyer or a public hearing, can only be made correctly if the lawyer knows that the statement is true or, based on reasonably careful investigation, believes that it is true. There are circumstances where non-disclosure amounts to positive misrepresentation. The obligation in RPC 1.2(d) not to advise a customer to commit fraud or to assist a customer in committing fraud applies in litigation. For compliance with RPC 1.2(d), see the commentary on that standard and also comments [1] and [7] on RPC 8.4.

Misleading legal reasoning

[4] Legal reasoning based on a knowing misrepresentation of the law constitutes dishonesty for the court. A lawyer is not required to state the law disinterestedly, but he must recognize the existence of competent judicial authorities. In addition, as set forth in paragraph (a)(2), an attorney has a duty to disclose directly adverse powers in the controlling jurisdiction that have not been disclosed by the opposing party. The underlying concept is that legal reasoning is a discussion that attempts to identify the legal assumptions that are appropriate to the specific case.

ex parte procedure

[5] In general, a lawyer has only a limited responsibility to present one side of the issues that a court must consider in reaching a decision; the opposing position is expected to be represented by the opposing party. In an ex parte procedure, such as B. a request for an injunction or pursuant to RPC 1.7(c), there will be no balance in the opposing counsel's filing. However, the aim of ex parte proceedings is to achieve an essentially fair result. The judge has a positive responsibility to give due consideration to the absent party. Pursuant to paragraph (a)(3), counsel for the represented party has a related duty to disclose material facts known to counsel and which counsel reasonably believes will enable counsel to make an informed decision.

Refuse to offer or use false evidence

[6] If proof that a lawyer knows it is false is furnished by a person other than the client, the lawyer must refuse to furnish it, notwithstanding the will of the client. Similarly, counsel must refuse to give any testimony from a client that he knows to be false, except that paragraph (b) permits counsel to permit an accused to testify in narrative form if counsel requests redemption as required by paragraph (f). is rejected. Paragraph (c) prohibits an attorney from asserting or otherwise using the validity of evidence known to be false, including narrative testimony of a criminal suspect.

[7] As provided in paragraph (d), an Attorney shall have the authority to decline to offer or use any testimony or other evidence which the Attorney deems unreliable. The provision of such evidence may adversely affect the attorney's ability to discriminate on the quality of the evidence and thus impair the attorney's effectiveness as an attorney. However, because of the special protections afforded to defendants in the past, this rule does not permit an attorney to reject or use such client's testimony because the attorney reasonably believes that the testimony is false. Unless the attorney knows that the testimony will be false, the attorney must respect the client's decision to testify.

Irregularities in legal proceedings by customers and others

[8] The lawyer who represents a client in court proceedings and, before the conclusion of the proceedings, discovers that the client has committed or intends to commit fraud, perjury or any other violation of the administration of justice before the conclusion of the proceedings is in a difficult position, in which the lawyer must strike a professionally responsible balance between his duty of loyalty and confidentiality to the client and the equally important duty of the lawyer not to assist the client in the commission of fraud or perjury. In all such cases, paragraph (e) requires counsel to advise the client to refrain from or correct the crime or fraud and to inform the client of the consequences of failure to do so. It becomes difficult in the rare cases in which the client refuses to disclose the misconduct and prohibits the lawyer from doing so.

[9] Paragraph (f) sets forth the responsibilities of Attorney in situations where Attorney's client is involved in wrongdoing. In these situations, the regulation does not allow the lawyer to report the client's crime. Confidentiality under RPC 1.6 takes precedence over an attorney's duty of openness in court. Only if the client is involved in misconduct by or towards a jury member does the lawyer's duty of disclosure in court take precedence over secrecy.verParagraph (i).

[10] Although the attorney cannot disclose the wrongdoing of the client, the attorney should not voluntarily continue to represent the client, since without disclosure of the wrongdoing, doing so would help the client to complete the crime. The rule therefore provides that the lawyer seeks permission from the court to withdraw from representing the client. To increase the likelihood that the court will allow the attorney to resign, the attorney must also inform the court that the request for consent to resign is required by the code of conduct. This statement also serves to inform the court that something is wrong without providing the court with the representation-related information protected by RPC 1.6. These rules are therefore intended to maintain confidentiality while obliging the attorney to act in a manner that does not assist the client in completing the fraud. This reflects the perception that the legal system will benefit best from rules that encourage clients to trust their lawyers, who in turn advise them to correct the fraud. Many, if not most, clients will follow the advice of their attorney, especially if the attorney explains the consequences of not doing so. At the same time, our legal system and profession cannot allow lawyers to help clients who refuse to take their advice and continue to commit fraud.

[11] After the Attorney has filed a request for resignation, the court may, without further investigation, grant or deny the request for resignation, or request further information from the Attorney on the reasons for the Attorney's request. If the judge requests further information, counsel must oppose disclosure of information protected by RPC 1.6, but only to the extent counsel can do so under RPC 3.1. Unless the attorney unsubstantiatedly argues that the information requested by the court is protected by attorney-client privilege, the attorney must truthfully respond to the request. However, if there is a non-frivolous argument that the requested information is privileged, paragraph (h) requires counsel to invoke the privilege. The filing of an interlocutory appeal against a negative decision relating to a privilege claim is governed by RPC 1.2 and 3.1.

[12] When an attorney is needed to obtain a court's permission to withdraw from representing a client in a civil or criminal proceeding because the client has refused to correct perjury or fraud, it is ultimate responsibility of the court to determine whether the lawyer can evade representation. However, in a criminal proceeding, the decision to allow the attorney to resign may affect the constitutional rights of the defendant and even result in the client being barred from the proceeding. Notwithstanding this possibility, the lawyer must request permission to resign, it being up to the prosecutor to oppose the request and the court ultimately decides whether the resignation is permissible. If permission to withdraw is not granted, the attorney must continue to represent the client, but must not assist the client in committing fraud or perjury through the direct or indirect use of false testimony or false evidence during the current or subsequent stages of the proceedings. Process. A defense attorney who complies with these rules acts professionally, regardless of the effect of the attorney's compliance on the outcome of the case.

False documentary or tangible evidence

[13] If counsel becomes aware that tangible items or documents previously offered as evidence by counsel have been altered or falsified, paragraph (g) requires counsel to withdraw or reject the evidence, but does not permit disclosure of Information. from RPC 1.6. Since both the disclaimer and revocation can be performed without disclosing RPC 1.6 protected information, it is necessary for the attorney to avoid assisting fraud in court if necessary.

Crime or fraud by persons Exceptions for the customer

[14] Paragraph (h) applies if Counsel determines that any person other than the Client has engaged in improper conduct in connection with the Proceedings. If, before the conclusion of the proceeding, he learns that such misconduct has occurred, paragraph (e) requires the counsel to promptly disclose the offense to the court. The client's interest in protecting the offender is not sufficiently important to replace the attorney's duty to be forthcoming in court and to take positive action to avoid perjury, fraud or other improper conduct compromising the administration of justice.

Misconduct by or towards jurors or jury members

[15] Because jury manipulation undermines the institutional mechanism our adversarial justice system uses to determine the truth or falsity of testimony or evidence, paragraph (i) requires that an attorney be informed prior to the conclusion of the trial that a misrepresentation or addressed to a jury or prospective jury, must disclose to the court the wrongdoing and the identity of the offender, even if doing so requires disclosure of information protected by RPC 1.6. Paragraph (i) does not require that counsel seek permission to withdraw from the client's continued representation at the proceeding, but in cases where the client is involved in jury manipulation, counsel's continued representation of the client may violate RPC 1.7 violated RPC 1.16(a)(1) would then require the attorney to ask permission to withdraw from the case.

Crime or fraud discovered after the case is completed

[16] In cases where the lawyer becomes aware of the misconduct of the client after the conclusion of the proceedings in which the misconduct occurred, the lawyer is prohibited from reporting the client's misconduct to the court. Even if the attorney innocently assisted the client in committing the crime, the attorney should treat that information as he would treat information regarding prior crimes that a client may have committed. With the conclusion of the procedure, the violation of the customer is considered completed. A crime committed at an earlier stage of the process is considered a crime in progress until the last stage of the process is completed. A procedure within the meaning of this rule is completed when a final judgment has been established in the appeal procedure or the appeal period has expired.

Constitutional Requirements

(Video) Code of Conduct

[17] This regulation applies to defense lawyers in criminal matters and in other instances. However, defining the lawyer's ethical duty in such a situation can be safeguarded by constitutional provisions on due process and the right to assistance in criminal matters. The lawyer's obligation under this ordinance is not subject to any constitutional requirement.

LAST CROSS REFERENCES

"Scam" and "Scam"verRPC 1.0(d)
"aware", "known" and "know"verRPC 1.0(f)
"Material"verRPC 1.0(o)
"reasonably believes"verRPC 1.0 (me)
„Tribunal“ Version RPC 1.0(m)

RULE 3.4: JUSTICE FOR COUNTERPARTY AND LAWYER

The lawyer may not:

(a) unlawfully obstruct another party's access to Evidence or unlawfully alter, destroy or conceal any document or other material of potential evidentiary value. An attorney does not advise or assist any other person in performing such an act; any

(b) falsifying evidence, advising or assisting any witness to make false or misleading testimony; any

(c) knowingly failing to comply with any obligation under the rules of any court, other than a direct refusal on the basis of an allegation that there is no valid obligation; any

(d) make a frivolous pre-trial disclosure request or fail to make reasonable efforts to comply with a legally reasonable disclosure request from an opposing party; any

(e) in court,

(1) allude to a matter which counsel reasonably believes is not material or is not supported by admissible evidence; any

(2) assert personal knowledge of the facts in question, except when testifying as a witness; any

(3) express a personal opinion as to the impartiality of a case, the credibility of a witness, the guilt of a civil litigant, or the guilt or innocence of an accused; any

(f) require a non-customer not to voluntarily disclose relevant information to any third party unless:

(1) the person is a relative or employee or other representative of a customer; j

(2) the attorney reasonably believes that the person's interests will not be adversely affected by failure to provide such information; any

(g) to encourage or assist any person to take any action that would render the person unable to appear as a witness at any hearing or judicial proceeding; any

(h) offering a legally prohibited briefing to a witness; or to pay, offer or accept compensation to a witness depending on the content of your testimony or the outcome of the case. The lawyer can make the payment of:

(1) the costs reasonably incurred by a witness in appearing or testifying;

(2) reasonable compensation to a witness for the witness's loss of time to appear or testify; any

(3) a reasonable fee for the professional services of an expert.

Comment

[1] The adversarial system procedure provides that the evidence in a matter is practiced competitively by the disputing parties. Fair competition in the adversarial system is ensured by prohibitions on destroying or concealing evidence, improper witness tampering, obstructive tactics in investigative proceedings, and the like.

[2] Documents and other evidence are often essential to substantiate a claim or defense. Subject to the privilege of proof, the right of an opposing party, including the government, to obtain evidence through disclosure or a subpoena is an important procedural right. The exercise of this right may be frustrated if the relevant material is altered, hidden or destroyed. Applicable law in many jurisdictions makes it a criminal offense to destroy material to prevent its availability in pending or anticipated proceedings. Falsifying evidence is also often a criminal offence. Paragraph (a) applies to evidence in general, including computerized information. Applicable law may permit an attorney to temporarily collect physical criminal evidence from clients in order to conduct a limited investigation that does not alter or destroy the physical characteristics of the evidence. In such a case, applicable law may, depending on the circumstances, require the attorney to hand over the evidence to the police or other judicial authority.

[3] While paragraph (f) generally prohibits Attorneys from taking extrajudicial measures to prevent informal fact-finding, it permits the Attorney to require that the Attorney's client and his family, employees or agents waive the voluntary provision of disregard information. of the other party This principle stems from the fact that these family members and employees usually identify their interests with those of the customer.also seePR 4.2.

[4] With respect to paragraph (h), it is not unreasonable to pay the costs of a witness or compensate an expert as permitted by law. The rule of common law in most jurisdictions states that it is unreasonable to pay a witness to an incident a fee for testimony and it is unreasonable to pay an expert witness a contingency fee.

LAST CROSS REFERENCES

"deliberately"verRPC 1.0(f)
"Material"verRPC 1.0(o)
"reasonable" and "reasonable"verRPC 1.0 (h)
"reasonably believes"verRPC 1.0 (me)
"Aimed"verRPC 1,0 (m)

RULE 3.5: IMPARTIALITY AND DECORATION OF THE COURT

The lawyer may not:

(a) attempt to influence a judge, jury, prospective juror or other official by any means prohibited by law;

(b) communicate ex parte with that person during the proceedings, unless authorized to do so by law or court order;

(c) to communicate with a juror or prospective juror after the jury's release if:

(1) the communication is prohibited by law or court order;

(2) the juror informed the attorney of his wish not to communicate; any

(3) the communication involves misrepresentation, coercion, coercion, or harassment;

(d) conducting a harassing or harassing investigation of any prospective juror or juror; any

(e) engage in conduct intended to harass a court.

Comment

[1] Many forms of improperly influencing a court are prohibited by criminal law. Others are set out in the Tennessee Code of Judicial Conduct that an attorney should be familiar with. A lawyer is obliged not to share in any breach of these provisions. For example, an attorney may not give or lend anything of value to a judge, court official or clerk except as permitted under RJC 3.13 of the Code of Judicial Conduct. However, an attorney may make a campaign fund contribution to a candidate for judicial office under RJC 4.4 of the Code of Judicial Conduct.

[2] During a proceeding, an attorney may not communicate ex parte with persons serving in official positions in the proceeding, such as judges, professors or jurors, unless authorized to do so by law or court order. Unless such communication is prohibited by law or court order, paragraph (b) of this rule would not prohibit an attorney from communicating in writing with a judge about the merits of the case if the attorney promptly provided a copy of the document to the opposing party. Attorney and parties not represented by attorneys as this would not be an ex parte communication.

[3] Paragraph (b) also does not prohibit an attorney from contacting a judge at an ex parte hearing to determine that there is no conflict of interest under RPC 1.7(c). In this process, of course, the attorney is bound by the duty of disclosure in RPC 3.3(a)(3).

[4] On occasion, an attorney may wish to communicate with a prospective juror or a juror after the juror has been dismissed. The attorney may do so unless communication is prohibited by law or a court order in the case or a federal court decision, but must respect the juror's wish not to speak to the attorney. The lawyer must not behave inappropriately during the communication. As the court inState against Thomas🇧🇷 813 OS 2d. 395 (Tenn. 1991): "An attorney's communication with a jury after the trial is permissible provided that he [or she] refrains from asking questions or making comments that are likely to annoy or embarrass the jury ." or influencing jury actions in future cases If an attorney were prevented from communicating with the jury after the trial, he [or she] would not be able to determine whether the verdict could be appealed in court, in which case the invalidity of a judgment could go unnoticed".I WOULD GO🇧🇷 (citing Tenn. Sup. Ct. R. 8, EC 7-291). The court went on to say inTomásthat "Therefore Rule 8 permits post-trial discussions by counsel with a jury on these matters without the prior approval of the court."I WOULD GO🇧🇷 at 396. Although the Court's analysis atTomáswas based on an earlier version of Rule 8 (i.e. the Code of Professional Responsibility), the above principles ofTomásthey are still valid in the context of RPC 3.5.

[4a] A notice or inquiry by a juror or prospective juror's spouse, child, parent or sibling shall be deemed a notice or inquiry by the juror or prospective juror.

[5] The lawyer's role is to present evidence and arguments so that the case is resolved in accordance with the law. Refraining from abusive or scandalous conduct is a corollary of attorney's right to speak on behalf of litigants. A lawyer can defend his position against abuse by a judge, but he must avoid reciprocity; the judge's omission is no justification for such a task by the lawyer. An attorney can present the case, secure the file for later review, and maintain professional integrity through patient determination no less effectively than through belligerence or theatrics.

[6] The injunctive relief applies to any legal proceeding, including a confession.verRPC 1,0 (m).

LAST CROSS REFERENCES

"Knowledge"verRPC 1.0(f)
"Aimed"SeeRPC 1,0(m)

RULE 3.6: PUBLIC OF JUDGMENT

(a) An attorney who is or has been involved in the investigation or litigation of any matter shall not make an out-of-court statement which the attorney knows or ought to have known would be made public in any public communication and likely to give rise to litigation significantly affect will continue. .

(b) Notwithstanding paragraph (a), the Counsel may declare:

(1) the claim, offense or defense involved and, except where prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation into any matter is ongoing;

(4) the timing or outcome of any phase of the litigation;

(5) a request for assistance in obtaining necessary evidence and information;

(6) a hazard warning about the conduct of any involved person when there is reason to believe that there is a possibility of serious harm to an individual or the public interest; j

(7) in criminal proceedings in addition to paragraphs 1 to 6:

(i) the identity, residence, occupation and family situation of the accused;

(ii) if the accused has not been arrested, information necessary to assist in the arrest of that person;

(iii) fact, time and place of arrest; j

(iv) the identity of the officers or authorities who conducted the investigation and arrested them and the duration of the investigation.

(c) Notwithstanding paragraph (a), an Attorney may make any declaration that a reasonable attorney would deem necessary to protect a client from the undue harmful effects of material recent publicity not initiated by attorney or attorney's client . A statement made under this paragraph is limited to information necessary to mitigate recent adverse publicity.

(d) No attorney affiliated with any corporation or government agency with an attorney falling within subsection (a) may make any statement prohibited by subsection (a).

Comment

[1] It is difficult to strike a balance between protecting the right to a fair trial and protecting the right to freedom of expression. Upholding the right to a fair trial will inevitably result in some reduction in the information that can be disclosed about a party prior to the trial, particularly in the case of a jury trial. If such limits did not exist, the consequence would be the practical nullity of the protective effect of the rules of forensic decency and the rules excluding evidence. On the other hand, the free dissemination of information about legal events and about the court proceedings themselves serves vital social interests. The public has a right to be informed about threats to their security and measures taken to ensure their security. In addition, you have a legitimate interest in conducting legal proceedings, particularly in matters of general public interest. In addition, the issue of judicial procedures is often of direct relevance in the debate and deliberation of public policy issues.

[2] Special confidentiality rules may validly govern cases involving minors, domestic relationships, intellectual disabilities and possibly other types of litigation. RPC 3.4(c) requires compliance with these rules.

[3] The rule establishes a fundamental general prohibition on statements by a lawyer which he knows or ought to have known are likely to materially prejudice a judicial proceeding. Recognizing that the public value of an informed opinion is high and the likelihood of a proceeding being adversely affected by an opinion from a non-participant counsel is low, the rule applies only to counsel who are involved in the investigation or have been litigated in a case and his staff.

[4] Paragraph (b) identifies specific matters on which Counsel's testimonies would not normally be considered to present a significant likelihood of material harm and in any event should not be considered prohibited by the general prohibition in paragraph (a). Paragraph (b) is not intended to be an exhaustive list of matters on which counsel may make testimony, but testimony on other matters may be subject to paragraph (a).

[5] On the other hand, there are certain matters that are more likely to have a material adverse effect on a proceeding, particularly when it is a civil matter being tried by a jury, a criminal matter, or other proceeding. which could result in an arrest. These topics concern:

(1) the character, credibility, reputation, or criminal record of a party, a suspect in a criminal investigation, or a witness; or the identity of a witness; o the expected testimony of a party or witness;

(2) in any criminal proceeding or proceeding which could result in arrest, the possibility of a confession to the offense or the existence or content of a confession, admission or testimony by an accused or suspect, or the refusal or failure to testify by that person;

(3) the performance or results of any exam or test, or a person's refusal or failure to submit to an exam or test, or the identity or nature of the physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of any accused or suspect in any criminal proceeding or proceeding which may result in an arrest; any

(5) Information of which the counsel knows or ought to know is likely to be inadmissible evidence in a judicial proceeding and, if disclosed, would pose a significant risk of prejudicing a fair trial.

[6] Another relevant factor in determining harm is the nature of the process involved. Criminal court proceedings will be more sensitive to extrajudicial statements. Civil actions can be less sensitive. Non-jury hearings and arbitrations may be even less affected. The rule will still place limits on harmful comments in these cases, but the likelihood of harm may vary depending on the nature of the lawsuit.

[7] Finally, extrajudicial statements that may raise an issue under this rule may be permissible if made in response to statements made public by another party, the other party's counsel, or third parties, if appropriate counsel Believes that a public statement is necessary to avoid harm to the Attorney's client. When publicly harmful statements have been made by others, accommodating statements can have the salutary effect of reducing any resulting adverse effects on the judicial process. Such responsive statements should be limited to providing only that information necessary to mitigate the undue material harm caused by statements made by others.

[8]verRPC 3.8(f) for additional duties of prosecutors regarding extrajudicial statements in criminal proceedings.

LAST CROSS REFERENCES

"Parties"verRPC 1.0(c)
"He knows"verRPC 1.0(f)
"Essential"verRPC 1.0(o)
"Appropriate"verRPC 1.0 (h)
"I should reasonably know"verRPC 1.0(j)
"significant"verRPC 1,0 (l)

RULE 3.7: ATTORNEY AS WITNESS

(a) An Attorney shall not appear as Counsel in any proceeding in which he is likely to act as a required witness unless:

(1) the testimony concerns an undisputed matter;

(2) the testimony relates to the nature and value of the legal services provided in the case; any

(3) The exclusion of the lawyer would represent considerable hardship for the client.

(b) An attorney may act as counsel in a proceeding in which another attorney of the law firm is likely to be called as a witness, except as otherwise prohibited by RPC 1.7 or RPC 1.9.

Comment

[1] Combining the roles of attorney and witness can be detrimental to the court and the opposing party, and can also create a conflict of interest between attorney and client.

Standard for Attorney Witnesses

[2] The court has a legitimate objection when the trial judge may be confused or misled by counsel acting as both counsel and witness. The other party has an appropriate defense if the combination of roles could affect that party's rights in the dispute. A witness must testify based on personal knowledge, while an attorney must explain and comment on the evidence presented by others. It may not be clear whether testimony should be considered evidence or analysis of evidence.

[3] To protect the court, paragraph (a) prohibits an attorney from acting simultaneously as trial counsel and necessary witness, except in the circumstances set forth in paragraphs (a)(1) through (a)(3). Paragraph (a)(1) recognizes that when the testimony is uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the scope and value of legal services being rendered in the action in which the testimony is offered, the admission of counsel to testify involves the need for a second trial a new lawyer to solve this problem. Moreover, in such a situation, the judge has first-hand knowledge; Therefore, there is less reliance on the adversarial process to prove the credibility of the testimony.

[4] In addition to these two exceptions, paragraph (a)(3) recognizes that a balance is required between the interests of the client and those of the court and the other party. The likelihood of the court being misled or the opposing party disadvantaged depends on the nature of the case, the likely importance and tenor of the counsel's testimony, and the likelihood that the counsel's testimony will conflict with that of other witnesses. Even if there is a risk of such harm, when deciding whether an attorney should be disfellowshipped, consideration must be given to the effect of the disqualification on the attorney's client. It is relevant that one or both parties can reasonably foresee that the lawyer is likely to be a witness. The conflicts of interest policies set out in RPCs 1.7, 1.9 and 1.10 do not apply to this aspect of the issue.

[5] Since it is unlikely that the Court would be misled by a Counsel appearing as Counsel in a proceeding in which another Counsel of the Law Firm will testify as a necessary witness, paragraph (b) permits Counsel to do so, except in situations involving a conflict of interest.

conflict of interest

[6] In determining whether counsel is admissible in a process in which counsel will be a required witness, counsel must also consider that a dual duty may create a conflict of interest that may affect compliance with RPC 1.7 or 1.9 requires. For example, if there is a likelihood of a material conflict between the client's testimony and that of counsel, the representation involves a conflict of interest that requires compliance with RPC 1.7. This would be the case even if paragraph (a) did not prohibit counsel from acting simultaneously as counsel and as a witness because to exclude counsel would cause significant hardship to the client. Likewise, an attorney who may be entitled under paragraph (a)(3) to act simultaneously as counsel and as a witness may be prevented from doing so by RPC 1.9. The problem can arise when the lawyer is summoned as a witness for the client or when he is summoned by the other party. Determining whether or not such a conflict exists is primarily the responsibility of the attorney involved. If there is a conflict of interest, the lawyer must obtain the client's informed consent, confirmed in writing. In some cases it is not possible for the lawyer to obtain the client's consent.verPR 1.7. See RPC 1.0(b) for the definition of "written confirmation" and RPC 1.0(e) for the definition of "informed consent".

[7] Paragraph (b) provides that an attorney shall not be disqualified from practicing law because an attorney with whom he is associated in a firm is unable to do so under paragraph (a). However, if the Witness Attorney is also disqualified from representing the client in the matter under RPC 1.7 or RPC 1.9, other attorneys at the Firm may not represent the client under RPC 1.10 unless the client provides informed consent under the conditions set forth in RPC 1.7 specified conditions.

LAST CROSS REFERENCES

"Parties"verRPC 1.0(c)
"significant"verRPC 1,0 (l)

RULE 3.8: SPECIAL RESPONSIBILITIES OF ATTORNEY

The prosecutor in criminal proceedings:

(a) to refrain from pursuing any charge which the prosecutor knows is not supported by probable causes;

(b) will use all reasonable efforts to ensure that the accused has been informed of the right and procedure to obtain legal advice and has had a reasonable opportunity to obtain legal advice;

(c) will not advise an unrepresented defendant to waive important pre-trial rights;

(d) promptly disclose to the defense any evidence or information known to the prosecution that tends to deny the accused's guilt or mitigate the crime and, in connection with the sentencing, disclose to the defense and the court any non-privileged mitigating information that they are aware of the public prosecutor, unless the public prosecutor is relieved of this responsibility by a court order;

(e) not subpoena counsel in a grand jury or other criminal proceeding to present evidence about a past or current client unless the prosecutor has a reasonable belief that:

(1) the requested information is not protected from disclosure by applicable privileges;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; j

(3) there is no other viable alternative to obtain the information;

(f) other than statements necessary to inform the public of the nature and extent of the actions of the public prosecutor's office and which serve a legitimate law enforcement purpose, you will refrain from making statements outside of court that have a significant likelihood of enhance the public belief of the person accused and use reasonable care to prevent prosecutors from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6 or this Rule; and prevent investigators, law enforcement officials and others who assist or cooperate with the prosecutor in a criminal matter from making an out-of-court statement that the prosecutor would be prohibited from doing under RPC 3.6 or this Rule.

(g) If a prosecutor becomes aware of new, credible, material evidence establishing a reasonable probability that a convicted defendant did not commit a crime for which the defendant was convicted, the prosecutor shall:

(1) if the conviction was obtained outside the jurisdiction of the prosecutor, promptly disclose such evidence to the competent authority, or

(2) if the conviction is within the district attorney's jurisdiction, conduct further investigation or use reasonable efforts to provoke an investigation to determine whether the defendant has been convicted of a crime he did not commit.

(h) If a prosecutor becomes aware of clear and convincing evidence that a defendant has been convicted in the prosecutor's jurisdiction of a crime that the defendant did not commit, the prosecutor will seek to reverse the conviction.

Comment

[1] A prosecutor bears the responsibilities of a justice minister whose duty is to seek justice rather than simply advocating the state's victory at all costs.ver Staat vs. Superior Oil, Inc., 875 SW2d 658, 661 (Tennessee 1994). For example, prosecutors are expected to be “impartial in the sense that trial decisions must be based on evidence, without discrimination or prejudice for or against any group or individual. At the same time, however, they are expected to pursue crimes with diligence and vigour, within the limits of the law and the practice of the profession”.State x Culbreath, 30 SW 3d 309, 314 (Tennessee 2000). Knowingly disregarding a duty or systematically abusing the prosecutor's discretionary powers may constitute a violation of RPC 8.4.

[2] In some jurisdictions, the defendant may forgo a preliminary hearing, thereby missing a valuable opportunity to challenge a probable cause. Consequently, prosecutors should not advise an unrepresented defendant to waive the right to a preliminary hearing or other important pre-trial rights. However, paragraph (c) does not apply to a defendant appearing pro se with the permission of the court. Nor does it prohibit the lawful questioning of a suspect without charge who has knowingly waived the right to counsel and silence.

[3] The exception in paragraph (d) recognizes that a prosecutor may apply to the court for an appropriate protection order when disclosure of information to the defense would result in material harm to an individual or the public interest.

[4] Paragraph (e) is intended to limit the issuance of subpoenas to attorneys in grand juries and other criminal proceedings to situations where there is a genuine need to interfere with the attorney-client relationship.

[5] Paragraph (f) supplements RPC 3.6, which prohibits extrajudicial statements likely to prejudice a judicial proceeding. In the context of criminal proceedings, the prosecutor's out-of-court statement can create the additional problem of reinforcing the public condemnation of the accused. For example, while the release of an indictment will inevitably have serious consequences for the accused, a prosecutor can and should avoid statements that serve no legitimate purpose of prosecution and could increase public ignominy of the accused. Nothing in this comment is intended to limit the statements that a Promoter may make that comply with RPC 3.6(b) or 3.6(c). Paragraph (f) is intended to apply only prior to the conclusion of a proceeding. A process ends when a final decision has been made in the appeal process or the appeal period has expired.

[6] When a prosecutor becomes aware of new, credible, material evidence establishing a reasonable probability that a person has been convicted outside of the prosecutor's jurisdiction for a crime that the person did not commit, paragraph (g) requires the immediate disclosure. authority, such as B. the Attorney General of the jurisdiction where the conviction took place. If the conviction is within the prosecutor's jurisdiction, paragraph (g) requires the prosecutor to review the evidence and conduct further investigations to determine whether the accused is in fact innocent or to make reasonable efforts to have another appropriate authority determine the conduct the necessary investigations.

[7] Under paragraph (h), the prosecutor must seek a reinstatement of the conviction as soon as the prosecutor has clear and compelling evidence that a defendant has been convicted in the prosecutor's jurisdiction of a crime that the defendant did not commit. Necessary steps may include disclosing evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant, and, if necessary, notifying the court that the prosecutor knows that the defendant committed the crime for which he was convicted , has not committed . 🇧🇷

[8] A prosecutor's independent good faith judgment that the new evidence is not of a nature to give rise to the obligations of paragraphs (g) and (h), even if later found to be defective, does not constitute a breach of this rule.

LAST CROSS REFERENCES

"known" and "know"verRPC 1.0(f)
"Material"verRPC 1.0(o)
"Appropriate"verRPC 1.0 (h)
"reasonably believes"verRPC 1.0 (me)
"significant"verRPC 1,0 (l)
"Aimed"verRPC 1,0 (m)

RULE 3.9: ATTORNEY IN NON-ADJUDITIVE PROCEEDINGS

An attorney representing a client before a legislature or administrative body in an out-of-court proceeding must disclose that the appearance is in a representative capacity and must comply with the provisions of RPC 3.3(a)(1), (a)(2). . , (b), (c) and (d); RPC 3.4(a), (b) and (c); RPC 3.5(a), (b) and (e); and RPC 4.1.

Comment

[1] Attorneys present facts, formulate problems and argue on the issues under consideration before bodies such as legislatures, city councils, and executive and administrative bodies acting in their capacity as legislators or policy-makers. Like a court, the adjudicator must be able to rely on the integrity of the submissions submitted to him. Attorneys appearing before this office must treat you honestly and in accordance with the applicable rules of procedure.verRPC 3.3(a)-(c), 3.4(a)-(c) und 3.5.

[2] Lawyers do not have the exclusive right to appear before extrajudicial bodies as they do in court. The requirements of this standard can therefore subject lawyers to rules that are not applicable to non-lawyers. However, legislators and administrations have a right to expect lawyers to treat them as the courts treat them.

[3] This Rule applies only when an Attorney is representing a client in connection with a proceeding of a governmental agency or legislative body before which the Attorney or the Attorney's client is presenting evidence or arguments. It does not apply to representing a client in a negotiation or other bilateral transaction with any government agency or in relation to an application for a license or other privilege, or the client's compliance with generally applicable disclosure requirements, such as B. Submission of taxes on rent. Returns. Nor does it apply to representing a client in connection with an investigation or investigation into the client's affairs by government investigators or investigators. Representation in these matters is governed by RPCs 4.1 through 4.4.

LAST CROSS REFERENCES

none.

CHAPTER 4

TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

RULE 4.1: TRUTH OF STATEMENTS TO OTHERS

(a) In the course of representing a client, an attorney will not knowingly misrepresent any material fact or law to any third party.

(b) If, while representing a client in a non-contentious matter, an Attorney becomes aware that the client intends to commit a criminal offense or fraud, the Attorney shall promptly advise the client to refrain from doing so and with the client discuss the consequences of customer behavior. If, after such discussion, the attorney learns that the client still intends to engage in the wrongful conduct, the attorney should:

(1) withdraw from representing the customer in the matter; j

(2) communicate the revocation to any person known to be aware of the client's legal representation in the matter and whose financial or property interests could be harmed by the client's criminal or fraudulent conduct. Attorney must also notify that person of disapproval of any written statement, statement or other material prepared by Attorney on behalf of the client that Attorney reasonably believes may be used by the client to further the crime. or fraud.

(c) If an attorney representing or representing a client in a non-contentious matter becomes aware, before the matter is closed, that the client, while representing the client through counsel, has committed a criminal offense or fraud, the Attorney will promptly instruct the client to rectify the crime or fraud and discuss with the client the consequences if they fail to do so. If the client refuses or is unable to eliminate the crime or fraud, the attorney must:

(1) If the client is represented in the case, withdraw from the representation and inform every person known to the lawyer who is aware of the representation of the client's lawyer in the case and whose financial or property interests could be damaged by the criminal conduct , or fraudulent customer; j

(2) notify such person of disapproval of any written statement, opinion or other material prepared by Attorney on behalf of Client that Attorney reasonably believes may encourage or encourage a crime or fraud by Attorney.

Comment

misrepresentation

[1] A lawyer has a duty to act truthfully towards third parties on behalf of a client, but generally has no positive duty to inform the other party of any relevant fact or law. A misrepresentation may occur when Attorney contains or corroborates a statement made by another person that Attorney knows is false. False statements may also result from partially true but misleading statements or omissions that amount to false affirmative statements. For dishonest conduct other than misrepresentation or misrepresentation by an attorney other than while representing a client, see RPC 8.4.

statements of fact

[2] This rule applies to statements of fact. Whether any particular statement is factual may depend on the circumstances. In accordance with generally accepted business conventions, certain types of statements should not generally be considered statements of material fact. Estimates of the price or value attributed to the subject of a transaction and the intentions of either party regarding the acceptable resolution of a claim usually fall into this category, as does the existence of an undisclosed amount of principal, unless the non-disclosure of the amount of principal would do so constitute fraud. . Lawyers must be aware of their obligations under applicable law in order to avoid criminal and intentional statements.

Crime or Fraud by Customer

[3] Paragraphs (b) and (c) provide guidance to attorneys who determine that a client is intent on or engaged in criminal or fraudulent conduct, and in some cases have even engaged the services of attorney to help the client help. or fraud. 🇧🇷 In order not to help the client with the crime or fraud, the lawyer must advise the client to refrain from the consequences of the criminal or fraudulent act or to rectify the consequences. If the client refuses or is unable to do so, the lawyer must stop representing the client in the case. In addition, this rule requires limited disclosures (notice of withdrawal or refusal of written work product) in cases where such disclosure is necessary for the attorney to prevent the client from using the attorney's services for further crime or fraud. Therefore, this rule supersedes to some extent the attorney's duties in RPC 1.6, 1.8(b) and 1.9(c), which prohibit the disclosure or use of information related to representation to the detriment of the client. However, in addition to the disclosure required by these Articles of Association, the proxy shall not disclose any information relating to the representation except as permitted by RPC 1.6.

[4] Where counsel knows that a client intends to commit a crime or fraud, in circumstances where counsel will not assist the crime by remaining silent, paragraph (b) requires a reprimand of the crime by the client or fraud and requires withdrawal if the customer does not withdraw from the conduct in question. While Attorney is under no obligation to disclose fraud of the client, whether contemplated or in progress, Attorney has an obligation to disclose the fact that he has withdrawn from representing the client to anyone who the Attorney reasonably believes is aware of has cheating. Attorney's involvement in the matter and his or her financial or property interests could be adversely affected by the client's anticipated or ongoing wrongdoing. This communication is necessary to completely distance the attorney from the wrongdoing of the client. If Customer's intended conduct is a misdemeanor, RPC 1.6(b) permits full disclosure of the misdemeanor, but such disclosure is not required by paragraph (b) of this Rule.

[5] In some cases, an attorney learns of a client's crime or fraud after preparing and innocently presenting statements, opinions or other materials to third parties who will be harmed if the client persists in his or her wrongdoing. 🇧🇷 If the client has misled the attorney, some of these statements, opinions or materials may be false or misleading. While accurate, they may be necessary to commit the crime or customer fraud. This presents the lawyer with a dilemma. Attorney cannot correct the statements, opinions or materials without the consent of the client. This would violate the prohibition on disclosure of information related to customer representation. However, doing nothing would allow the client to leverage the attorney's work in the client's ongoing efforts to commit fraud. To resolve this dilemma, paragraphs (b) and (c) do not require disclosure of the crime or fraud, but only require that the attorney effectively distance himself from the crime or fraud by informing the individuals concerned of the attorney's disapproval in Regarding the income from the transaction. crime, legal work. which the attorney reasonably believes the client may facilitate the crime or fraud. See RPC 1.6(b)(1) and (2) for circumstances in which an attorney may disclose information to prevent crime or fraud against a client and RPC 1.6(b)(3) for circumstances in which an attorney this may detect crime or fraud of a customer in order to prevent, correct or mitigate the consequences thereof. See RPC 1.6(c)(1) for circumstances in which an attorney is required to disclose information to prevent reasonably certain death or serious personal injury.

[6] This rule does not apply if the counsel becomes aware of the client's crime or fraud after the counsel's representation on the case is complete. In such circumstances, attorney must comply with RPCs 1.6, 1.8(b) and 1.9(c) and shall not make any disclosure relating to the client's crime or fraud except as permitted or required by these rules.see for example, RPC 1.6(b)(3) (allows disclosure to prevent, mitigate or remedy significant harm to the financial interests or property of another who may reasonably be expected to result from the commission of a crime or fraud by the resulting from or arising from assisting clients from whom the client has engaged the services of the attorney); RPC 1.6(b)(4) (Allow disclosures to seek legal advice on compliance with these standards); RPC 1.6(b)(5) (allowing disclosures to establish a defense against an allegation of misconduct); and RPC 1.6(c)(1) (Disclosure required to avoid reasonably certain death or serious bodily harm).

LAST CROSS REFERENCES

"Fraud" and fraudulent" See RPC 1.0(d)
"Aware" and "know" See RPC 1.0(f)
„Material“ Version RPC 1.0(o)
"Reasonably believe" See RPC 1.0(i)

RULE 4.2: COMMUNICATION WITH THE PERSON REPRESENTED BY THE LAWYER

In representing a client, an Attorney shall not communicate on the subject of representation with any person whom he knows is being represented by another Attorney in the matter, unless the Attorney has the consent of the other Attorney or is authorized by law or a court order.

Comment

[1] This rule contributes to the proper functioning of the legal system by protecting the person who is being represented by a lawyer in a matter from possible abuse by other lawyers involved in the matter and interference by these lawyers with the client - lawyer - protects relationship and reckless disclosure of information related to representation.

[2] This rule applies to communications with persons represented by an attorney in connection with the matter to which the communication relates.

[3] The rule also applies if the person represented initiates or consents to the communication. An Attorney shall immediately cease communication with any person if, after initiating communication, it learns that the person with whom communication is not permitted under this rule.

[4] This rule does not prohibit communication with a represented person, or an employee or agent of such person, about matters unrelated to the representation. For example, the existence of a dispute between a government agency and a private party or between two organizations does not prohibit one attorney from communicating with the other's non-attorney representatives on a separate matter, such as further illegal conduct. outside of the subject matter. This rule also does not preclude communicating with a represented person seeking advice from an attorney who is not representing a client on the matter. An Attorney may not make any communication prohibited by this Rule through the actions of another.verRPC 8.4(a). The parties to a matter may communicate directly with one another, and an attorney is not prohibited from advising a client on a communication to which the client is legally entitled. Likewise, an attorney who has independent justification or legal authority to communicate with a person represented may do so.

[5] Communications with clients may be authorized by specific constitutional or statutory provisions, rules of procedure, applicable case law or court order. Legally permitted communications may include, for example, communications by an attorney on behalf of a client exercising a constitutional or legal right to communicate with a government official who has the authority to settle the client's claims. Because of its exemption from communications authorized by law, this rule allows a prosecutor or prosecutor involved in a criminal or civil investigation to contact or direct investigating officers to communicate with a subject before the subject is arrested. Defendant, defendant or defendant appointed in criminal or civil proceedings against the client. A civil investigation is conducted under the government's police or regulatory powers to enforce the law. However, once a represented person has been arrested, prosecuted, charged, or named as a defendant in a criminal or civil enforcement proceeding, prosecutors and prosecutors must comply with this rule. The waiver of the defendant's constitutional right to practice law does not relieve the prosecution of its duty to comply with this provision.

[6] An attorney who is unsure about the lawfulness of communicating with an impersonator may apply for a court order. An attorney may also, in exceptional circumstances, seek a court order to authorize a communication that would otherwise be prohibited by this rule, e.g. B. if communication with a person represented by a lawyer is necessary to avoid damage with reasonable certainty.

[7] In the case of a represented organization, this rule prohibits communication by counsel for another person or entity regarding the matter on behalf of a director, an officer or agent or employee, or an agent or employee who oversees or directs the Board of the organization on the matter, has the authority to contractually bind the organization on the matter, or plays a significant role in determining the organization's position on the matter. If an agent or employee of an organization is represented in the matter by his own counsel, the consent of that counsel shall be sufficient for the purposes of this rule. Consent from the organization's attorney is not required to communicate with a former agent or employee.verRPC 4.4 (on the duty of counsel not to violate the organization's legal rights by requesting information protected by the organization's attorney-client privilege or as a product of the organization's attorney work). In communicating with an agent or current or former employee of an organization, an attorney shall not encourage or assist in breaching any duty of confidentiality owed by the agent to the organization.verPR 4.4.

[8] The ban on contact with the client only applies if the lawyer knows that the client is actually being represented in the matter to be dealt with. This means that the lawyer actually has knowledge of the fact of representation, but this actual knowledge can be inferred from the circumstances.verRPC 1.0(f).

[9] If the person with whom counsel communicates is not represented by counsel on the matter, counsel's communications are governed by RPC 4.3.

LAST CROSS REFERENCES

"He knows"verRPC 1.0(f)

RULE 4.3: TREATMENT BY AN UNREPRESENTED PERSON

In dealing on behalf of a client with a person who is not represented by counsel, counsel must not state or imply that counsel has no interest. If Attorney knows or reasonably should have known that the unrepresented person did not understand Attorney's role in the matter, Attorney will use reasonable efforts to correct the misunderstanding. Attorneys shall not give legal advice to an unrepresented person, other than advice to obtain legal counsel, where the attorney knows or reasonably should have known that the interests of that person conflict or may conflict with the interests of the unrepresented .customer

Comment

[1] An unrepresented person, particularly one with no legal experience, might assume that a lawyer is uninterested in loyalties or is a disinterested legal authority, even when the lawyer is representing a client. In order to avoid misunderstandings, the lawyer must usually identify the lawyer's client and, if necessary, explain that the client has interests that conflict with those of the unrepresented person. For misunderstandings that sometimes arise when an organization's attorney deals with an unrepresented member, see RPC 1.13(d).

[2] The Standard distinguishes between situations involving unrepresented persons whose interests may conflict with those of the attorney's client, and those where the interests of the person do not conflict with those of the client. In the first situation, the possibility that the lawyer will harm the interests of the unrepresented is so great that the rule prohibits any type of assistance, except assistance in finding a lawyer. Whether an attorney provides improper advice may depend on the experience and expertise of the unrepresented individual and the environment in which the conduct and comments occur. This rule does not prohibit an attorney from negotiating the terms of a transaction or settling a dispute with a person without representation. If the lawyer has declared that the lawyer represents a counterparty and not the person, the lawyer can inform the person about the conditions on which the lawyer's client will conclude an agreement or resolve a matter, prepare documents that require signature of the person and explain the legal opinion as to the meaning of the document or the legal opinion as to the underlying legal obligations.

LAST CROSS REFERENCES

"He knows"verRPC 1.0(f)
"Appropriate"verRPC 1.0 (h)
"I should reasonably know"verRPC 1.0(j)

RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD PARTIES

(a) In representing a client, the solicitor shall not:

(1) use means which do not serve any other essential purpose than to embarrass, delay or overburden any third party, or knowingly employ methods to obtain evidence in violation of that person's legal rights; any

(2) Threatening to bring a criminal or disciplinary charge to gain an advantage in a civil matter.

(b) An attorney receiving information (including but not limited to a document or electronically stored information) relating to representation of attorney's client that attorney knows or should know is protected by RPC 1.6 ( including information protected by the attorney's client). Privilege or Product of Work Rule) and was disclosed to Attorney inadvertently or by a person who is not authorized to disclose such information to Attorney, you must:

(1) immediately cease your review or use of the information;

(2) notify the individual or the individual's attorney if RPC 4.2 prohibits communication with the individual about the accidental or unauthorized disclosure; j

(3) to follow the direction of that person or counsel regarding disposition of the written information or not to use the written information pending a final determination of proper disposition from a court of competent jurisdiction.

Comment

[1] Responsibility to the client obliges the lawyer to subordinate the interests of third parties to those of the client, but this responsibility does not imply that the lawyer can ignore the rights of third parties. It is impractical to catalog all of these rights, but they include legal limitations on methods of obtaining evidence from third parties and unjustified interference in privileged relationships such as the attorney-client relationship. For example, an attorney may not secretly record another person's conversation or activities if doing so would violate state or federal law that specifically prohibits such recording. Otherwise, this rule does not prohibit secret recording unless the attorney has a material purpose other than to embarrass or embarrass the persons being recorded. However, it would be a violation of RPC 4.1 or RPC 8.4(c) for the attorney to falsely state or mislead another to believe that a conversation or activity was not recorded. However, the secret recording itself does not violate RPC 8.4(c) (prohibition of unfair or deceptive conduct) or RPC 8.4(d) (prohibition of conduct harmful to the administration of justice).

[2] The obligations imposed by paragraph (b) on counsel who know or reasonably should have known that they have received information protected under RPC 1.6 and which was disclosed to them inadvertently or by a person not authorized to disclose the information, reflecting the importance of attorney-client privilege in the law of that State and the finding that attorneys, in dealing with other attorneys and their clients, are required to take the measures required by that provision to maintain attorney-client privilege, even when it would be of some benefit to their clients do other. For the purposes of this International Standard, “electronically stored documents or information” includes, in addition to paper documents, e-mail and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”) that are subject to be read or legibly affixed.

[3] However, this rule does not prohibit the receiving attorney from seeking a final court decision regarding the proper disposal of such information, including a decision as to whether the disclosure relates to a waiver of attorney-client privilege or the work product rule. 🇧🇷 Where disclosure is made to a court for a ruling on disposition of the information, any disclosure of the information must be made in a manner that limits the court's access to the information and appropriate protective orders or other precautions must be in place made. required by the court. attorney as far as possible.

LAST CROSS REFERENCES

"white" and "conscious"verRPC 1.0(f)
"I should reasonably know"verRPC 1.0(j)
"significant"verRPC 1,0 (l)
"Written"verRPC 1.0(n)

CHAPTER 5

LAW OFFICES, LEGAL DEPARTMENTS AND
SERVICE ORGANIZATIONS

RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS,
AND SUPERVISORY LAWYERS

(a) A partner in a law firm and a solicitor who individually or jointly with other solicitors have comparable managerial authority in a law firm shall use reasonable efforts to ensure that the firm takes steps which provide reasonable assurance that all solicitors in who strictly adhere to the code of conduct.

(b) An Attorney who has direct supervisory authority over another Attorney must use reasonable efforts to ensure that the other Attorney complies with the Code of Ethics.

(c) A lawyer is liable for a breach of professional standards by another lawyer if:

(1) the lawyer orders or approves the behavior in question if he is aware of the specific behavior; any

(2) the Attorney is a partner or has comparable administrative authority in the firm in which the other Attorney works or has direct supervisory authority over the other Attorney and is aware of the conduct at a time when its consequences can be avoided ; or mitigated, but fails to take appropriate corrective action.

Comment

[1] Paragraph (a) applies to lawyers who have authority over the professional activities of a firm.verRPC 1.0(c). This includes members of a partnership, partners in a professionally organized law firm and members of other associations authorized to practice the legal profession; Attorneys with comparable seniority in a legal services organization or the legal department of a corporation or government agency; and lawyers who have intermediate management responsibilities within a firm. Paragraph (b) applies to Counsel who have supervisory authority over the work of other Counsel in a Firm.

[2] Paragraph (a) requires Attorneys with managerial authority within a firm to use reasonable efforts to establish internal policies and procedures that provide reasonable assurance that all Attorneys at the firm comply with the rules of professional conduct. These policies and procedures include those designed to identify and resolve conflicts of interest, set deadlines by which action must be taken on pending matters, consider client funds and assets, and ensure that inexperienced attorneys are properly supervised.

[3] Other measures that may be required to comply with the responsibilities prescribed in paragraph (a) may depend on the structure of the company and the manner in which it is exercised. In a small experienced law firm, informal oversight and regular verification of compliance with the required systems is usually sufficient. In a large company or in practical situations where difficult ethical issues frequently arise, more elaborate measures may be required. For example, some law firms have a process whereby junior attorneys can confidentially escalate ethical concerns directly to a designated senior partner or select committee.verPR 5.2. Businesses, large or small, can also rely on professional ethics training. In any case, the ethical atmosphere of a firm can influence the behavior of all of its members, and partners cannot assume that all attorneys associated with the firm will necessarily comply with the rules.

[4] Paragraph (c) expresses a general principle of personal responsibility for the actions of others.also seeRPC 8.4(a).

[5] Paragraph (c)(2) defines the duties of a partner or other counsel who has comparable managerial authority in a law firm and of a lawyer who has direct supervisory authority over the performance of certain legal services by another lawyer. Whether or not a lawyer has supervisory powers in certain circumstances is a fact. Partners and counsel with comparable authority have at least proxy responsibility for all of the firm's work, while a partner or manager in charge of a particular matter typically also has supervisory responsibility for the work of other firm's counsel involved in the matter. Appropriate corrective action by a partner or lead counsel would depend on the immediacy of that counsel's involvement and the seriousness of the misconduct. A manager must intervene to prevent the avoidable consequences of misconduct when the manager knows the misconduct has occurred. Therefore, if a senior counsel is aware that a subordinate has misrepresented a matter to an opposing party in a negotiation, both the superior and subordinate have a duty to correct the resulting misunderstanding. This duty is in addition to counsel's RPC 8.3(a) duty to report professional misconduct to the Office of the Disciplinary Advisor. However, the obligation to take reasonable remedial action does not require the attorney to take action in violation of these Rules, such as disclosing information relating to representing a client in violation of RPC 1.6. The obligation to mitigate damages also does not require that the lawyer compensates a person for the damage that a person has suffered as a result of the misconduct of which he is aware.

[6] Professional misconduct by a Regulated Attorney may reveal a breach of paragraph (b) by the Regulated Attorney even if it does not imply a breach of Paragraph (c) because there was no guidance, confirmation or knowledge of the breach.

[7] Except for this rule and RPC 8.4(a), an attorney has no disciplinary responsibility for the conduct of a partner, employee or subordinate. Whether an attorney may be held civilly or criminally liable for the conduct of another attorney is a legal issue beyond the scope of these Rules. This rule is intended only to provide a basis for professional discipline and is not intended to alter the legal rights and obligations of partners or attending attorneys in relation to the conduct of other attorneys with whom they are associated.

[8] The duties this Standard places on principals of counsel and tax attorneys do not alter the personal obligation of each attorney in a firm to comply with the Standards of Professional Conduct.

LAST CROSS REFERENCES

"company" and "firm"verRPC 1.0(c)
"He knows"verRPC 1.0(f)
"Companion"verRPC 1.0(g)
“Adequate” See RPC 1.0(h)

RULE 5.2: RESPONSIBILITIES OF THE DEPUTY ATTORNEY

(a) A barrister is bound by the code of ethics even if he has acted on the instruction of another person.

(b) A junior counsel is not in breach of professional ethics if that counsel is acting in accordance with the reasonable judgment of a senior counsel on a disputed professional duty.

Comment

[1] Although a lawyer is not exempt from liability for a breach because he or she acted on instructions from a manager, that fact may be relevant in determining whether a lawyer had the knowledge necessary to ensure that his or her conduct constituted a violation Violation represents Ass regras . For example, if a subordinate makes a frivolous allegation under the direction of a supervisor, the subordinate will not be charged with misconduct unless he was aware of the frivolous nature of the document.

[2] When lawyers in a supervisor-subordinate relationship are faced with an issue of professional judgment of ethical duty, the supervisor may assume responsibility for the judgment. Otherwise no consistent course of action or position could be taken. If the question can reasonably only be answered in one way, then the duty of both attorneys is clear and they are equally responsible for fulfilling it. However, if the issue is somewhat moot, someone needs to decide how to proceed. Such authority generally rests with the sub-counsel's supervisor, another counsel who has primary responsibility for representation, or a counsel authorized to resolve such matters on behalf of the firm, and a sub-counsel may be assigned accordingly. For example, if the question arises as to whether the interests of two clients conflict under RPC 1.7, a reasonable resolution of the matter by the supervisor should professionally protect the subordinate if the resolution is later challenged.

LAST CROSS REFERENCES

"Appropriate"verRPC 1.0 (h)

RULE 5.3: RESPONSIBILITIES ASSOCIATED WITH NON-PARTICIPANTS

In relation to a non-lawyer employed by or employed by or associated with a Lawyer:

(a) A Partner and Counsel who, individually or jointly with other Counsel, holds comparable managerial authority in a law firm shall use reasonable efforts to ensure that the firm takes steps which provide reasonable assurance that the conduct of the person who is not a lawyer, is consistent with the duties of a lawyer;

(b) an Attorney who has direct supervisory authority over a Non-Attorney will use reasonable efforts to ensure that the Non-Attorney's conduct is consistent with the Attorney's professional duties; j

(c) An Attorney shall be held liable for conduct by a non-Attorney which would constitute a breach of professional ethics if conducted by an Attorney where:

(1) the lawyer orders or approves the behavior in question if he is aware of the specific behavior; any

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the non-lawyer works or has direct supervisory authority over the non-lawyer and has knowledge of the behavior of the non-lawyer at a time when he is working and its consequences can be avoided or mitigated, but no appropriate corrective action is taken.

Comment

[1] Paragraph (a) requires Attorneys with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures that provide reasonable assurance that non-attorneys at the firm are acting in accordance with professional standards .verRPC 5.1 comment [1]. Paragraph (b) applies to Lawyers who have supervisory authority over the work of a non-lawyer. Paragraph (c) sets out the circumstances in which an Attorney is responsible for conduct by a non-Attorney that would constitute a breach of the professional rules if committed by an Attorney.

No lawyers in the office

[2] Attorneys typically employ assistants in their practice, including clerks, investigators, law student interns, and paraprofessionals. These assistants, whether employees or independent contractors, act on Attorney's behalf in the performance of Attorney's professional services. A lawyer must adequately instruct and supervise these assistants in the ethical aspects of their work, particularly with regard to the duty of non-disclosure of information relating to client representation, and be accountable for the outcome of their work. The measures applied to the supervision of non-lawyers must take into account that they have no legal training and are not subject to any professional discipline.

No lawyer outside the company

[3] An attorney may employ non-attorneys off-office to assist in the provision of legal services to a client. Examples include hiring an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an internet-based service to store client information. In using such services outside of the Firm, the Attorney must use reasonable efforts to ensure that the services are provided in accordance with the Attorney's professional duties. The extent of this obligation will depend on the circumstances, including the non-lawyer's education, experience and reputation; the nature of the services concerned; the terms of any customer privacy agreement; and the legal and ethical framework of the jurisdictions in which services are provided, particularly with regard to confidentiality.also seeRPC 1.1 (Competence), 1.2 (Assignment of Authority), 1.4 (Client Communications), 1.6 (Confidentiality), 5.4(a) (Professional Independence of Attorney) and 5.5(a) (Tortious Practice). When engaging or engaging a non-lawyer outside of the firm, the lawyer must issue instructions appropriate to the circumstances to provide reasonable assurance that the non-lawyer's conduct is consistent with the lawyer's professional duties.

[4] When the client directs the selection of a particular service provider outside of the firm, the attorney should normally agree with the client to share supervisory responsibilities between the client and the attorney.verPR 1.2. In such an assignment in a matter pending in court, attorneys and parties may have additional legal obligations beyond the scope of these Rules.

LAST CROSS REFERENCES

"company" and "firm"verRPC 1.0(c)
"He knows"verRPC 1.0(f)
„Socio“ Version RPC 1.0(g)
“Adequate” See RPC 1.0(h)

RULE 5.4: PROFESSIONAL INDEPENDENCE OF ATTORNEY

(a) An attorney or law firm will not share attorneys' fees with a non-lawyer except that:

(1) An attorney's contract with the law firm, associate or associate may provide for the payment of money to attorney's property or to a designated person or persons for a reasonable period of time after attorney's death;

(2) an Attorney acquiring the practice of a deceased, disabled or missing Attorney may, subject to the provisions of RPC 1.17, pay the agreed purchase price to the estate or other representative of such Attorney;

(3) A lawyer or law firm may enroll non-law associates in a compensation or retirement plan, even if the plan is based in whole or in part on a profit-sharing arrangement;

(4) an attorney may share court-awarded fees with a client represented in the case or with a non-profit organization that employs, commissions, or recommends the attorney in the case;

(5) An Attorney who is a full-time employee of a Client may share an attorney's fee with the client to the extent necessary to reimburse the client for the actual costs incurred by the client as a result of the Attorney providing another client in full represents -temporary employment of the customer with whom the fees are shared; j

(6) An attorney may pay a non-profit intermediary organization a referral fee calculated as a reasonable percentage of the fee paid to the attorney by the client referred by the non-profit intermediary organization to the attorney.

(b) An attorney shall not enter into a partnership with a person who is not an attorney if one of the activities of the partnership is the exercise of the law.

(c) An Attorney shall not allow any person who recommends, employs or pays for the Attorney to provide legal services to others to direct or regulate the Attorney's professional judgment in the provision of such legal services.

(d) An Attorney shall not practice with or in the capacity of a professional association or other association authorized to practice the practice of Advocacy for profit if:

(1) a person who is not an Attorney owns an interest in the Attorney, except that a trustee of an Attorney's estate may hold the Attorney's shares or interests for a reasonable period during the administration;

(2) a person who is not an attorney, is a director or officer, or holds a position of similar responsibility in any form of association other than a corporation; any

(3) A person who is not a lawyer has the right to determine or control the professional judgment of a lawyer.

Comment

[1] The provisions of this rule express traditional limitations on fee-sharing and co-ownership of law firms by non-lawyers. These limitations are designed to protect the attorney's independent professional judgment. If someone other than the Client pays Attorney's fees or salary, or recommends the employment of Attorney, this Agreement does not alter Attorney's obligation to Client. As stated in paragraph (c), such agreements must not impair the professional judgment of counsel.

[2] This rule also expresses the traditional limitations on allowing a third party to direct or regulate a lawyer's professional judgment in providing legal services to others.also seeRPC 1.8(f) (Attorney may accept indemnification from a third party provided it does not prejudice the Attorney's independent professional judgment and the client provides informed consent.)

LAST CROSS REFERENCES

"company" and "firm"verRPC 1.0(c)
"Companion"verRPC 1.0(g)
"Appropriate"verRPC 1.0 (h)

RULE 5.5: UNAUTHORIZED LEGAL PRACTICE;
MULTI-LEGAL PRACTICE

(a) A barrister shall not practice as a bar, nor assist another to practice, in any jurisdiction which is contrary to the regulations of the legal profession in that jurisdiction.

(b) A barrister who is not licensed in that jurisdiction shall not:

(1) except as authorized by these Rules or any other law, establish an office or other systematic and continuous presence in that jurisdiction for the exercise of the right; any

(2) present or otherwise demonstrate to the public that the attorney is licensed to practice law in that jurisdiction.

(c) An attorney licensed in another United States jurisdiction who has not been banned or suspended from practicing in any jurisdiction may provide temporary legal services in that jurisdiction that:

(1) be made in cooperation with an attorney licensed in that jurisdiction and actively involved in the matter;

(2) connected with or reasonably connected with any pending or potential proceeding before a court in that or any other jurisdiction where counsel or a person assisting counsel is authorized by law or regulation to appear in any such proceeding ; or reasonably expect to be so authorized;

(3) are involved in, or reasonably related to, any pending or potential arbitration, mediation, or other alternative dispute resolution process in that or any other jurisdiction where the Services result from, or are reasonably related to, representing an existing client in a forum in which the lawyer is licensed and are not services for which licensing pro hac vice is required by the forum; any

(4) not covered by subsection (c)(2) or (c)(3) and arising out of or reasonably connected with the legal representation of a client existing in a jurisdiction in which the attorney is admitted.

(d) An attorney licensed in another United States jurisdiction who is not prohibited or disbarred from practicing law in any jurisdiction may provide legal services through an office or other systematic and continuous presence in that jurisdiction, the:

(1) are provided to Attorney's employer or its affiliated organizations and are not services for which the Forum requires pro hac vice approval; any

(2) are services that Attorney is authorized to provide by federal or other law or regulation of such jurisdiction.

(3) An attorney providing legal services under paragraph (d)(1) is subject to registration under Tenn. great Connecticut. R.7, §10.01, and may be subject to other requirements, including customer protection fund exams and mandatory legal training. Failure to register in a timely manner may prevent the attorney from subsequently seeking admission to that jurisdiction.

(e) An attorney licensed under paragraph (d)(1) of this Rule to practice legal services in that jurisdiction may also practice pro bono legal services in that jurisdiction provided such services are provided by a not-for-profit organization. Bar Association, pro bono program, or legal services program, or through the organization(s) expressly authorized in that jurisdiction, and provided services are not required by the Forum for pro hac Vice accreditation.

(f) An attorney providing legal services in Tennessee pursuant to paragraph (c) or (d) must notify the attorney's client that the attorney is not licensed to practice practice in Tennessee and must obtain the client's consent for a obtain such representation.

(g) An attorney providing legal services in Tennessee pursuant to paragraph (c) or (d) shall be subject to the personal jurisdiction of Tennessee for any claims arising out of the attorney's actions in the provision of such services in that state.

(h) An attorney or law firm shall not employ or continue to employ a barred or suspended attorney as attorney, general counsel, paralegal, paralegal, or in any other quasi-legal capacity.

Comment

[1] A lawyer may only practice as a lawyer in a field of law in which he is admitted to the bar. An attorney may be regularly licensed to practice law in a jurisdiction or authorized to practice law by warrant or court order or by law for a limited purpose or on a limited basis. Paragraph (a) applies to the unauthorized exercise of a right by a lawyer, whether by the direct action of the lawyer or by the lawyer acting on behalf of another person. For example, an attorney may not assist a person to practice law if doing so would be contrary to the professional ethics of that person's jurisdiction.

[2] The definition of legal practice is set by law and varies from jurisdiction to jurisdiction. Limiting the exercise of the right to members of the Bar by definition protects the public from the provision of legal services by unqualified persons. This rule does not prohibit an attorney from using the services of paraprofessionals and delegating functions to them, provided the attorney oversees the delegated work and retains accountability for their work.verPR 5.3.

(Video) What is the difference between a code of ethics and a code of conduct?

[3] A lawyer can give non-lawyers, whose work requires legal knowledge, professional guidance and instruction, e.g. Lawyers may also assist non-independent lawyers, such as: B. Paraprofessional attorneys who are authorized under the law of a jurisdiction to provide specific legal services. In addition, a lawyer can advise non-lawyers who wish to proceed pro se.

[4] Except as permitted by law or this rule, an attorney who is not generally licensed to practice in that jurisdiction is in breach of paragraph (b)(1) if the attorney maintains an office or other systematic and continuous presence established in that jurisdiction. for legal practice. The presence can be systematic and continuous, even if the lawyer is not physically present here. Such attorney shall not conceal from the public or otherwise represent that he or she is licensed to practice law in that jurisdiction.also seeRPC 7.1(a).

[5] There are instances where an attorney licensed in another United States jurisdiction and not barred or suspended from practicing law in any jurisdiction may provide temporary legal services in that jurisdiction in circumstances that do not impose an unreasonable risk represent the interests of his clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that the behavior was not so identified does not mean that the behavior is authorized or not. Except as provided in paragraphs (d)(1) and (d)(2), this rule does not authorize an attorney to establish an office or other systematic and continuous presence in that jurisdiction without being licensed to practice law here.

[6] There is no single test to determine whether the services of a solicitor in that jurisdiction are "temporary" and therefore may be permissible under paragraph (c). Services may be "temporary" even if the lawyer provides services in that jurisdiction on a regular basis or for a long period of time, e.g. B. when the lawyer represents a client in a single hearing or a lengthy litigation.

[7] Paragraphs (c) and (d) apply to attorneys licensed in any United States jurisdiction, including the District of Columbia and any state, territory or commonwealth of the United States. The word "licensed" in paragraph (c) assumes that the attorney is licensed in the jurisdiction in which the attorney is licensed and excludes an attorney who is technically licensed but not licensed because, for example, the attorney inactive state is permitted.

[8] Paragraph (c)(1) recognizes that the interests of clients and the public are protected when an attorney licensed only in another jurisdiction cooperates with an attorney licensed in that jurisdiction. However, for this paragraph to apply, an attorney licensed in that jurisdiction must actively participate in and share responsibility for client representation.

[9] Lawyers who are not generally licensed in a jurisdiction may be empowered by law or by an order of a court or administrative authority to appear before the court or authority. This power of attorney may be granted in accordance with the formal rules for pro hac vize authorization or in accordance with the informal practice of the court or authority. Pursuant to paragraph (c)(2), an attorney will not be in breach of this rule by appearing before a court or authority under such authority. To the extent that a court order or other law of that jurisdiction requires that an attorney not licensed in that jurisdiction must obtain a Pro Hac Vice license before appearing before any court or administrative body, that regulation requires that the solicitor obtains such approval.

[10] Paragraph (c)(2) also provides that an attorney acting temporarily in that jurisdiction shall not be in breach of this rule if the attorney acts pending a trial or hearing in a jurisdiction in which the bar is admitted .. advocacy or if the barrister reasonably expects to be admitted pro hac vice. Examples of such behavior include meeting with clients, interviewing potential witnesses, and reviewing documents. Likewise, an attorney licensed only in one other jurisdiction may participate temporarily in that jurisdiction in connection with any litigation pending in any other jurisdiction in which the attorney is authorized or expects to appear, including the granting of representation in this jurisdiction.

[11] Where an attorney has been admitted or is expected to appear before a court or administrative body, paragraph (c)(2) also permits the conduct of attorneys associated with that attorney in the matter but not expecting to appear before court or administrative authority. For example, junior attorneys may conduct investigations, review documents, and attend witness meetings in support of the trial attorney.

[12] Paragraph (c)(3) permits an attorney licensed to practice law in another jurisdiction to provide services in that jurisdiction on a temporary basis if such services are reasonably connected with a pending arbitration, mediation or other opportunity or alternatives are available. Dispute resolution procedures in that or any other jurisdiction where the Services result from, or are reasonably connected with, the legal representation of a Client that exists in a jurisdiction in which the Attorney is admitted. However, counsel must obtain pro hac vice approval in the event of arbitration or court-bound mediation, or otherwise as required by the rules or law of the court.

[13] Paragraph (c)(4) authorizes an attorney licensed in another jurisdiction to provide on a temporary basis certain legal services in that jurisdiction arising out of or reasonably connected with the legal representation of an existing client in a jurisdiction in which the Advocate but licensed does not fall under subsection (c)(2) or (c)(3). These services include legal services and services that may be performed by non-lawyers but qualify as legal practice when performed by lawyers.

[14] Paragraphs (c)(3) and (c)(4) require that the Services result from or be reasonably connected with the representation of a client by counsel existing in a jurisdiction in which the attorney is licensed. A number of factors underscore this connection. Attorney's client may be resident in, or have significant contacts with, the jurisdiction in which Attorney is licensed. The matter, while affecting other jurisdictions, may have significant connection with that jurisdiction. The necessary relationship may arise when customer activities or legal matters involve multiple jurisdictions, e.g. B. When employees of a multinational company research potential business locations and engage the services of their attorneys to assess the relative merits of each location. Lawyers who wish to temporarily provide non-remunerated legal services in a territory affected by a major disaster but where they are not registered to practice law, and lawyers from the affected territory who are temporarily practicing in another jurisdiction but where they are not registered to practice law are should consult Tenn. great Connecticut. The 47th

[15] Paragraph (d) identifies two circumstances in which an attorney licensed in another United States jurisdiction and not disqualified or suspended from practicing law in any jurisdiction shall establish and maintain an office or other systematic presence in that jurisdiction may practice law as well as to provide temporary legal services. Except as provided in paragraphs (d)(1) and (d)(2), an attorney admitted to practice in another jurisdiction and who establishes an office or other systematic or permanent presence in that jurisdiction is an attorney authorized in another jurisdiction law generally in that jurisdiction.

[16] Paragraph (d)(1) applies to an attorney engaged by a client to provide legal services to the client or its affiliates, i.e. H. Entities that control, are controlled by, or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to officers or employees of the Employer. The paragraph applies to in-house company attorneys, prosecutors and other employees who provide legal services to the employer. The attorney's ability to represent the employer outside of the jurisdiction in which the attorney is licensed is generally in the best interests of the employer and does not create undue risk to the client and others as the employer is well placed to have the qualifications and Assess the quality of the lawyer. legal profession.

[17] [On January 1, 2016, RPC 5.5 was modified by moving the content of the previous comment [17] to the new RPC 5.5(d)(3) (above).]

[18] Paragraph (d)(2) recognizes that an attorney may practice legal services in a jurisdiction in which he is not licensed if required to do so by federal or other law, including any statute, court rule, executive order or court authorized is laws. Precedent.see for example, alternative Tennessee. Connecticut. R. 7, §5.01(g) (Practice Pending Authorization by Licensed Applicant in Another Jurisdiction).

[19] A barrister practicing in, or subject to the disciplinary authority of, that jurisdiction in accordance with paragraphs (c) or (d).verRPC 8.5(a). In addition, pursuant to paragraph (g), an attorney providing legal services in Tennessee pursuant to paragraphs (c) or (d) shall be deemed subject to the personal jurisdiction of Tennessee for any claim arising out of the attorney's actions in the performance of such services Services. services in this state.

[20] Paragraph (f) requires that an attorney practicing in that jurisdiction under paragraphs (c) or (d) informs the client that the attorney is not licensed to practice law in that jurisdiction.verauch RPC 1.4(b).

[21] Paragraphs (c) and (d) do not authorize communications advertising legal services in that jurisdiction by attorneys licensed in other jurisdictions. Whether and how attorneys may notify the availability of their services in that jurisdiction is governed by RPCs 7.1 through 7.5.

[22] Paragraph (h) states that an attorney or law firm shall not employ or continue to employ a barred or suspended attorney as attorney, paralegal, paralegal, paralegal or any other position of a quasi-legal nature. This paragraph is consistent with existing Tennessee law. See Formal Ethical Opinion 83-F-50; On here. great Connecticut. R. 9, § 28.8 (Provision: “[no]more than twenty days after the effective date of the order [expulsion, suspension or transfer to disabled status] the defendant's counsel shall cease maintaining a presence or occupying an office in which practice is practiced, except as provided in Section 12.3(c)").

LAST CROSS REFERENCES

"Informed Consent"verRPC 1.0(e)
"Reasonable"verRPC 1.0 (h)
"Aimed"verRPC 1,0 (m)

RULE 5.6: RESTRICTIONS ON EXERCISE

An attorney will not offer or do the following:

(a) any partnership, stockholder, operating, employment or other similar agreement restricting an Attorney's right to practice after termination, other than a retirement benefit agreement; any

(b) an agreement where limiting the exercise of counsel's right to exercise is part of the resolution of a dispute with a client.

Comment

[1] An agreement that restricts attorneys' right to practice after leaving an employing firm or organization not only limits their professional autonomy, but also limits clients' freedom to choose an attorney. Paragraph (a) prohibits such arrangements unless restricted by provisions relating to pensions for service in the employing company or organization.

[2] Paragraph (b) prohibits an attorney from representing others in connection with the settlement of a claim on behalf of a client.

[3] This Standard does not apply to prohibition restrictions that may be contained in a law firm's terms of sale under RPC 1.17.

LAST CROSS REFERENCES

none.

RULE 5.7: RESPONSIBILITIES REGARDING LEGAL SERVICES

(a) An attorney is subject to the code of ethics relating to the provision of legal services under paragraph (b) if the legal services are provided:

(1) by counsel in circumstances other than counsel providing legal services to clients; any

(2) in other circumstances, by an entity controlled by Counsel individually or jointly with others, if Counsel does not take reasonable steps to ensure that a person using the Legal Services is aware that the Services are not legal services and that the safeguards of the client relationship do not exist.

(b) The term “legal services” means services which can reasonably be provided in connection with, and are materially connected with, the provision of legal services and which are not prohibited as unauthorized legal practices when provided to a person who is doing so is not a lawyer.

Comment

[1] When an attorney provides legal services or controls an organization that does so, there is a potential for ethical issues. Chief among these is the possibility that the person to whom legal services are being provided may not understand that the services may not provide the protections normally afforded as part of the attorney-client relationship. For example, the recipient of legal services may expect that the protection of client confidence, the prohibition on representing persons with conflicting interests, and the duties of an attorney to maintain professional independence will apply to the provision of legal services when they may not.

[2] RPC 5.7 applies to the provision of legal services by an attorney even if the attorney is not providing legal services to the person to whom the legal services are being provided and when the legal services are being provided through a law firm or a separate entity. The rule identifies the circumstances in which all professional codes of conduct for the provision of legal services apply. But even without such circumstances, the behavior of a lawyer providing legal services is subject to the rules generally applicable to lawyers, regardless of whether the behavior involves the provision of legal services.see for example, RPC 8.4.

[3] Where legal services are provided by an attorney in circumstances different from the attorney providing legal services to clients, the attorney must, in providing the legal services, comply with the requirements of the rules of professional conduct, as provided for in paragraph (a)(1). Even if legal and paralegal services are provided in different circumstances, for example by separate offices or different assistants within the firm, the professional standards set out in paragraph (a)(2) apply to the lawyer.

[4] Legal services may also be provided by an entity other than that through which the lawyer provides legal services. When the attorney, alone or with others, has control of the affairs of such an entity, the rule requires the attorney to take reasonable steps to ensure that any person using the services of the entity knows that the Services provided by the Institution are not legal services. professional regulations on the client relationship do not apply. An attorney's control of a corporation extends to the ability to direct its practice. Whether a lawyer has such control depends on the circumstances of the individual case.

[5] If an attorney-client relationship exists with a person who is referred by an attorney to a separate legal services entity controlled by the attorney individually or with others, the attorney must comply with RPC 1.8(a).

[6] When the reasonable steps referred to in paragraph (a)(2) are taken to ensure that a person using legal services understands the practical implication or meaning of the non-applicability of the Code of Ethics, the solicitor must so inform the person notify receipt of services related to the law sufficient to ensure that the individual understands the importance of the fact that the individual's relationship with the business entity will not be an attorney-client relationship. The notification must be made before signing any contract for the provision or provision of services related to the law, preferably in writing.

[7] The lawyer must demonstrate that he has taken reasonable steps in the circumstances to convey the desired understanding. For example, an experienced user of legal services, such as a public corporation, may need less explanation than someone who is not used to distinguishing between legal services and legal services, such as a person seeking tax advice from a lawyer. Accountants or investigative services related to a claim.

[8] Regardless of the experience of potential recipients of legal services, an attorney should take special care to keep the provision of legal services separate from legal services to minimize the risk of the recipient assuming that legal services are legal services. The danger of such confusion is particularly acute when the lawyer is providing both types of services in relation to the same matter. In certain circumstances, legal and legal services may be so closely intertwined that they cannot be distinguished from one another and the disclosure and consultation requirements of paragraph (a)(2) of the Rule may not be met. In such event, an Attorney is responsible for ensuring that the conduct of Attorney and, to the extent required by RPC 5.3, non-attorney employees in the separate entity controlled by Attorney complies in all respects with the Rules. of professional behavior.

[9] Attorneys providing legal services may serve a wide range of clients' financial and other interests. Examples of legal services include the provision of title insurance, financial planning, accounting, escrow services, real estate consulting, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.

[10] Where an attorney is required to provide recipients of such services with the protections in the rules governing the attorney-client relationship, the attorney should pay particular attention to the provisions in the rules dealing with conflicts of interest (RPC 1.7 through 1.11, particularly RPC 1.7(a)(2) and 1.8(a),(b) and (f)) and will diligently comply with the requirements of RPC 1.6 regarding the disclosure of Confidential Information. Advertising for entitlement-related services must also comply in all respects with RPCs 7.1 and 7.3, which deal with advertising and solicitation. In this context, lawyers must pay particular attention to what obligations may arise from the decision of the law of a jurisdiction.

[11] Where the full protection of all professional codes does not apply to the provision of services related to the law, principles of law outside of the rules, such as the principal law, apply to legal obligations. for beneficiaries. These other legal bases may create different levels of protection for the recipient in relation to confidentiality of information, conflicts of interest and permissible business relationships with customers.also seeRPC 8.4 (Inappropriate Behavior).

LAST CROSS REFERENCES

"He knows"verRPC 1.0(f)
"reasonable" and "reasonable"verRPC 1.0 (h)

CHAPTER 6

PUBLIC SERVICE

RULE 6.1: PRO BONO PUBLIC SERVICE

A lawyer should aim to provide at least 50 hours of free public legal advice per year. In discharging this responsibility, the lawyer must:

(a) provide a substantial part of those services free of charge or with no expectation of payment for:

(1) low-income people; any

(2) charitable, religious, civic, community, governmental, and educational organizations in causes primarily aimed at meeting the needs of people of limited resources; j

(b) provision of additional services by:

(1) Providing legal services, free of charge or at a significantly reduced cost, to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charities, religious, civic, community, governmental and educational organizations in related matters for your organizational purposes when payment of standard attorneys' fees would significantly drain the organization's financial resources or would be unreasonable;

(2) providing legal services at a significantly reduced rate to low-income individuals; any

(3) Participate in activities to improve the law, legal order, or the legal profession.

(c) In addition to providing public legal services without guarantee, a lawyer must voluntarily provide financial support to organizations that provide legal services to low-income individuals.

Comment

[1] Every attorney, regardless of professional reputation or professional workload, has a responsibility to provide legal services to those who cannot afford them, and personal involvement in the problems of the underprivileged can be one of the most rewarding legal experiences. Attorney Lawyer. This rule requires all attorneys to provide at least 50 hours per bono service per year. It is recognized that in some years a lawyer may work more or less hours than the established annual standard. Services may be provided in civil, criminal, or quasi-criminal matters for which the government is not required to provide funds for legal representation, such as: B. Appeals after conviction of the death penalty.

[2] Paragraphs (a)(1) and (a)(2) recognize the critical need for legal services that exists among people of limited resources by providing that a significant majority of the legal services provided annually to the disadvantaged be provided free of charge. or payment expectation. Legal services, as referred to in these paragraphs, encompass a wide range of activities, including individual and class representation, providing legal advice, lobbying for legislation, enacting administrative regulations, and providing free training or mentoring to those representing those with scarce resources. The variety of these activities should facilitate the participation of prosecutors, even if their participation in external advocacy practice is limited.

[3] Persons entitled to legal services under paragraphs (a)(1) and (a)(2) include those who are financially eligible to participate in programs sponsored by Legal Services Corporation, and those whose income and financial resources are slightly above the guidelines. are used by such programs, but still cannot afford a lawyer. Legal services can be offered to individuals or organizations such as: B. Shelters for the homeless, centers for battered women and pantries for low-income people. The term “government organizations” includes, but is not limited to, public protection programs and departments of government or public sector agencies.

[4] Since the service is intended to be provided without fee or expectation of fee, the Attorney's intent to provide gratuitous legal services is essential for the work performed within the meaning of paragraphs (a)(1) and (a)(two). 🇧🇷 Accordingly, services rendered cannot be considered gratuitous where no upfront payment is made, but the award of attorneys' fees in an initially accepted case would not preclude such services from being listed under this paragraph. Attorneys who receive fees in these cases are encouraged to donate a reasonable portion of those fees to organizations or projects that benefit low-income individuals. In some cases, the fees paid by the government to an appointed attorney are so low compared to a reasonable fee for the volume and quality of work performed, such as: B. In post-conviction death penalty cases, the attorney must be licensed for the purposes of this rule because they have provided the services pro bono. This would also be the case where a lawyer is appointed to assist in a criminal case, the fees paid to the lawyer are limited and the lawyer spends a significant amount of time handling the case once the maximum is exceeded.

[5] While it is possible for an attorney to meet the annual obligation to provide pro bono services solely through the activities described in paragraph (a), the obligation may also be met in a variety of ways, as set out in paragraph (b) ). Constitutional, statutory or regulatory restrictions may prohibit or prevent government and public sector attorneys and judges from providing the pro bono services described in paragraphs (a), (b)(1) and (b)(2). Accordingly, where these restrictions apply, government and public sector lawyers and judges may discharge their honorary responsibilities by providing the services described in paragraphs (b)(3) and (c).

[6] Paragraph (b)(1) involves the provision of certain types of legal services to those whose income and financial resources place them beyond limited means. It also allows the pro bono attorney to accept a substantially reduced fee for their services. Examples of the types of issues that might be addressed in this paragraph include First Amendment claims, Title VII claims, and environmental claims. In addition, a wide range of organizations may be represented, including social services, medical research, cultural and religious groups.

[7] Paragraph (b)(2) covers cases where attorneys consent and receive modest fees for the provision of legal services to low-income individuals. This paragraph encourages participation in judicare programs and acceptance of court hearings where fees are substantially lower than normal attorneys' fees.

[8] Paragraph (b)(3) recognizes the value of attorneys engaged in activities that improve the law, the legal system, or the legal profession. Some examples of the many activities covered by this paragraph are serving on Bar Committees; serving on volunteer boards or legal service programs; participate in Law Day activities; work as a lecturer in further legal education; act as a mediator or arbitrator; and engage in legislative lobbying to improve the law, the legal system or the profession.

[9] Because the provision of pro bono services is a professional responsibility, it is an individual ethical obligation of each attorney. However, there may be times when it is not possible for an attorney to obtain pro bono services. At such times, a lawyer can take on volunteer responsibilities by financially supporting organizations that offer free legal advice to people on low incomes. This financial support must be commensurate with the value of the hours otherwise worked. Additionally, it may sometimes be more practical to fulfill the pro bono responsibility collectively, for example through a company's aggregated pro bono activities.

[10] Since the efforts of individual lawyers are insufficient to meet the need for free legal services among the poor, the government and the profession have instituted additional programs to provide such services. All attorneys are expected to financially support such programs in addition to providing direct pro bono services or making financial contributions when pro bono services are not possible.

[11] Law firms must act reasonably to permit and encourage all attorneys in the firm to provide the pro bono legal services required by this rule.

[12] Because this rule is more of a right than a binding ethical duty, it is not intended to be enforced through disciplinary proceedings.

LAST CROSS REFERENCE

"essential" and "essential"verRPC 1,0 (l)

RULE 6.2: ACCEPTANCE OF NOMINATIONS

An attorney will not attempt to prevent a court appointment to represent a person unless there is good cause, such as:

(a) impersonating a customer could result in a violation of the Code of Business Conduct or other laws;

(b) representing the client could impose an unreasonable financial burden on the attorney; any

(c) the client or matter is so distasteful to the attorney that it is likely to adversely affect the attorney-client relationship or the attorney's ability to represent the client.

Comment

[1] In principle, a lawyer is not obliged to accept a client whose character or concerns are repugnant to him. However, the lawyer's freedom in selecting clients is restricted. All attorneys have an obligation to assist in the provision of a free public service.verPR 6.1. An individual attorney discharges this responsibility by accepting a fair share of unpopular affairs or destitute or unpopular clients. An attorney may also be subject to a court appointment to serve unpopular clients or individuals who cannot afford legal services.

appointed lawyer

[2] For good cause, a lawyer may refuse to represent a person who cannot afford to hire a lawyer or whose concerns are unpopular. A good cause exists when the attorney has not been competent to handle the matter, see RPC 1.1, or where representation would create an inappropriate conflict of interest, for example where the client or the case is so distasteful to the attorney that it could hurt you - client relationship or the attorney's ability to represent the client. An attorney may also seek to decline an appointment when acceptance would impose an undue burden, such as imposing a financial sacrifice so great that it would be unfair.

[3] An appointed attorney has the same duties to the client as an employed attorney, including duties of loyalty and confidentiality, and is subject to the same limitations of the attorney-client relationship, such as: B. The obligation not to assist the client Violation of the rules.

LAST CROSS REFERENCES

"Aimed"verRPC 1,0 (m)

RULE 6.3: MEMBER OF A LEGAL SERVICE ORGANIZATION

An attorney may serve as a director, officer, or member of a legal services organization other than the law firm in which the attorney works, even if the organization serves individuals who have a negative interest in an attorney's client. However, the Advocate shall not knowingly participate in the decision or action of any organization:

(a) whether participation in the decision or action would be inconsistent with an Attorney's duties to a client under RPC 1.7; any

(b) when the decision or action could have a material adverse effect on the representation of a client of the Organization whose interests conflict with a client of the Counsel.

Comment

[1] Lawyers should be encouraged to support and participate in legal service organizations. An attorney who is an officer or member of such an organization therefore has no attorney-client relationship with the individuals that the organization serves. However, there is a potential conflict between the interests of these individuals and the interests of the attorney's clients. If the possibility of such a conflict were to bar a lawyer from serving on the board of a legal services organization, the profession's participation in such organizations would be severely limited.

[2] In appropriate cases, it may be necessary to provide assurances to a client of the organization that representation will not be compromised by a director's conflicting loyalties. Established and written policies in this regard can increase the credibility of such guarantees.

LAST CROSS REFERENCES

"deliberately"verRPC 1.0(f)
"Law firm"verRPC 1.0(c)
"Material"verRPC 1.0(o)

RULE 6.4: LEGAL REFORM ACTIVITIES THAT AFFECT CUSTOMERS' INTERESTS

An attorney may serve as a director, officer, or member of any organization involved in legislative reform or administration, regardless of whether the reform might adversely affect the interests of an attorney's client. If counsel determines that a client's interests may be materially served by a decision in which he is a party, counsel must disclose that fact but is not required to identify the client.

Comment

[1] Attorneys involved in organizations seeking legal reform generally do not have an attorney-client relationship with the organization. Otherwise, it can be assumed that an attorney would not be able to participate in a bar association legal reform program that could indirectly affect a client.also seeRPC 1.2(b). For example, an antitrust litigation attorney may be deemed unable to assist in the preparation of changes to the relevant regulations. In determining the nature and extent of involvement in such activities, an attorney must consider obligations to clients under other rules, particularly RPC 1.7. An attorney has a professional duty to protect the integrity of the program by making appropriate disclosures within the organization when the attorney knows that a private client may benefit significantly from it.

LAST CROSS REFERENCES

"He knows"verRPC 1.0(f)
"Essential"verRPC 1.0(o)

RULE 6.5: NO WINNINGS AND TIMETABLE FOR COURTS
RESTRICTED PROGRAMS FOR LEGAL SERVICES

(a) An attorney providing limited short-term legal services to a client under the auspices of a non-profit organization or court-sponsored program without the attorney or client expecting the attorney to provide ongoing representation on the matter:

(1) subject to RPCs 1.7 and 1.9(a) only if attorney knows that representing client involves a conflict of interest; j

(2) Subject to RPC 1.10 only if the attorney is aware that another attorney affiliated with him in a law firm is disqualified with respect to the matter under RPC 1.7 or 1.9(a).

(b) Except as provided in paragraph (a)(2), RPC 1.10 does not apply to benefits subject to this rule.

Comment

[1] Legal service organizations, courts, and various non-profit organizations have established programs through which attorneys provide limited, short-term legal services, such as counseling or filling out legal forms, to help people resolve their legal problems without additional representation. Through an Attorney In these programs, such as legal hotlines, counseling-only clinics, or pro se counseling programs, an attorney-client relationship is established, but legal representation of the client is not expected beyond limited counseling. These programs often work in circumstances where an attorney is not able to systematically assess conflicts of interest, as is generally required, before beginning representation.see for example, RPC 1.7, 1.9 und 1.10.

[2] An attorney providing limited short-term legal services under this rule must obtain the client's consent for the limited scope of representation. See RPC 1.2(c). When limited, short-term representation is inappropriate under the circumstances, counsel may offer advice to the client, but must also advise the client of the need for further counsel assistance. Except as otherwise provided in this rule, the ethics rules, including RPC 1.6 and 1.9(c), apply to limited representation.

[3] Because an attorney representing a client in circumstances covered by this Standard cannot normally review conflicts of interest systematically, paragraph (a) requires compliance with RPC 1.7 or 1.9(a) only if the attorney knows that representation poses a conflict of interest for counsel, and with RPC 1.10 only if counsel is aware that another counsel for the law firm is disqualified on the matter under RPC 1.7 or 1.9(a).

[4] Because the limited nature of the Services significantly reduces the risk of conflicts of interest with other matters being handled by the law firm, paragraph (b) states that RPC 1.10 does not apply to representation governed by this Standard, with Exception to the provisions of paragraph (a)(2). Paragraph (a)(2) requires the participating attorney to comply with RPC 1.10 if the attorney knows that the law firm is disqualified by RPC 1.7 or 1.9(a). However, as provided in paragraph (b), an attorney's participation in a short-term, limited legal services program shall not prevent the law firm from accepting or continuing to represent a client with interests conflicting with representing a client under the program. 🇧🇷 The personal exclusion of a lawyer participating in the program is not attributed to the other lawyers participating in the program.

[5] If, after initiating short-term limited representation under this provision, an attorney agrees to represent the client on an ongoing basis in the matter, RPCs 1.7, 1.9(a) and 1.10 will apply.

LAST CROSS REFERENCE

"He knows"verRPC 1.0(f)

CHAPTER 7

INFORMATION ABOUT LEGAL SERVICES

RULE 7.1: NOTICES REGARDING THE SERVICES OF AN ATTORNEY

(a) An Attorney shall not make false or misleading statements about the Attorney or the Attorney's services. A Notice is false or misleading if it contains a material misstatement of any fact or law, or omits any fact that is necessary for the Statement as a whole to be considered non-misleading.

(b) Subject to the requirements of paragraph (a) above and RPCs 7.3 and 7.6, an Attorney may promote Services through any written, recorded or electronic communication, including public media. All communications made under this Standard must include the name and contact information of at least one attorney or law firm responsible for the content.

(c) Advocate will keep a copy or record of each Advertisement for two years after its last transmission, together with a record of when and where the Advertisement was shown.

Comment

[1] This provision regulates all communication in connection with legal services. Whatever means are used to publicize the services of an attorney, statements about them must be truthful.

[2] True and misleading statements are also prohibited by this rule. A truthful statement is misleading when it omits a fact that is necessary for attorney's overall statement not to be considered materially misleading. A truthful statement is also misleading if there is a reasonable likelihood that it would lead a reasonable person to reach a particular conclusion about the attorney or the attorney's services for which there is no reasonable basis of fact.

[3] An advertisement that truthfully reports an attorney's accomplishments on behalf of clients or former clients may be misleading if presented in a manner that would cause a reasonable person to have an unreasonable expectation that the same results would be obtained for others clients can be reached. no reference. to the concrete factual and legal circumstances of the respective client case. Likewise, an unsubstantiated comparison of Attorney's services or fees to other Attorneys' services or fees may be misleading if so specific that a reasonable person would conclude that the comparison could be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a determination that a statement is likely to raise improper expectations or mislead the public.

[4] It is professional misconduct for an attorney to engage in conduct that involves dishonesty, fraud, deception or misrepresentation. RPC 8.4(c). See also RPC 8.4(e) for a prohibition on alleging or implying the ability to improperly influence a government agency or official or to obtain results that violate the professional rules or other laws.

[5] In order to help the public to learn about and obtain legal services, lawyers should be able to promote their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising implies an active search for clients, contrary to tradition that a lawyer should not seek clients. However, the public's need for information about legal services can be partially met through advertising. This need is especially acute for people of modest means who have not used legal services on a large scale. The interest in expanding public information about legal services must take precedence over considerations of tradition. However, advertising by lawyers carries the risk of misleading or exaggerated practices.

[6] This provision permits the public disclosure of information about an attorney's name or firm name, address, e-mail address, website, and telephone number; the types of services the attorney will provide; the basis on which attorneys' fees are determined, including pricing for specific services and payment and credit arrangements; foreign language skills of a lawyer; Names of references and, with your consent, names of regularly represented clients; and other information of which persons seeking legal assistance may become aware.

[7] Questions of effectiveness and taste in advertising are speculation and subjective judgement. Some jurisdictions have sweeping prohibitions against television and other forms of advertising, against advertising that goes beyond specific information about an attorney, or against "invalid" advertising. Television, the Internet and other forms of electronic communication are among the most powerful means of bringing information to the public today, particularly to those on low and middle incomes; A ban on television, the Internet and other forms of electronic advertising would therefore impede the flow of information about legal services to many sections of the public. Limiting the information that can be announced has a similar effect, meaning the bar can accurately predict what type of information the public would consider relevant.

[8] A lawyer may advertise that an organization has given him a characterization or subjective description, provided that the organization has assessed the suitability of the lawyer and does not give or give such designations arbitrarily or for remuneration. 🇧🇷

Subject/Specialization

[9] This rule allows a lawyer to indicate areas of practice in communication about the legal services. If a lawyer only works in certain areas or only takes on problems in a certain area or areas, the lawyer can indicate this. However, a lawyer may not state that the lawyer is an "expert", practices an "specialty", is "specialized" in a particular area of ​​law or that the lawyer has been recognized or certified as an expert in a particular area of ​​law, unless: the communication relates to matters of maritime or patent law or in accordance with paragraph [10] of this Commentary. Recognizing patent specialization is a longstanding policy of the Patent and Trademark Office. The practice of admiralty designation also has a long historical tradition associated with maritime commerce and federal courts.

[10] An attorney has authority to report that the attorney is, or has been certified or recognized as, a professional if the attorney has been certified or recognized by an organization accredited by the House of Delegates of the American Bar Association. However, before an attorney can declare that he is a specialist, Rule 21 of the Tennessee Supreme Court requires the attorney to first register the specialty certification with the Tennessee Commission on Continuing Legal Education. received special certification from the Tennessee Commission on Continuing Legal Education.

company name

[11] A firm may be referred to by the names of all or some of its members, by the names of deceased or retired members where there is continuous succession in the identity of the firm, or by a corporate name such as "ABC Clínica Jurídica". " An attorney or law firm may also be identified by a unique website address or comparable job title. Although the United States Supreme Court has ruled that laws may prohibit the use of trade names in professional practice, the use of such names in forbidden by legal practice acceptable so long as it is not misleading When a private company uses a trade name that includes a geographic name, such as "Springfield Legal Clinic," an express disclaimer may be required to avoid misleading implications The use of such names to designate advocacy offices has proven to be a useful means of identification, but it is misleading to use the name of a solicitor who is ni cht associated with the Firm or a predecessor of the Firm, or the name of a person who is not an attorney.

[12] It is not necessary to change the name or letterhead of a law firm when a member of the firm retires, for example, to serve as an elected member of the Tennessee General Assembly, provided the attorney reasonably expects to continue his practice will resume. active and regular practice with signature at the end of the legislative period. Such a break in practice is not for a significant period of time. However, if a lawyer were to step down and enter the public service for a longer or indefinite period, the firm would have to change its name and corporate name.

[13] For example, attorneys who share offices but are not actually affiliated with one another in a law firm are not allowed to refer to themselves as "Smith and Jones", as this title indicates that they engage in advocacy. in a company.

Ad Registration

[14] Paragraph (c) requires an attorney to keep a copy or record of an advertisement for two years after its last transmission, together with a record of when and where the advertisement was shown. Where advertisements that are similar in all material respects are posted or displayed more than once, or distributed to more than one person, counsel may meet this requirement by retaining a single copy of the advertisement for two years after the last substantially similar advertisement . they scattered. An attorney may meet the requirement of paragraph (c) by complying with guidelines that may be adopted by the Professional Responsibility Board with respect to certain types of advertising, including websites, email or other electronic forms of communication, or changes to such communications.

LAST CROSS REFERENCES

"Society" and "Registry"verRPC 1.0(c)
"Fraud"verRPC 1.0(d)
"Material" and "material"verRPC 1.0(o)
"Appropriate"verRPC 1.0 (h)
"substantially" and "substantially"verRPC 1,0 (l)
"Written"verRPC 1.0(n)

RULE 7.2

[Delete and reserve]

RULE 7.3: CUSTOMER REQUEST

request

(a) A solicitation is a directed communication initiated by or on behalf of an attorney, addressed to a specific person and offering legal services on a specific matter, or which could reasonably be understood as offering legal services.

(b) An Attorney shall not solicit by direct personal contact, nor permit associates or agents of the Attorney to solicit professional employment from a prospective client by personal contact on behalf of the Attorney if there is an important reason for the pecuniary advantage of the Attorney, unless the person contacted:

(1) is a lawyer;

(2) is a person who regularly uses the legal services offered by the Attorney for business purposes;

(3) corresponds to a court-ordered class action; any

(4) have a prior family, close personal, or professional relationship with the Attorney.

written Application

(c) Any written, recorded or electronic request made by or on behalf of an attorney seeking professional employment for a person known to be in need of legal services on a particular matter must include the words "Public Material" on the Outer envelope included, where appropriate. , and at the beginning and end of any recorded or electronic communication, unless the recipient of the communication is an individual referred to in paragraphs (b)(1)-(4). The subject matter of the proposed representation will not be disclosed on the outside of the envelope (or self-service booklet) in which the notice is served. Unless the content of the Content includes a job application, an Attorney need not include the words "marketing material" when sending association or affiliation advertisements, newsletters, brochures and other similar communications.

Order Restriction

(d) An attorney may not solicit professional employment from anyone who:

(1) the purpose of the posted request to wish not to be solicited by an attorney; any

(2) the request involves coercion, coercion, fraud, harassment, intimidation, abuse or undue influence; any

(3) an important reason for the request is for the pecuniary benefit of attorney and the notice relates to a claim for personal injury, divorce or legal separation, industrial injury, wrongful death or otherwise relating to an accident, petition for divorce or legal separation, or Disaster involving the person to whom the notice is directed or a family member of such person, unless the accident, filing for divorce or legal separation, or disaster occurred more than thirty (30) days prior the sending or transmission of the notice; or The Attorney previously had a close family, personal, or professional relationship with the wanted person.

Record keeping

(e) Attorney shall retain a copy of every written, audio, video or electronically transmitted communication sent to a recipient specified under this Rule for two years after the last disclosure, together with a record of when and to whom. she was sent.

Pay others to refer a lawyer

(f) A Solicitor shall not indemnify, give or promise anything of value to any person who is not an employee or solicitor of the same law firm, to recommend or secure the services of Solicitor or the Solicitor's Office, except that a solicitor may solicitor:
(1) pay reasonable charges for advertising and other communications permitted by RPC 7.1, including online group advertising;
(2) pay the usual fees of an intermediary organization in accordance with RPC 7.6;
(3) pay a law firm under RPC 1.17;
(4) pay a sponsorship or dues fee to a charity or other non-profit organization for which Attorney receives publicity as an attorney; j
(5) refer clients to another attorney or non-lawyer profession, pursuant to an agreement not otherwise prohibited by these Rules, which provides for the other person to refer clients or clients to attorney; Yes:
(i) the cross-referencing agreement is non-exclusive; j
(ii) the customer is informed of the existence and nature of the contract.

Comment.

request

[1] In general, a communication from a lawyer does not constitute a solicitation if it is addressed to the general public, for example via a billboard, internet banner, website or television spot, or if it is given in response to a request for information or is made automatically generated in response to internet searches.

[2] “Live person-to-person contact” means face-to-face, face-to-face, live telephone and other real-time visual or audio person-to-person communications in which the person is subject to personal contact encounter without time to think. This face-to-face contact does not include chat rooms, text messages, emails, or other written communications that recipients can easily ignore. The potential for abuse exists when a request involves an attorney's face-to-face contact with someone known to be in need of legal services. This form of contact subjects the person to the private toast of the trained lawyer in a direct interpersonal encounter. The person, who may already be feeling overwhelmed by the circumstances that gave rise to the need for legal services, may find it difficult to consider all available alternatives with sound judgment and self-interest commensurate with the attorney's presence and insistence on the engagement. fully assess. 🇧🇷 immediately. The situation is fraught with potential for undue influence, intimidation and abuse.

[3] The use of general advertising and written, recorded, or electronic communications to convey attorney information to the public rather than through face-to-face contact helps ensure the clean and free flow of information. The content of advertisements and communications permitted under RPC 7.1 may be permanently recorded so that they cannot be disputed and may be shared with others who know the attorney. This potential for informal verification is likely to help protect against statements and claims that could constitute false and misleading communications that violate RPC 7.1. The content of live personal communications may be contested and shall not be subject to third party verification. Consequently, they are much more likely to walk close to (and sometimes cross) the line between accurate representations and those that are false and misleading. All requests permitted by this rule must comply with RPC 7.1's prohibition against false and deceptive communications.

[4] An attorney is much less likely to engage in abusive practices towards a former client with whom he or she has a close personal or family relationship, or in situations where the attorney is motivated by considerations other than the attorney's financial advantage is motivated. There is also no serious potential for abuse if the person contacted is a lawyer or is known to regularly use the type of legal services for commercial purposes. Examples include people who routinely hire outside counsel to represent the company; Employers who regularly hire commercial, labor or intellectual property attorneys; Small business owners who regularly hire attorneys for rental or contract matters; and others who routinely hire attorneys for business transactions or formations. Consequently, the general prohibition in paragraph (b) and the requirements in paragraph (c) do not apply in these situations. In addition, paragraph (b) shall not prohibit an attorney from engaging in the constitutionally protected activities of nonprofit or public legal service organizations or political, social, civic, fraternal, employee, or corporate organizations recommending legal services. Services to its affiliates or beneficiaries.

[5] However, permitted forms of advertising can also be misused. Therefore, any request that contains false or misleading information as defined in RPC 7.1, that involves coercion, coercion or harassment as defined in paragraph (d)(2), or that involves contact with anyone who has identified an attorney is prohibited not wanting to be required to consult counsel within the meaning of paragraph (d)(1). If Attorney does not receive a response after sending a letter or other communication under RPC 7.1, any subsequent attempt to contact the recipient of the communication may violate the provisions of (d)(1).

[6] RPC 7.3(d)(3) prohibits any solicitation of a prospective client within thirty (30) days of the filing of a petition for divorce or legal separation involving that person if there is good cause to the petition there is a claim by the lawyer to pecuniary advantage. Some divorce or separation cases involve an alleged history of domestic violence or the potential for domestic violence. In such cases, the fact that the accused spouse receives a request for legal assistance before the complaint is served may increase the risk of a violent confrontation between the parties before the injunctions take effect.verTennessee-Ann Code. § 36-4-106(d) (2014) (imposition of specific restraining orders, including “[a] restraining order restraining either party from harassing, threatening, assaulting or abusing the other” effective occurs "[a] filing for divorce or legal separation,and prior personal service of the complaint and subpoena on the defendantor after the defendant waives and accepts the subpoena") (emphasis added). The prohibition in RPC 7.3(d)(3) against any filing within thirty (30) days of the filing for divorce or legal separation is intended to reduce this risk and in such cases, enable the requesting spouse to take the appropriate steps, steps to seek refuge, a protection order and/or other available remedies.

[7] Nothing in this Standard is intended to prohibit an attorney from contacting representatives of organizations or groups that may be interested in establishing a prepaid or group legal plan for their members, policyholders, beneficiaries or other third parties to inform those organizations. the availability and details of the plan or arrangement that the attorney or law firm is willing to provide. This form of communication is not intended for people seeking legal services for themselves. Rather, it is usually aimed at a person who is acting in a fiduciary capacity and wishes to provide legal services to others who, if they so choose, may become potential clients of the Attorney. In these circumstances, the act of counsel in communicating with those representatives and the nature of the information conveyed to the individual are functionally similar and serve the same purpose as the publicity permitted under RPC 7.1.

[8] The requirement in paragraph (c) that certain communications be identified as "marketing material" does not apply to communications sent in response to requests from potential clients or their speakers or sponsors. Nor do these requirements apply to advertisements for General Counsel, including changes in staffing or office location, newsletters, brochures and other similar communications that do not contain an application for professional employment from a client known to be in need of legal services. in terms of this rule.

[9] Paragraph (e) of this rule requires an attorney to retain a copy of any written, audio, video or electronically transmitted communication sent to a recipient specified under this rule for two years after its last disclosure, together with a record of the name of the person contacted and the address, telephone number or telecommunications address of the person to whom the notice was sent. Where notices of identical content are sent to two or more individuals, the Power of Attorney may comply with this requirement by retaining a single copy of the notice along with a list of the names and addresses of the individuals to whom the notices were sent.

Pay others to refer a lawyer

[10] Except as permitted in Sections (f)(1)-(5), Attorneys shall not pay others to recommend their services or perform professional work in a manner that violates RPC 7.1 and this Rule. A notice contains a recommendation as to whether it endorses or supports an attorney's credentials, ability, competence, character or other professional qualities. However, paragraph (f)(1) permits an attorney to pay for advertising and publicity permitted under RPC 7.1 and this Rule, including the cost of printed directory listings, online directory listings, newspaper advertisements, time television and radio antennas, domain name registrations , sponsorship fees, Internet-based advertising and group advertising. An attorney may indemnify employees, agents, and vendors involved in the delivery of marketing or customer development services such as attorney's professional judgment (see RPC 5.4(c)). Additionally, an attorney may pay a third party to generate client leads such as (Share of Fees) and 5.4 (Professional Independence of Attorney), the Primary Producer's Notices conform to RPC 7.1 (Notices Concerning Attorney's Services) and are subject to RPC 7.6 and Tenn. great Connecticut. R. 44 if the lead generator qualifies as an intermediary organization under RPC 7.6. To comply with RPC 7.1, an attorney may not pay a lead generator who claims, implies, or creates the reasonable impression that attorney recommends attorney, makes a recommendation without paying attorney, or discusses attorney's legal matters . determine which attorney should receive the referral. See also RPC 5.3 (Duties of Attorneys and Law Firms Regarding the Conduct of Non-Attorneys); RPC 8.4(a) (Duty to prevent breaches of the Rules by the actions of third parties).

[11] An Attorney may also agree to refer clients to another attorney or non-attorney in return for that person's obligation to refer clients or clients to Attorney. These cross-referencing agreements shall not affect the attorney's professional judgment in providing references or the provision of substantive legal services. See RPC 2.1 and 5.4(c). Except as provided in RPC 1.5(e), an Attorney receiving referrals from a solicitor or non-legal profession is not required to pay anything for the referral alone, but the Solicitor does not breach paragraph (f) of this Rule by he accepts the placement of clients to another lawyer or non-lawyer, provided the mutual placement agreement is not exclusive and the client is informed of the placement agreement. Conflicts of interest arising from such agreements are governed by RPC 1.7. Cross-referencing agreements must not be of indefinite duration and must be reviewed periodically to determine if they comply with these rules. This rule does not restrict remittances or divisions of income or net income between attorneys in multi-entity firms.

LAST CROSS REFERENCES

"Fraud"verRPC 1.0(d)
"Knowledge"verRPC 1.0(f)
"Written"verRPC 1.0(n)

RULE 7.4:

[Deleted and reserved.]

RULE 7.5

[Deleted and reserved.]

RULE 7.6: INTERMEDIATE ORGANIZATIONS

(a) An intermediary organization is a lawyer recruiting cooperative, lawyer placement service, lawyer locator, online marketing platform, prepaid legal expenses insurer or similar organization engaged in the placement of consumers of legal services for lawyers or facilitating the establishment thereof. -Client relationships between consumers of legal services and attorneys willing to provide assistance for which the organization bears no ultimate responsibility. A court that appoints or designates counsel to represent parties in court, or a governmental agency that performs such functions on behalf of a court, is not an intermediary organization for the purpose of this rule.

(b) Before and during participation in an intermediary organization, a Tennessee attorney must be licensed and in good standing to practice law and make reasonable efforts to ensure that the conduct of the intermediary organization is consistent with the attorney's professional duties, including the following conditions :

(1) The intermediary organization does not direct or regulate the attorney's professional judgment in providing legal services to the client;
(2) The intermediary organization, including its agents and employees, will not engage in any improper advertising prohibited by RPC 7.3;
(3) The intermediary organization shall provide prospective clients with the admission criteria, including payments made or arranged by the lawyers participating in the service and fees charged to the client for the use of the service at the beginning of the client relationship. interaction with the intermediary organization;
(4) The function of the mediation contract between the lawyer and the mediation organization is disclosed to the client in detail at the beginning of the client's cooperation with the lawyer;
(5) The placement organization shall not charge the attorney more than a reasonable amount representing a pro rata portion of the organization's administrative and advertising expenses, or, in the case of a non-profit placement organization, a placement fee calculated with indication of a reasonable percentage of the Attorney fees paid by the client who is referred to the attorney by the intermediary non-profit organization:
(6) The Intermediary Organization is not owned, controlled or directed by Counsel, any law firm with which Counsel is affiliated or any counsel with which Counsel is affiliated at a law firm; j

(c) If an Attorney discovers a breach by the Intermediary Organization of the Attorney's professional duties or of any of the requirements in paragraph (b), the Attorney shall withdraw from participation or attempt to remedy the breach. If the mediating organization does not correct the violation, the authorized representative must withdraw from participation.

Comment

[1] For there to be equal access to justice, there must be equal access to lawyers. For equal access to lawyers, prospective clients must be able to find lawyers and have the financial means to pay them reasonable fees for their services. To help potential clients find and retain competent attorneys, attorneys and non-attorneys have formed a variety of organizations that aim to bring clients and attorneys together and provide a means by which client attorneys can be fairly remunerated and clients paid for the services you need. Some of these intermediaries operate as charities. Others act as corporations. Liability insurers who pay or provide lawyers to defend their policyholders are not intermediary organizations for the purposes of this provision as they are ultimately liable for their policyholders. Likewise, the process by which courts or judicial authorities appoint or appoint attorneys to represent parties must have appropriate safeguards outside of this Standard, and such activities are also exempt from this Standard.

[2] The requirements of subparagraph b) are intended to protect clients represented by lawyers to whom they have been referred or appointed by an intermediary organisation. Any Attorney participating in the activities of an Intermediary Organization is responsible for using reasonable efforts to ensure that the conduct of the organization is consistent with the Attorney's professional duties, including the conditions set out in paragraph (b). If an attorney discovers that an intermediary is operating in any of the ways prohibited in paragraph (b), the attorney should not communicate with the intermediary. If an Advocate is already affiliated with an Intermediary Organization when it becomes aware of the non-compliance, the Advocate must terminate the Advocate's association with the Intermediary Organization or ask the Intermediary Organization to rectify the non-compliance to allow the Advocate's continued participation .

LAST CROSS REFERENCES

"company" and "firm"verRPC 1.0(c)
"He knows"verRPC 1.0(f)
"I should reasonably know"verRPC 1.0(j)

RULE 8.1: ADMISSION AND DISCIPLINE MATTERS

An applicant for admission to the Bar or a lawyer in connection with an application for admission to the Bar or in connection with a disciplinary matter shall not:

(a) knowingly misrepresent a material fact; any

(b) fails to disclose any fact necessary to correct a misunderstanding the person knows has arisen about the matter or knowingly fails to respond to a lawful request for information from a regulatory or disciplinary authority, unless: disclosure is not required under this rule is otherwise protected by RPC 1.6.

Comment

[1] The obligation of this standard extends to applicants for admission to the Bar and to lawyers. Thus, if an individual makes material misrepresentations in connection with an application for admission, this may be the basis for subsequent disciplinary action if the individual is admitted and in any event may be relevant to a subsequent application for admission. The duty imposed by this rule applies to the admission or disciplining of the attorney himself as well as others. Therefore, it is a professional offense in its own right for a lawyer to knowingly misrepresent the lawyer's own conduct, or to refrain from doing so, in connection with a disciplinary investigation. Paragraph (b) of this Rule also requires the correction of any previous inaccurate statements made by the applicant or counsel on the matter and the affirmative clarification by the regulatory or disciplinary authority of any misunderstandings of which the individual concerned is aware.

[2] This rule is governed by the provisions of the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. However, a person who invokes such a provision in answer to a question must do so openly and not use the right to confidentiality as an excuse for failure to comply with this rule.

[3] An attorney representing a candidate for admission to the Bar or representing an attorney who is the subject of an investigation or disciplinary proceeding is subject to the rules governing the attorney-client relationship, including RPC 1.6 and, in some cases RPC 3.3.

[4] The lawyers' obligations regarding communication with the disciplinary authorities apply to both the judicial disciplinary authorities and the legal disciplinary authorities.

LAST CROSS REFERENCES

"aware" or "known"verRPC 1.0(f)
"Material"verRPC 1.0(o)

RULE 8.2: JUDICIAL AND LEGAL OFFICIALS

(a) An attorney shall not make any statement which he knows to be false or which is made in reckless disregard of its truth or falsity as to the qualification or integrity of any of the following:

(1) a judge;

(2) an issuing officer or public officer; O

(3) a candidate for election or appointment to a judicial or barrister office.

(b) The barrister applying for judicial office must comply with the applicable provisions of the Code of Judicial Conduct.

Comment

[1] Attorney ratings are based on assessments of the professional or personal suitability of persons eligible for election or appointment to judicial and public law offices, such as attorney general, prosecutor and public defender. Expressing an honest and open opinion on such matters helps improve the administration of justice. On the other hand, misrepresentation by a lawyer can unduly undermine public confidence in the administration of justice.

[2] When a prosecutor seeks judicial office, the prosecutor is subject to the applicable restrictions on political activity.

[3] To uphold the fair and independent administration of justice, barristers are encouraged to continue their traditional efforts to defend judges and courts unfairly criticized and to speak responsibly when necessary to prevent or correct injustices or make necessary improvements in the law promote the justice system.

LAST CROSS REFERENCES

"He knows"verRPC 1.0(f)

RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT

(a) An Attorney who learns that another Attorney has committed a breach of professional ethics which raises serious doubts as to the honesty, good faith or fitness in any other respect of that Attorney shall inform the Disciplinary Committee of the Board. of professional responsibility.

(b) An attorney who is aware that a judge has committed a breach of the applicable rules of the Code of Judicial Conduct which raises a material question as to the judge's suitability for office shall notify the Disciplinary Committee of the Committee on the Code of Judges' Conduct.

(c) This rule does not require disclosure of information protected by RPC 1.6 or information obtained from an attorney or judge while serving as a member of a legal aid program approved by the Supreme Court of Tennessee or the Council on Professional Responsibility was.

Comment

[1] The self-regulation of the legal profession obliges members of the profession to initiate disciplinary proceedings if they become aware of a violation of the professional code. Lawyers have a similar obligation in relation to court misconduct. A seemingly isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a rape is especially important when the victim is unlikely to discover the crime.

[2] A misconduct report is not required for an RPC 1.6 violation. However, an attorney should encourage a client to consent to disclosure if the criminal activity does not materially harm the client's interests.

[3] If an attorney were required to report all violations of the Rules, failure to report a violation would itself be a professional misdemeanor. This requirement existed in many jurisdictions but was found to be unenforceable. This rule limits reporting requirements to crimes that a self-regulatory profession must work diligently to prevent. Therefore, precautions are required to comply with the provisions of this standard. The term "substantial" refers to the seriousness of the possible crime and not to the amount of evidence known to the attorney. Similar considerations apply to reporting judicial misconduct.

[4] The obligation to notify does not apply to a lawyer commissioned to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules governing the attorney-client relationship.

[5] Information regarding the misconduct or suitability of an attorney or judge may be obtained from an attorney or judge during that attorney or judge's participation in an accredited attorney or judge assistance program. In these circumstances, the provision of an exemption from the reporting requirements in paragraphs (a) and (b) of this Rule encourages attorneys and judges to seek treatment through such a program. On the other hand, lawyers and judges, without exception, may be reluctant to seek help from these programs, which can add to the harm to their careers and the well-being of their clients and the public. The extent to which information obtained by an attorney or judge participating in an accredited legal aid program must be kept confidential is governed not by these rules but by the program rules or other laws.see for example, Ten. 🇧🇷 Ana code. seconds. 23-4-104 and -105; Ten. And since. Connecticut. R 33.10.

LAST CROSS REFERENCES

"significant"verRPC 1,0 (l)

RULE 8.4: MISCONDUCT

It constitutes professional misconduct for a lawyer to:

(a) violates the Code of Business Conduct or attempts to do so, knowingly assists or induces others to do so, or does so through the actions of another;

(b) commit a criminal offense which adversely affects the honesty, good reputation or reputation of Attorney in any other respect;

(c) engage in conduct that involves dishonesty, fraud, deception or misrepresentation;

(d) behavior detrimental to the administration of justice;

(e) state or imply the ability to influence any court or governmental agency or official for reasons beyond the merits or procedures governing the matter in question;

(f) knowingly assisting a judge or court official in conduct that violates any applicable court code of conduct or other law; any

(g) knowingly violates a valid court order made in any proceeding in which Counsel is a party, unless Counsel is unable to comply with the order or is attempting in good faith to determine the validity, scope , to determine the meaning or application of the law to which the order is based.

Comment

[1] Attorneys are subject to disciplinary action if they violate the Code of Conduct or attempt to do so, knowingly assisting or inducing others to do so, or do so through the actions of another, such as on behalf of the attorney. However, paragraph (a) does not prohibit an attorney from advising a client on the acts to which the client is authorized by law.

[2] Many types of unlawful conduct negatively affect fitness to exercise the right, such as: B. Fraud and willful failure to file a tax return. However, some types of crimes have no such implication. Traditionally, the distinction has been made in relation to offenses related to "moral faults". This term can be construed to include offenses relating to some matters of personal morality, such as adultery and similar offenses that have no specific connection with fitness to practice law. While a barrister is personally responsible for all criminal law, a barrister should be professionally responsible only for offenses that indicate the absence of characteristics relevant to legal practice. This category includes crimes involving violence, dishonesty, breach of trust or serious interference with the administration of justice. While in certain circumstances a single offense affecting a lawyer's ability to practice law, such as B. a minor assault, may not be serious enough to warrant disciplinary action, a pattern of repeated offenses, even if individually minor, may indicate indifference to legal obligation.

[3] An attorney who knowingly expresses, through words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status in the course of representing a client violates subsection d . ) if such acts are detrimental to the administration of justice. Self-defense that respects the above factors does not violate paragraph (d).

[4] An attorney may decline to perform any obligation imposed by law if he has a good faith belief that there is no valid obligation. The provisions of RPC 1.2(d) relating to a good faith challenge to the validity, scope, meaning or application of the statute shall apply to challenges to the statutory rule of practice.

[5] Paragraph (c) prohibits Attorneys from engaging in conduct involving dishonesty, fraud, deception or misrepresentation. Such behavior adversely affects the Attorney's suitability for the practice of law. However, in certain circumstances, prosecutors are empowered by law to use investigative techniques, or direct investigating officers to use investigative techniques that may be considered misleading. This rule does not prohibit such behavior.

[6] Legal confidentiality or the secret recording of the conversations or actions of others for the purpose of gathering or preserving evidence does not in itself constitute fraudulent or dishonest conduct.verPR 4.4.

[7] Lawyers who hold public office have legal responsibilities beyond those of other citizens. Abuse of public office by a lawyer may indicate an inability to fulfill the professional role of a lawyer. The same applies to misuse of a private trust position as trustee, executor, trustee, guardian, agent and officer, director or manager of any corporation or other organization.

[8] Paragraph (f) prohibits an attorney from assisting a judge or court official in conduct contrary to the rules of judicial conduct. For example, an attorney may not make a gift, bequest, favor, or loan to a judge or to a family member of the judge who resides in the judge's home unless the judge has permission to accept or consent to the acceptance of that gift. Favor, bequest or loan in accordance with RJC 3.13 of the Judicial Code of Conduct.

[9] Lawyers have special obligations to respect the law and legal institutions in their professional and personal activities. Typically, a lawyer who knowingly violates a court order demonstrates a lack of respect for the law that is detrimental to the administration of justice. However, failure to comply with a court order does not constitute a disciplinary offense if it does not constitute a violation of the law, either because counsel is unable to comply with the order or because of a good faith attempt to determine the validity, scope, meaning, or application of the Right underlying the arrangement.

LAST CROSS REFERENCES

"Fraud"verRPC 1.0(d)
"deliberately"verRPC 1.0(f)
"Aimed"verRPC 1,0 (m)

RULE 8.5: DISCIPLINARY BODY; CHOICE OF LAW

(a) Disciplinary Authority. An attorney licensed in that jurisdiction is subject to the disciplinary powers of that jurisdiction regardless of where the attorney's conduct takes place. An attorney not licensed in that jurisdiction is also subject to the disciplinary authority of that jurisdiction if the attorney is providing or offering to provide legal services in that jurisdiction. An attorney may be subject to disciplinary powers in that jurisdiction and in another jurisdiction for the same conduct.

(b) Choice of Law. In exercising the disciplinary powers of that jurisdiction, the following professional rules shall apply:

(1) for conduct relating to a matter pending before a court, the rules of the jurisdiction in which the court is located, unless the court rules provide otherwise; j

(2) Any other conduct shall be governed by the rules of the jurisdiction in which the Attorney's conduct took place or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction on the conduct.

Comment

disciplinary authority

[1] It has long been established law that the conduct of a barrister licensed in that jurisdiction is subject to the disciplinary authority of that jurisdiction. Extending the disciplinary powers of that jurisdiction to other attorneys providing or offering legal services in that jurisdiction is to protect the citizens of that jurisdiction. The reciprocal application of a jurisdiction's determinations and disciplinary measures will further advance the purposes of this Rule.verOn here. great Connecticut. R. 9, § 8 ("Place of Jurisdiction") and § 25 ("Mutual Discipline").

choice of law

[2] A lawyer may be subject to more than one professional code imposing different duties. The barrister may be admitted in more than one jurisdiction with different rules or be admitted before a particular court with rules different from those of the jurisdiction or jurisdictions in which the barrister is admitted. In addition, attorney conduct may involve significant contacts with more than one jurisdiction.

[3] Paragraph (b) attempts to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules apply, is in the best interests of clients and the profession (and the bodies empowered to regulate the profession). Consequently, its approach is to (1) establish that any particular conduct by an attorney is governed by a single code of professional conduct, and (2) determine as simply as possible which code applies to any particular conduct. possible, consistent with the recognition of the relevant regulatory interests of the respective jurisdictions.

[4] Paragraph (b)(1) provides that in relation to the conduct of a solicitor in connection with any proceeding pending before a court, the solicitor shall be subject only to the rules of the jurisdiction in which the court is situated, unless: the court rules, including the choice of law rule, provide otherwise. For any other conduct, including conduct in anticipation of any pending proceeding, paragraph (b)(2) provides that an attorney is subject to the rules of the jurisdiction in which the attorney's conduct took place or, if the predominant effect of the conduct taking place in another jurisdiction, the rules of that jurisdiction shall apply to the conduct. In the case of conduct before a proceeding that is likely to take place in court, the primary effect of that conduct may be where it occurred, where the court is located, or in another jurisdiction.

[5] When two admissions courts are prosecuting an attorney for the same conduct, they must, in applying this rule, identify the same deontological rules to which they are subject. They must take all appropriate steps to ensure they apply the same rule to the same conduct and, at all costs, must avoid suing an attorney based on two conflicting rules.

[6] The choice of law clause applies to cross-border lawyers, unless international law, treaties or other agreements between competent supervisory authorities in the jurisdictions concerned provide otherwise.

LAST CROSS REFERENCES

"Aimed"verRPC 1,0 (m)

[The policy was superseded in its entirety by an order filed on September 29, 2010 effective January 1, 2011 and applies only prospectively to all existing relationships and conduct as of that date. However, the allocation of fees between attorneys who are not part of the same law firm provisions in RPC 1.5(e) and the non-refundable fee arrangement provisions in PRC 1.5(f) apply not only to contracts entered into or modified on or after January 1, 2018. January 2011. Amended by resolution registered February 27, 2013. Amended by resolution registered December 16, 2014. Amended by resolution registered August 18, 2014. Amended by resolution registered February 12 and 19, 2015 Amended by resolution filed December 21, 2015 and effective January 1, 2016. Amended by resolution filed October 4, 2016. Amended by resolution filed October 6, 2016. March 1, 2017. Amended by resolution filed on June 5th. 2020. Amended by order filed September 1, 2021. December 2021. January 12, 2022. Amended by order filed May 12, 2022, effective May 12, 2022. Amended by order filed November 15, 2022]

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