(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless both the disqualified lawyer and the lawyers representing the client in the matter have complied with the requirements set forth in RPC 1.11(b)(1), (b)(2), and (b)(3) and have advised the appropriate tribunal in writing of the circumstances that warranted the utilization of the screening procedures required by this Rule and the actions that have been taken to comply with this Rule. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules. [7] The Supreme Court has set forth in Rule 31 rules and standards of professional conduct applicable to all Rule 31 neutrals, including lawyers and nonlawyers. A lawyer should also aid in securing their observance by other lawyers. Paragraph (d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. See also RPC 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); RPC 8.4(a) (duty to avoid violating the Rules through the acts of another). [2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. In some circumstances, however, prosecutors are authorized by law to use, or to direct investigative agents to use, investigative techniques that might be regarded as deceitful. See, e.g., Tenn. Sup. [13] Further, paragraph (e)(2) provides that, even though the participants to a concluded dispute resolution proceeding were not the clients of the lawyer who served as a dispute resolution neutral in that proceeding, these participants are nevertheless entitled to the protections relating to confidentiality and conflicts of interest afforded by RPCs 1.6, 1.8(b), and 1.9 as if they were former clients. (d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing, or under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or. Likewise, the ethical duty of a lawyer serving as a dispute resolution neutral to report unethical conduct in a dispute resolution proceeding by a lawyer for a participant is limited by RPC 8.3(c). [4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. Thus, a lawyer related to another lawyer (e.g., as parent, child, sibling or spouse) ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. "Firm" and "law firm" See RPC 1.0(c)"Partner" See RPC 1.0(g)"Reasonable" See RPC 1.0(h), RULE 5.5: UNAUTHORIZED PRACTICE OF LAW;MULTIJURISDICTIONAL PRACTICE OF LAW. [7] Directly adverse conflicts can also arise in transactional matters. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client. It is not a justification that similar conduct is often tolerated by the bench and bar. [4] A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer's legal practice. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under RPC 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly RPC 1.7. The disqualification of lawyers associated in a firm with a lawyer disqualified from a matter as a result of obligations under RPC 1.18 flowing from a consultation with a prospective client is governed by RPC 1.18(d). If the lawyer individually or with others has control of such an entity's operations, the Rule requires the lawyer to take reasonable measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Rules of Professional Conduct that relate to the client-lawyer relationship do not apply. (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by PCs 1.7, 1.9 or 2.2, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. If the prospective client wishes to retain the lawyer, and if consent is possible under RPC 1.7, then consent from all affected present clients must be obtained before accepting the representation. [22] Paragraph (h) provides that a lawyer or law firm may not employ or continue the employment of a disbarred or suspended lawyer as an attorney, legal consultant, law clerk, paralegal or in any other position of a quasi-legal nature. (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client, unless the client gives informed consent, except as permitted or required by these Rules. (o) "Material" or "materially" denotes something that a reasonable person would consider important in assessing or determining how to act in a matter. 12.02. Such a situation is governed by the Rules applicable to the client-lawyer relationship. Although the Court's analysis in Thomas was based on an earlier version of Rule 8 (i.e., the Code of Professional Responsibility), the foregoing principles quoted from Thomas remain valid in the context of RPC 3.5. [2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. (e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's representation of an existing client in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. [7] If effectuation of a substantial gift requires preparing a legal instrument, such as a will or conveyance, the client should have the detached advice that another lawyer can provide. [9] There are times when the organization's interest may be or become adverse to the interest of one or more of its constituents. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client. "Knows" and "knowingly" See RPC 1.0(f)"Reasonably should know" See RPC 1.0(j)"Substantial" See RPC 1.0(l)"Written" See RPC 1.0(n), LAW FIRMS, LEGAL DEPARTMENTS, AND LEGALSERVICE ORGANIZATIONS, RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS,AND SUPERVISORY LAWYERS. Were a lawyer to be prohibited from communicating after trial with a juror, he [or she] could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected." The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. Such reciprocal referral arrangements must not interfere with the lawyers professional judgment as to making referrals or as to providing substantive legal services. If communications identical in content are sent to two or more persons, the lawyer may comply with this requirement by retaining a single copy of the communication together with a list of the names and addresses of the persons to whom the communications were sent. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. At the same time, our legal system and profession cannot permit lawyers to assist clients who refuse to follow their advice and insist on consummating an ongoing fraud. See also RPCs 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (authorized practice of law). [14] Because of the obligations of a lawyer serving as an intermediary to the intermediation clients, the lawyer must withdraw from the representation if any of the intermediation clients so requests; if one or more of the clients denies the lawyer the authority to disclose certain information to any of the remaining clients, thereby preventing the lawyer from being able to discharge the lawyer's duties to the remaining clients to communicate with them and disclose information to them; or if any of the various predicate requirements for intermediation can no longer be satisfied. [11] A lawyer also may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. [20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. [2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Given these and other relevant factors, each client may prefer to have one lawyer act as an intermediary for all rather than hiring a separate lawyer to serve as his or her partisan. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. (c) Information relating to the representation of a client with diminished capacity is protected by RPC 1.6. This would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and witness because the lawyer's disqualification would work a substantial hardship on the client. Ct. R. 33.10. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. See RPC 1.16(a)(3). Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. [3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. See RPC 1.0(k) and comment [8]-[10] (requirements for screening procedures). This does not mean, however, that constituents of an organizational client are the clients of the lawyer. See RPC 6.1. Under some circumstances, however, the terms of the evaluation may be limited. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. [12] If approval of the substitution of the purchasing lawyer for the selling lawyer is required by the rules of any tribunal in which a matter is pending, such approval must be obtained before the matter can be included in the sale. [6] The Rule requires that the seller's entire practice, or an entire subject-area of practice, be sold. Paragraph (b)(6) also does not affect the disclosure of information within a law firm when the disclosure is otherwise authorized, see Comment [5], such as when a lawyer in a firm discloses information to another lawyer in the same firm to detect and resolve conflicts of interest that could arise in connection with undertaking a new representation. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. Under paragraph (c)(2), a lawyer does not violate this Rule when the lawyer appears before a tribunal or agency pursuant to such authority. (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. A lawyer may not, however, justify adverse use or disclosure of client information simply because the information has become known to third persons, if it is not otherwise generally known. In such proceedings, the lawyer is of course bound by the duty of candor in RPC 3.3(a)(3). Other rules of conduct govern a lawyer's service as a dispute resolution neutral. (m) "Tribunal" denotes a court (including a special master, referee, judicial commissioner, or other similar judicial official presiding over a court proceeding), an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity. See, e.g., RPCs 1.1, 1.8, and 5.6. (1) When more than one claim for relief is present in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court, whether at law or in equity, may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determinat. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation's lawyer when conflicts of interest arise. The duties defined in this Comment apply equally to unincorporated associations. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require. "Confirmed in writing" See RPC 1.0(b)"Firm" See RPC 1.0(c)"Informed consent" See RPC 1.0(e)"Materially" See RPC 1.0(o)"Reasonable" and "reasonably" See RPC 1.0(h)"Reasonably believes" See RPC 1.0(i). The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. Except as provided in this Rule, the Rules of Professional Conduct, including RPCs 1.6 and 1.9(c), are applicable to the limited representation. The fact that in exceptional situations the lawyer under the Rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges. (g) knowingly fail to comply with a final court order entered in a proceeding in which the lawyer is a party, unless the lawyer is unable to comply with the order or is seeking in good faith to determine the validity, scope, meaning, or application of the law upon which the order is based. In those circumstances, RPC 1.7 governs who should represent the directors and the organization. [9] The "appearance of impropriety" standard existing under the Code of Professional Responsibility has not been retained in these rules.
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