CANON 1.
A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal
Profession.
DR 1-101. Maintaining Integrity and Competence of the Legal Profession.
DR 1-103. Obligation to Report Misconduct.
CANON 2.
A Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make Legal
Counsel Available and Should Render Pro Bono Publico Legal Services.
DR 2-101. Publicity and Advertising.
DR 2-102. Professional Notices, Letterheads, Offices, and Law Lists.
DR 2-103. Recommendation or Solicitation of Professional Employment.
DR 2-104. Specialists; Limitation of Practice.
DR 2-106. Agreements Restricting the Practice of a Lawyer.
DR 2-107. Acceptance of Employment.
DR 2-108. Terminating Representation.
CANON 3.
A Lawyer Should Assist in Preventing the Unauthorized Practice of Law.
DR 3-101. Aiding Unauthorized Practice of Law.
DR 3-102. Dividing Legal Fees with a Non-lawyer.
DR 3-103. Forming a Partnership with a Nonlawyer.
DR 3-104. Nonlawyer Personnel.
CANON 4.
A Lawyer Should Preserve the Confidences and Secrets of a Client.
DR 4-101. Preservation of Confidences and Secrets of a Client.
CANON 5.
A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client.
DR 5-102. Withdrawal as Counsel When the Lawyer Becomes a Witness.
DR 5-103. Avoiding Acquisition of Interest in Litigation.
DR 5-104. Limiting Business Relations with a Client.
DR 5-106. Avoiding Influence by Others Than the Client.
DR 5-107. Settling Similar Claims of Clients.
CANON 6.
A Lawyer Should Represent a Client Competently.
DR 6-101. Competence and Promptness.
DR 6-102. Limiting Liability to Client.
CANON 7.
A Lawyer Should Represent a Client Zealously Within the Bounds of the Law
DR 7-101. Representing a Client Zealously.
DR 7-102. Representing a Client Within the Bounds of the Law.
DR 7-103. Communicating with One of Adverse Interest.
DR 7-104. Threatening Criminal Prosecution.
DR 7-107. Communication with or Investigation of Jurors.
DR 7-108. Contact with Witnesses.
DR 7-109. Contact with Officials.
CANON 8.
A Lawyer Should Assist in Improving the Legal System.
DR 8-101. Action as a Public Official.
DR 8-102. Special Responsibilities of a Prosecutor or Government Lawyer.
CANON 9.
A Lawyer Should Avoid Even the Appearance of Professional Impropriety.
DR 9-101. Avoiding Even the Appearance of Impropriety.
DR 9-102. Preserving Identity of Funds and Property of a Client.
DR 9-103.
Record Keeping Requirements.
The Virginia Code of Professional Responsibility consists of three separate
but interrelated parts: Canons, Disciplinary Rules, and Ethical Considerations.
The Canons are statements of axiomatic norms, expressing in general terms the
standards of professional conduct expected of lawyers in their relationships
with the public, with the legal system, and with the legal profession. They
embody the general concepts from which the Disciplinary Rules and the Ethical
Considerations are derived.
The Disciplinary Rules, unlike the Canons and Ethical Considerations, are mandatory
in character, as stated in DR 1-102(A)(1). The Disciplinary Rules state the
minimum level of conduct below which no lawyer can fall without being subject
to disciplinary action. Within the framework of fair trial, the Disciplinary
Rules should be uniformly applied to all lawyers, regardless of the nature of
their professional activities.
The Ethical Considerations are aspirational in character and represent the objectives
toward which every member of the profession should strive. They constitute a
body of principles upon which the lawyer can rely for guidance in many specific
situations.
As used in the Disciplinary Rules of the Code of Professional Responsibility:
(1) "Differing interests" include every interest that will adversely
affect either the judgment or the loyalty of a lawyer to a client, whether it
be a conflicting, inconsistent, diverse, or other interest.
(2) "Law firm" includes a professional legal corporation.
(3) "Person" includes a
corporation, an association, a trust, a partnership, and any other organization
or legal entity.
(4) "Professional legal corporation" means a corporation, or an association
treated as a corporation, authorized by law to practice law for profit.
(5) "State" includes the District of Columbia, Puerto Rico, and other
federal territories and possessions.
(6) "Tribunal" includes all courts and all other adjudicatory bodies.
(7) "A Bar Association" includes a bar association of specialists
as referred to in DR 2-104(A)(1) or (2).
(8) "Qualified legal assistance organization" means a legal aid, public
defender, or military assistance office; a lawyer referral service; or a bona
fide organization that recommends, furnishes or pays for legal services to its
members or beneficiaries.
(9) Reference herein to the masculine is intended to include the feminine.
CANON 1.
A Lawyer Should Assist
in Maintaining the Integrity and Competence of the Legal Profession.
DISCIPLINARY RULES.
DR 1-101. Maintaining Integrity and Competence of
the Legal Profession.
(A) A lawyer is subject to discipline if he has made a materially false statement
in, or if he has deliberately failed to disclose a material fact requested in
connection with, his or another's application for admission to the bar.
(B) A lawyer is subject to discipline if he has made a materially false statement
in any certification required to be filed as a condition of maintaining or renewing
his license to practice law.
DR 1-102. Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule or knowingly aid another to do so.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Commit a crime or other deliberately wrongful act that reflects adversely
on the lawyer's fitness to practice law.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
which reflects adversely on a lawyer's fitness to practice law.
(B) A lawyer admitted to practice in this jurisdiction is subject to these Disciplinary
Rules although engaged in practice elsewhere, unless Disciplinary Rules of the
foreign jurisdiction permit the activity.
DR 1-103. Obligation to Report Misconduct.
(A) A lawyer having information indicating that another lawyer has committed
a violation of the Disciplinary Rules that raises a substantial question as
to that lawyer's honesty, trustworthiness, or fitness to practice law in other
respects, shall report such information to the appropriate professional authority,
except as provided in DR 4-101.
(B) Anything in paragraph (A) of this rule to the contrary notwithstanding,
any lawyer in the performance of authorized activities under the auspices of
the Lawyers Helping Lawyers Program, or the Virginia Bar Association's Committee
on Substance Abuse (the "Committee") which administers the Lawyers
Helping Lawyers Program, shall not be considered to have violated any Disciplinary
Rule or Ethical Consideration of the Virginia Code of Professional Responsibility
including, without limitation, DR 1-102, DR 1-103, EC 1-1 and EC 1-4, by reason
of his failure and/or refusal to disclose any investigating, counselling, or
intervening with a lawyer for possible substance abuse pursuant to the guidelines
of the Lawyers Helping Lawyers Program, and for the purposes of this paragraph,
DR 4-101 shall apply to the preservation by any such lawyer of the confidences
and secrets of any other lawyer learned while performing such duties to the
same extent that DR 4-101 applies to the confidences and secrets of a lawyer's
client.
ETHICAL CONSIDERATIONS.
EC 1-1. A basic tenet of the professional responsibility of lawyers is that
every person in our society should have ready access to the independent professional
services of a lawyer of integrity and competence. Maintaining the integrity
and improving the competence of the bar to meet the highest standards is the
ethical responsibility of every lawyer.
EC 1-2. The public should be protected from those who are not qualified to be
lawyers by reason of a deficiency in education, ethical standards or of other
factors which reflect adversely on an attorney's fitness to practice law. To
assure the maintenance of high ethical and educational standards of the legal
profession, lawyers should affirmatively assist courts and other appropriate
bodies in promulgating, enforcing, and improving requirements for admission
to the bar. In like manner, the bar has a positive obligation to aid in the
continued improvement of all phases of pre-admission and post-admission legal
education.
EC 1-3. Before recommending an applicant for admission, a lawyer should satisfy
himself that the applicant is of good ethical character. Although a lawyer should
not become a self-appointed investigator or judge of applicants for admission,
he should report to proper officials all unfavorable information he possesses
relating to the character or other qualifications of an applicant.
EC 1-4. The integrity of the profession can be maintained only if conduct of
lawyers in violation of the Disciplinary Rules is brought to the attention of
the proper officials. A lawyer should reveal voluntarily to those officials
all unprivileged knowledge of conduct of lawyers which he believes clearly to
be in violation of the Disciplinary Rules. A lawyer should, upon request, serve
on and assist committees and boards having responsibility for the administration
of the Disciplinary Rules.
EC 1-5. A lawyer should maintain high standards of professional conduct and
should encourage fellow lawyers to do likewise. He should be temperate and dignified,
and he should refrain from all illegal and ethically reprehensible conduct which
reflects adversely on his fitness to practice law. Because of his position in
society, even minor violations of law by a lawyer may tend to lessen public
confidence in the legal profession. Obedience to law exemplifies respect for
law. To lawyers especially, respect for the law should be more than a platitude.
EC 1-6. An applicant for admission to the bar or a lawyer may be unqualified,
temporarily or permanently, for other than ethical and educational reasons,
such as mental or emotional instability. Lawyers should be diligent in taking
steps to see that during a period of disqualification such person is not granted
a license or, if licensed, is not permitted to practice. In like manner, when
the disqualification has terminated, members of the bar should assist such person
in being licensed, or, if licensed, in being restored to his full right to practice.
CANON 2.
A Lawyer Should Assist the Legal
Profession in Fulfilling Its Duty to Make Legal Counsel Available and Should
Render Pro Bono Publico Legal Services.
DISCIPLINARY RULES.
DR 2-101. Publicity and Advertising.
(A) A lawyer shall not, on behalf of himself or any other lawyer affiliated
with him or his firm, use or participate in the use of any form of public communication
if such communication contains a false, fraudulent, misleading, or deceptive
statement or claim. For example, a communication or advertisement violates this
rule if it:
(1) Contains misleading fee information;
(2) States or implies that the outcome of a particular legal matter was not
or will not be related to its facts or merits;
(3) Compares a lawyer's services with other lawyers' services, unless the comparison
can be factually substantiated;
(4) Contains an endorsement by a celebrity or public figure who is not a client
of the firm without disclosure (a) of the fact that the speaker is not a client
of the lawyer or his firm and (b) whether the speaker is being paid for his
appearance or endorsement; or
(5) Contains a portrayal of a client by a non-client without a disclosure that
the depiction is a dramatization.
In the determination of whether a communication or advertisement violates this
rule, the communication or advertisement shall be considered in its entirety
including any qualifying statements or disclaimers contained therein.
(B) A public communication for which a lawyer has given value must be identified
as such unless it is apparent from the context that it is such a communication.
If such communication is disseminated to the public by use of electronic media
and is prerecorded prior to dissemination, the prerecorded communication shall
be approved by the lawyer before it is broadcast. A recording of any actual
transmission shall be retained by the lawyer for a period of one year following
the last broadcast date and shall be provided to the Standing Committee on Lawyer
Advertising and Solicitation upon its request.
(C) A written communication that is contained in an envelope bearing the lawyer's
or firm's name and the purpose of which in whole or in part is an initial contact
to promote employment for a fee, sent to a prospective non-lawyer client who
is not
(a) a close friend, relative, current client, former client; or
(b) one who has initiated contact with the attorney; or
(c) one who is similarly situated with a current client of the attorney with
respect to a specific matter being handled by the attorney, to the extent that
the prospective client's rights may be reasonably expected to be materially
affected by the outcome of that matter
shall be identified by conspicuous display of the statement in upper case letters
"ADVERTISING MATERIAL."
The required statement shall be displayed in the lower left hand corner of the
front of the envelope in type size at least equal to the largest type used on
the envelope, and also on the front of the first page of the communication contained
in the envelope, in type size at least equal to the largest type used on the
page.
Further, any such written communication shall not be sent by registered mail
or other forms of restricted delivery, nor shall such written communication
be sent to any person who has made known to the lawyer a desire not to receive
communications from the lawyer.
This subsection (C) does not apply to any communication which is directed to
be sent by a court or tribunal, or otherwise required by law.
(D) Public communication means all communication other than "in person"
communication as defined by DR 2-103.
DR 2-102. Professional Notices, Letterheads, Offices,
and Law Lists.
(A) A lawyer or law firm may use or participate in the use of a professional
card, professional announcement card, office sign, letterheads, telephone directory
listing, law list, legal directory listing, or a similar professional notice
or device unless it includes a statement or claim that is false, fraudulent,
misleading, or deceptive.
(B) A trade name may be used by a lawyer in private practice if it does not
imply a connection with a government agency or with a public or charitable organization
and is not otherwise in violation of DR 2-101(A). The name of a lawyer holding
a public office shall not be used in the name of a law firm, or in communications
on its behalf, during any substantial period in which the lawyer is not actively
and regularly practicing with the firm.
(C) A lawyer shall not hold himself out as having a partnership with one or
more other lawyers unless they are in fact partners.
(D) A law firm shall not be formed or continued between or among lawyers licensed
in different jurisdictions unless all enumerations of the members and associates
of the firm on its letterhead and in other permissible listings make clear the
jurisdictional limitations of those members and associates of the firm not licensed
to practice in all listed jurisdictions; however, the same firm name may be
used in each jurisdiction.
DR 2-103. Recommendation or Solicitation of Professional
Employment.
(A) A lawyer shall not, by in-person communication, solicit employment as a
private practitioner for himself, his partner, or associate or any other lawyer
affiliated with him or his firm from a nonlawyer who has not sought his advice
regarding employment of a lawyer if:
(1) Such communication contains a
false, fraudulent, misleading, or deceptive statement or claim; or
(2) Such communication has a substantial potential for or involves the use of
coercion, duress, compulsion, intimidation, threats, unwarranted promises of
benefits, overpersuasion, overreaching, or vexatious or harassing conduct, taking
into account the sophistication regarding legal matters, the physical, emotional
or mental state of the person to whom the communication is directed and the
circumstances in which the communication is made.
In-person communication means face-to-face communication and telephonic communication.
(B) A lawyer shall not assist in, cooperate with, or offer any qualified legal
services plan or assist in or cooperate with any insurer providing legal services
insurance as authorized by law to promote the use of his services or those of
his partner or associate or any other lawyer affiliated with him or his firm
if his assistance, cooperation or offer, and the communications of the organization,
are not in accordance with the standards of DR 2-101 or 2-103(A), as appropriate.
(C) A lawyer shall not assist a nonprofit organization which provides without
charge legal services to others as a form of political or associational expression
to promote the use of his services or those of his partner or associate or any
other lawyer affiliated with him or his firm if:
(1) His assistance or the communications of the organization on his behalf are
false, fraudulent, misleading, or deceptive; or
(2) His assistance or the communications of the organization on his behalf involve
the use of coercion, duress, compulsion, intimidation, threats, unwarranted
promises of benefits, overpersuasion, overreaching, or vexatious or harassing
conduct, taking into account the physical, emotional or mental state of the
person to whom the communication is directed and the circumstances in which
the communication is made.
(D) A lawyer shall not compensate or give anything of value to a person or organization
to recommend or secure his employment by a client, or as a reward for having
made a recommendation resulting in his employment by a client, except that he
may pay for public communications permitted by DR 2-101 and the usual and reasonable
fees or dues charged by a lawyer referral service and any qualified legal services
plan or contract of legal services insurance as authorized by law, provided
that such communication of the service or plan are in accordance with the standards
of DR 2-101 or DR 2-103, as appropriate.
(E) A lawyer shall not accept employment when he knows or it is obvious that
the person who seeks his services does so as a result of any person's conduct
which is prohibited under this Disciplinary Rule.
(F) Notwithstanding any other provisions of DR 2-103, a lawyer shall not initiate
in-person solicitation of professional employment for compensation in a personal
injury or wrongful death claim of a prospective client with whom the lawyer
has no family or prior professional relationship. In-person solicitation means
face-to-face communication and telephone communication.
DR 2-104. Specialists; Limitation of Practice.
(A) A lawyer shall not hold himself out publicly as, or imply that he is, a
recognized or certified specialist except in accordance with either DR 2-101,
DR 2-102 or DR 2-103, or except as follows:
(1) A lawyer admitted to practice before the United States Patent and Trademark
Office may use the designation Patents, Patent Attorney, or Patent Lawyer, or
any combination of those terms, on his letterhead and office sign. A lawyer
engaged in the trademark practice may use the designation Trademarks, Trademark
Attorney, or Trademark Lawyer, or any combination of those terms, on his letterhead
and office sign, and a lawyer engaged in the admiralty practice may use the
designation Admiralty, Proctor in Admiralty, or Admiralty Lawyer, or any combination
of those terms, on his letterhead and office sign.
(2) [Reserved, pending adoption of a specialization plan for lawyers.]
(B) A lawyer may state, announce or hold himself out as limiting his practice
to a particular area or field of law so long as his communication of such limitation
of practice is in accordance with the standards of DR 2-101, DR 2-102, or DR
2-103, as appropriate.
DR 2-105. Fees.
(A) A lawyer's fees shall be reasonable and adequately explained to the client.
(B) The basis or rate of a lawyer's fee shall be furnished on request of the
lawyer's client.
(C) A fee may be contingent on the outcome of the matter for which the service
is rendered, except in criminal cases or other matters in which a contingent
fee is prohibited by law. A contingent fee agreement shall state the method
by which the fee is to be determined, including the percentage or percentages
that shall accrue to the lawyer in the event of settlement, trial, or appeal,
expenses to be deducted from the recovery, and whether expenses are to be deducted
before or after the contingent fee is calculated. Upon conclusion of a contingent
fee matter, the lawyer shall provide the client with a closing statement showing
the fee and the method of its determination.
(D) A division of fees between lawyers who are not in the same firm may be made
only if:
(1) The client consents to the employment of additional counsel;
(2) Both attorneys expressly assume responsibility to the client; and
(3) The terms of the division of the fee are disclosed to the client and the
client consents thereto.
DR 2-106. Agreements Restricting the Practice of
a Lawyer.
(A) A lawyer shall not be a party to a partnership or employment agreement that
restricts the right of a lawyer to practice law after the termination of a relationship
created by the agreement, except as a condition to payment of retirement benefits.
(B) In connection with the settlement of a controversy or suit, a lawyer shall
not enter into an agreement that broadly restricts his right to practice law.
DR 2-107. Acceptance of Employment.
(A) A lawyer shall not accept or continue employment on behalf of a person if
he knows or it is obvious that such person wishes to:
(1) Bring a legal action, conduct a defense, or assert a position in litigation,
or otherwise have steps taken for him, merely for the purpose of harassing or
maliciously injuring any person.
(2) Present a claim or defense in litigation that is not warranted under existing
law, unless it can be supported by good faith argument for an extension, modification,
or reversal of existing law.
DR 2-108. Terminating Representation.
(A) Except as stated in paragraph (C), a lawyer shall withdraw from representing
a client if:
(1) Continuing the representation will result in a course of conduct by the
lawyer that is illegal or inconsistent with the Disciplinary Rules; or
(2) The lawyer's physical or mental condition materially impairs the lawyer
from adequately representing the client; or
(3) The lawyer is discharged by the client.
(B) Except as stated in paragraph (C), a lawyer may withdraw from representing
a client if:
(1) Withdrawal can be effected without material prejudice to the client; or
(2) The client persists in a course of conduct involving the lawyer's services
that the lawyer reasonably believes is illegal or unjust; or
(3) The client fails to fulfill an obligation to the lawyer regarding the lawyer's
services and such failure continues after reasonable notice to the client; or
(4) The representation will result in an unreasonable financial burden on the
lawyer or has been rendered unreasonably difficult by the client.
(C) In any court proceeding, counsel of record shall not withdraw except by
leave of court after notice to the client of the time and place of a motion
for leave to withdraw. In any other matter, a lawyer shall continue representation,
notwithstanding good cause for terminating the representation, when ordered
to do so by a tribunal.
(D) Upon termination of representation, a lawyer shall take reasonable steps
for the continued protection of a client's interests, including giving reasonable
notice to the client, allowing time for employment of other counsel, delivering
all papers and property to which the client is entitled, and refunding any advance
payment of fee that has not been earned. The lawyer may retain papers relating
to the client to the extent permitted by applicable law.
ETHICAL CONSIDERATIONS.
EC 2-1. The need of members of the public for legal services is met only if
they recognize their legal problems, appreciate the importance of seeking assistance,
and are able to obtain the services of acceptable legal counsel. Hence, important
functions of the legal profession are to educate laymen to recognize their legal
problems, to facilitate the process of intelligent selection of lawyers, and
to assist in making legal services fully available.
Recognition of Legal Problems.
EC 2-2. The legal profession should assist laypersons to recognize legal problems
because such problems may not be self-revealing and often are not timely noticed.
Therefore, lawyers should encourage and participate in educational and public
relations programs concerning our legal system, with particular reference to
legal problems that frequently arise. Preparation of advertisements and professional
articles for lay publications, participation in seminars, lectures, and civic
programs, and other forms of permitted communications by lawyers to the public
should be motivated by a desire to increase the public's awareness of legal
needs and its ability to select the most appropriate counsel, rather than for
the sole purpose of obtaining publicity for particular lawyers.
EC 2-3. Whether a lawyer acts properly in volunteering advice to a layperson
to seek legal services depends upon the circumstances. The giving of advice
that one should take legal action could well be in fulfillment of the duty of
the legal profession to assist laypersons in recognizing legal problems. The
advice is proper whenever it is motivated by a desire to protect one who does
not recognize that he may have legal problems or who is ignorant of his legal
rights or obligations. It is improper if the advice is false, fraudulent, deceptive,
or misleading. It is also improper, if given in person, when the advice is offered
under circumstances which present a substantial potential for coercion, duress,
or overreaching, which hold out unwarranted promises of benefits, taking into
account the mental, physical, or emotional condition of the layperson and the
circumstances surrounding the advice; or when the advice is given to a layperson
who does not have a prior relationship to the lawyer, or who is relatively unsophisticated
or inexperienced regarding legal services.
EC 2-4. A lawyer who writes or speaks for the purpose of educating members of
the public to recognize their legal problems and informing them of his availability
to furnish legal services should carefully refrain from giving or appearing
to give a general solution applicable to all apparently similar individual problems,
since slight changes in fact situations may require a material variance in the
applicable advice; otherwise, the public may be misled and misadvised. Talks
and writings by lawyers for laypersons should caution them not to attempt to
solve individual problems upon the basis of the information contained therein.
Selection of a Lawyer.
EC 2-5. Formerly a potential client usually knew the reputations of local lawyers
for competency and integrity and therefore could select a practitioner in whom
he had confidence. This traditional selection process worked well because it
was initiated by the client and the choice was an informed one.
EC 2-6. Changed conditions, however, have seriously restricted the effectiveness
of the traditional selection process. Often the reputations of lawyers are not
sufficiently known to enable laypersons to make intelligent choices. The law
has become increasingly complex and specialized. Few lawyers are willing and
competent to deal with every kind of legal matter, and many laypersons have
difficulty in determining the competence of lawyers to render different types
of legal services. The selection of legal counsel is particularly difficult
for transients, persons moving into new areas, persons of limited education
or means, and others who have little or no contact with lawyers. Lack of information
about the availability of lawyers, the specialized competence of particular
lawyers, and the cost of legal services have been said to lead laypersons to
avoid seeking legal advice.
EC 2-7. Selection of a lawyer by a layperson should be made on an informed basis.
Advice and recommendation of third parties -- relatives, friends, acquaintances,
business associates, or other lawyers -- and publicity and personal communications
from lawyers may help to make this possible. A lawyer should not compensate
another person for recommending him, for influencing a prospective client to
employ him, or to encourage future recommendations except that he may pay for
advertisements and other public communications, for participation in legal referral
services, or for lawful prepaid legal services plans or legal services insurance.
A lawyer may accept compensation from a nonprofit organization furnishing legal
services without charge to laypersons in furtherance of political or associational
expression. Advertisements and public communications should be formulated to
convey information that is useful to a layperson in making an appropriate selection.
Self-laudation should be avoided. Information that may be helpful in some situations
would include: (1) office information, such as, name, including name of law
firm and names of professional associates; addresses; telephone numbers; credit
card acceptability; language spoken and written; and office hours; (2) biographical
information; (3) description of the practice, but only by using designations
and definitions authorized by DR 2-104; and (4) fee information.
Advertising and Public Communications.
EC 2-8. The proper motivation for commercial publicity by lawyers lies in the
need to inform the public of the availability of competent, independent legal
counsel. The public benefit derived from advertising depends upon the usefulness
of the information provided to the community or to the segment of the community
to which it is directed. To achieve these objectives, advertising must not be
false, fraudulent, misleading or deceptive. Advertising marked by excesses of
content, volume, scope or frequency, or which unduly emphasizes unrepresentative
biographical information, does not provide that public benefit.
Solicitation and Permitted Communication.
EC 2-9. In person communications between a lawyer and a layperson regarding
legal problems and the selection of a lawyer should likewise be motivated by
a desire to inform the layperson of the availability of competent, independent
legal counsel. Since in person communication provides the opportunity for a
two-way exchange of information regarding legal problems and lawyers, the lawyer
should encourage questions and respond willingly, candidly, and truthfully.
Only personal communications which are not false, fraudulent, deceptive or misleading
can provide useful information. However, the in person character of such communications
-- in face-to-face settings and by telephone -- can give rise to overreaching
on the part of the lawyer or a feeling of being pressured for a response on
the part of the layperson. Such communication is improper if it has the potential
of involving coercion, duress, compulsion, intimidation, threats, unwarranted
promises of benefits, overpersuasion, overreaching, or vexatious or harassing
conduct. In determining whether such a potential exists, a lawyer should be
aware of whether the layperson's physical, mental or emotional state makes it
possible for him to make a reasoned judgment regarding the selection of a lawyer.
He should also take into account such other factors as the age, education, and
experience of the layperson and any preexisting relationships (family, friendship,
or business or other) between the lawyer and the layperson.
In person communications regarding legal problems and the selection of a lawyer
are also improper if the recipient, by virtue of inexperience or lack of sophistication
about legal services, is not capable of making an informed decision during the
course of the conversation.
The experience and sophistication of the layperson regarding legal services
and the employment of a lawyer has an important bearing on whether a lawyer
should volunteer through personal contact advice that he should obtain the service
of a lawyer. There is a greater danger of the lawyer's overreaching or the layperson's
feeling pressured to employ the lawyer in cases of relatively inexperienced
or unsophisticated persons than in other cases. For example, a young couple
considering the purchase of their first home may not have the experience or
sophistication to evaluate in a personal conversation the reasons they need
a lawyer. On the other hand, a business executive may be quite familiar with
and capable of evaluating in the same context his need and choice of a lawyer.
Also, close friends, relatives, clients and former clients, and other persons
who have established personal business or professional relationships with a
lawyer or his firm are deemed to be informed about the need and services of
the lawyer. It is therefore proper for the lawyer to volunteer advice to such
persons concerning the engagement of a lawyer and then accept employment. Of
course, the advice should not be false or misleading, and should be given in
circumstances which do not have the potential for overreaching.
The in person solicitation of personal injury and wrongful death claims is fraught
with special perils, as noted by the United States Supreme Court Ohralik v.
Ohio State Bar Assn., 436 U.S. 447 (1978). The potential for overreaching is
very great when a lawyer, a professional trained in the art of persuasion, personally
solicits an injured or distressed layperson. The injured person's plight not
only makes him or her more vulnerable to influence, but is also more likely
to make the overtures of an uninvited lawyer more obtrusive and distressing
as an invasion of the individual's privacy. Accordingly, a different rule prevails.
Lawyers may not solicit these types of claims by face-to-face or telephone communication,
in the absence of a family or prior professional relationship, unless the contact
is completely free of any motivation for financial gain.
Avoidance of Deceptiveness.
EC 2-10. Advertisements and personal communications which are not misleading
or deceptive will make it apparent that the necessity and advisability of legal
action depends on variant factors that must be evaluated individually. Because
fee information frequently may be incomplete and misleading to a layperson,
a lawyer should exercise great care that fee information is complete and accurate.
Because of the individuality of each legal problem, statements regarding average,
minimum or estimated fees may be deceiving as will commercial publicity conveying
information as to results previously achieved, general or average solutions,
or expected outcomes. It would be misleading to advertise a set fee for a specific
type of case without adhering to the stated fee in charging clients. Advertisements
or other claims that convey an impression that the ingenuity of the lawyer rather
than the justice of the claim is determinative are similarly likely to be deceptive.
Statistical data or other information based on past performance or prediction
of future success is deceptive because it ignores important variables. Only
factual assertions, and not opinions, should be made in such communications.
Commercial publicity and personal communications addressed to undertaking any
legal action should always indicate the provisions of such undertaking and should
disclose the impossibility of assuring any particular result. Not only must
communication be truthful but its meaning must be capable of being understood
by the reasonably prudent layperson.
EC 2-11. The regulation of advertising and personal communications by lawyers
is rooted in the public interest. Advertising through which a lawyer seeks business
by use of extravagant, or self-laudatory statements or appeals to fears and
emotions could mislead laypersons. Furthermore, public and personal communications
that produce unrealistic expectations in particular cases may bring about distrust
of the law and lawyers. Thus, public confidence in our legal system would be
impaired by such statements regarding professional services. The attorney-client
relationship, being personal and unique, should not be established as the result
of pressures and deceptions. All lawyers should remain vigilant to prevent deceptive
publicity that would mislead laypersons, cause distrust of the law and lawyers,
and undermine public confidence in the legal system. Only unambiguous information
relevant to a layperson's decision regarding his legal rights or his selection
of counsel is appropriate in communications.
EC 2-12. The Disciplinary Rules recognize the value of giving assistance in
the selection process through forms of communications that furnish identification
of a lawyer while avoiding falsity, deception and misrepresentation. All such
communications should be evaluated with regard to their effect on the reasonably
prudent layperson. The non-lawyer is best served if communications about legal
problems and lawyers contain no misleading information or emotional appeals,
and emphasize the necessity of an individualized evaluation of the situation
before conclusions as to legal needs and probable expenses can be made. The
attorney-client relationship should result from a free and informed choice by
the layperson. Unwarranted promises of benefits, overpersuasion, or vexatious
or harassing conduct are improper.
EC 2-13. The name under which a lawyer conducts his practice may be a factor
in the selection process. The use of a name which could mislead laypersons concerning
the identity, responsibility, and status of those practicing thereunder is not
proper. For many years some law firms have used a firm name retaining one or
more names of deceased or retired partners and such practice is not improper
if the firm is a bona fide successor of a firm in which the deceased or retired
person was a member, if the use of the name is authorized by law or by contract,
and if the public is not misled thereby. However, the name of a partner who
withdraws from a firm but continues to practice law should be omitted from the
firm name in order to avoid misleading the public.
EC 2-14. A lawyer occupying a judicial, legislative, or public executive or
administrative position who has the right to practice law concurrently may allow
his name to remain in the name of the firm if he actively continues to practice
law as a member thereof. Otherwise, his name should be removed from the firm
name, and he should not be identified as a past or present member of the firm;
and he should not hold himself out as being a practicing lawyer.
EC 2-15. In order to avoid the possibility of misleading persons with whom he
deals, a lawyer should be scrupulous in the representation of his professional
status. He should not hold himself out as being a partner or associate of a
law firm if he is not one in fact, and thus should not hold himself out as a
partner or associate if he only shares offices with another lawyer.
EC 2-16. In some instances a lawyer confines his practice to a particular field
of law. In the absence of state controls or other standards to insure that the
public is not misled about the existence of special competence, a lawyer should
not hold himself out as a specialist or as having official recognition as a
specialist, other than in the fields of admiralty, trademark, and patent law
where a holding out as a specialist historically has been permitted. A lawyer
may, however, indicate, in public announcements and personal communications,
if it is factual, a limitation of his practice or that he practices in one or
more particular areas or fields of law, which will assist laypersons in selecting
counsel and accurately describe the limited area in which the lawyer practices.
EC 2-17. The legal profession has developed lawyer referral systems designed
to aid individuals who are able to pay fees but need assistance in locating
lawyers competent to handle their particular problems. Use of a lawyer referral
system enables a layman to avoid an uninformed selection of a lawyer because
such a system makes possible the employment of competent lawyers who have indicated
an interest in the subject matter involved. Lawyers should support the principle
of lawyer referral systems and should encourage the evolution of other ethical
plans which aid in the selection of qualified counsel.
Financial Ability to Employ Counsel: Generally.
EC 2-18. The legal profession cannot remain a viable force in fulfilling its
role in our society unless its members receive adequate compensation for services
rendered, and reasonable fees should be charged in appropriate cases to clients
able to pay them. Nevertheless, persons unable to pay all or a portion of a
reasonable fee should be able to obtain necessary legal services, and lawyers
should support and participate in ethical activities designed to achieve that
objective.
Financial Ability to Employ Counsel: Persons Able to Pay Reasonable Fees.
EC 2-19. The determination of a proper fee requires consideration of the interests
of both client and lawyer. A lawyer should not charge more than a reasonable
fee, for excessive cost of legal service would deter laymen from utilizing the
legal system in protection of their rights. Furthermore, an excessive charge
abuses the professional relationship between lawyer and client. On the other
hand, adequate compensation is necessary in order to enable the lawyer to serve
his client effectively and to preserve the integrity and independence of the
profession.
EC 2-20. The determination of the reasonableness of a fee requires consideration
of all relevant circumstances. The fees of a lawyer will vary according to many
factors, including the time required, his experience, ability, and reputation,
the nature of the employment, the responsibility involved, and the results obtained.
It is a commendable and long-standing tradition of the bar that special consideration
is given in the fixing of any fee for services rendered another lawyer or a
member of his immediate family.
EC 2-21. As soon as feasible after a lawyer has been employed, it is desirable
that he reach a clear agreement with his client as to the basis of the fee charges
to be made. Such a course will not only prevent later misunderstanding but will
also work for good relations between the lawyer and the client. It is usually
beneficial to reduce to writing the understanding of the parties regarding the
fee, particularly when it is contingent. A lawyer should be mindful that many
persons who desire to employ him may have had little or no experience with fee
charges of lawyers, and for this reason he should explain fully to such persons
the reasons for the particular fee arrangement he proposes.
EC 2-22. Contingent fee arrangements in civil cases have long been commonly
accepted in the United States in proceedings to enforce claims. The historical
bases of their acceptance are that (1) they often, and in a variety of circumstances,
provide the only practical means by which one having a claim against another
can economically afford, finance, and obtain the services of a competent lawyer
to prosecute his claim and (2) a successful prosecution of the claim produces
a res out of which the fee can be paid. Although a lawyer generally should decline
to accept employment on a contingent fee basis by one who is able to pay a reasonable
fixed fee, it is not necessarily improper for a lawyer, where justified by the
particular circumstances of a case, to enter into a contingent fee contract
in a civil case with any client who, after being fully informed of all relevant
factors, desires that arrangement. Because of the human relationships involved
and the unique character of the proceedings, contingent fee arrangements in
domestic relation cases are rarely justified. In administrative agency proceedings
contingent fee contracts should be governed by the same considerations as in
other civil cases. Public policy condemns contingent fee arrangements in criminal
cases, largely on the ground that legal services in criminal cases do not produce
a res with which to pay the fee.
EC 2-23. A lawyer should not accept compensation or any thing of value incident
to his employment or services from one other than his client without the knowledge
and consent of his client after full disclosure.
EC 2-24. Without the informed consent of his client, a lawyer should not associate
in a particular matter another lawyer outside his firm. A fee may be divided
between lawyers properly associated if the division is disclosed to the client
and the client consents thereto.
EC 2-25. A lawyer should be zealous in his efforts to avoid controversies over
fees with clients and should attempt to resolve amicably any differences on
the subject. He should not sue a client for a fee unless necessary to prevent
fraud or gross imposition by the client.
Financial Ability to Employ Counsel: Persons Unable to Pay Reasonable Fees.
EC 2-26. A layman whose financial ability is not sufficient to permit payment
of any fee cannot obtain legal services, other than in cases where a contingent
fee is appropriate, unless the services are provided for him. Even a person
of moderate means may be unable to pay a reasonable fee which is large because
of the complexity, novelty, or difficulty of the problem or similar factors.
EC 2-27. Historically, the need for legal services of those unable to pay reasonable
fees has been met in part by lawyers who donated their services or accepted
court appointments on behalf of such individuals. The basic responsibility for
providing legal services for those unable to pay ultimately rests upon the individual
lawyer, and personal involvement in the problems of the disadvantaged can be
one of the most rewarding experiences in the life of a lawyer. Every lawyer,
regardless of professional prominence or professional workload, should find
time to participate in serving the disadvantaged. The rendition of free legal
services to those unable to pay reasonable fees continues to be an obligation
of each lawyer, but the efforts of individual lawyers are often not enough to
meet the need. Thus it has been necessary for the profession to institute additional
programs to provide legal services. Accordingly, legal aid offices, lawyer referral
services, and other related programs have been developed, and others will be
developed, by the profession. Every lawyer should support all proper efforts
to meet this need for legal services.
EC 2-28. A lawyer should aspire to render two percent per year of the lawyer's
professional time to pro bono publico legal services.
EC 2-29. Pro bono publico legal services are defined as including any of the
following:
(a) Poverty Law: Free or nominal fee legal services for clients who do not have
the financial resources to compensate counsel.
(b) Civil Rights Law: Free or nominal fee legal services involving a right of
an individual which society has a special interest in protecting.
(c) Civic or Public Interest Law: Free or nominal fee legal services provided
directly in furtherance of a charitable service or a significant social or public
interest.
(d) Increasing the Availability of Pro Bono Legal Services: Uncompensated activity
designed to increase the availability of legal services of the types described
above.
Legal services should be viewed broadly as including any service which utilizes
a lawyer's legal training and skills.
EC 2-30. Free or nominal fee legal services for indigent persons by private
attorneys participating in legal aid referral programs would be typical examples
of "poverty law." Legal services for persons whose incomes exceed
legal aid guidelines, but who nevertheless have insufficient resources to compensate
counsel, would also qualify as "poverty law," provided the free or
nominal fee nature of any such legal work is established in advance.
EC 2-31. Free or nominal fee legal services for victims of discrimination based
on race, sex, age or handicap would be typical examples of "civil rights
law," provided the free or nominal fee nature of any such legal work is
established in advance.
EC 2-32. Free or nominal fee provision of legal services to religious, charitable
or civic groups in efforts such as setting up a shelter for the homeless, operating
a hotline for battered spouses or providing public service information would
be examples of "public interest law." Serving on the board of directors
or as general counsel for such groups would not necessarily qualify, since such
positions often further a lawyer's professional or personal interest. The definition
is met, however, when a lawyer undertakes legal representation of such a group
directly in furtherance of a specific charitable, social or public service.
EC 2-33. Training and mentoring lawyers who have volunteered to take legal aid
referrals or helping recruit lawyers for pro bono referral programs would be
examples of "increasing the availability of legal services." Serving
on bar association committees or legal aid boards of directors would not necessarily
qualify, although a lawyer who devotes an exceptional amount of time to such
activities may consider this in determining the amount of pro bono publico work
that the lawyer should also undertake.
EC 2-34. Service in any of the categories described is not pro bono publico
if on a contingent fee basis. Because service must be provided without fee or
expectation of fee, the intent of the lawyer to render free or nominal fee legal
services is essential. Accordingly, services for which fees go uncollected would
not qualify.
Acceptance and Retention of Employment.
EC 2-35. A lawyer is under no obligation to act as adviser or advocate for every
person who may wish to become his client; but in furtherance of the objective
of the bar to make legal services fully available, a lawyer should not lightly
decline proffered employment. The fulfillment of this objective requires acceptance
by a lawyer of his share of tendered employment which may be unattractive both
to him and the bar generally.
EC 2-36. History is replete with instances of distinguished and sacrificial
services by lawyers who have represented unpopular clients and causes. Regardless
of his personal feelings, a lawyer should not decline representation because
a client or a cause is unpopular or community reaction is adverse.
EC 2-37. The personal preference of a lawyer to avoid adversary alignment against
judges, other lawyers, public officials, or influential members of the community
does not justify his rejection of tendered employment.
EC 2-38. When a lawyer is appointed by a court or requested by a bar association
to undertake representation of a person unable to obtain counsel, whether for
financial or other reasons, he should not seek to be excused from undertaking
the representation except for compelling reasons. Compelling reasons do not
include such factors as the repugnance of the subject matter of the proceeding,
the identity or position of a person involved in the case, the belief of the
lawyer that the defendant in a criminal proceeding is guilty, or the belief
of the lawyer regarding the merits of the civil case.
EC 2-39. Employment should not be accepted by a lawyer when he is unable to
render competent service or when he knows or it is obvious that the person seeking
to employ him desires to institute or maintain an action merely for the purpose
of harassing or maliciously injuring another. Likewise, a lawyer should decline
employment if the intensity of his personal feeling, as distinguished from a
community attitude, may impair his effective representation of a prospective
client. If a lawyer knows a client has previously obtained counsel, he should
not accept employment in the matter unless the other counsel approves or withdraws,
or the client terminates the prior employment.
EC 2-40. Full availability of legal counsel requires both that persons be able
to obtain counsel and that lawyers who undertake representation complete the
work involved. Trial counsel for a convicted defendant should continue to represent
his client by advising whether to take an appeal and, if the appeal is prosecuted,
by representing him through the appeal unless new counsel is substituted or
withdrawal is permitted by the appropriate court.
EC 2-41. A decision by a lawyer to withdraw should be made only on the basis
of compelling circumstances, and in a matter pending before a tribunal he must
comply with the rules of the tribunal regarding withdrawal. A lawyer should
not withdraw without considering carefully and endeavoring to minimize the possible
adverse effect on the rights of his client and the possibility of prejudice
to his client as a result of his withdrawal. Even when he justifiably withdraws,
a lawyer should protect the welfare of his client by giving due notice of his
withdrawal, suggesting employment of other counsel, delivering to the client
all papers and property to which the client is entitled, cooperating with counsel
subsequently employed, and otherwise endeavoring to minimize the possibility
of harm. Further, he should refund to the client any compensation not earned
during the employment.
CANON 3.
A Lawyer Should Assist
in Preventing the Unauthorized Practice of Law.
DISCIPLINARY RULES.
DR 3-101. Aiding Unauthorized Practice of Law.
(A) A lawyer shall not aid a nonlawyer in the unauthorized practice of law.
(B) A lawyer, law firm or professional corporation shall not employ in any capacity
a lawyer whose license has been suspended or revoked for professional misconduct,
during such period of suspension or revocation, if the disciplined lawyer was
associated with such lawyer, law firm or professional corporation at any time
on or after the date of the acts which resulted in suspension or revocation.
(C) A lawyer, law firm or professional corporation employing a lawyer as a consultant,
law clerk or legal assistant when that lawyer's license is suspended or revoked
for professional misconduct shall not represent any client represented by the
disciplined lawyer or by any lawyer with whom the disciplined lawyer practiced
on or after the date of the acts which resulted in suspension or revocation.
DR 3-102. Dividing Legal Fees with a Nonlawyer.
(A) A lawyer or law firm shall not share legal fees with a nonlawyer, except
that:
(1) An agreement by a lawyer with his firm, partner, or associate may provide
for the payment of money, over a reasonable period of time after his death,
to his estate or to one or more specified persons.
(2) A lawyer who undertakes to complete unfinished legal business of a deceased
lawyer may pay to the estate of the deceased lawyer that proportion of the total
compensation that fairly represents the services rendered by the deceased lawyer.
(3) A lawyer or law firm may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-sharing
arrangement, provided such plan does not circumvent another Disciplinary Rule.
DR 3-103. Forming a Partnership with a Nonlawyer.
(A) A lawyer shall not form a partnership with a nonlawyer if any of the activities
of the partnership consist of the practice of law.
DR 3-104. Nonlawyer Personnel.
(A) A lawyer or law firm may employ nonlawyer personnel to perform delegated
functions under the direct supervision of a licensed attorney, but shall not
permit such nonlawyer personnel to:
(1) Counsel clients about legal matters;
(2) Appear as counsel in court or in proceedings which are part of the judicial
process; or
(3) Engage in the unauthorized practice of law.
(B) A lawyer or law firm that employs nonlawyer personnel shall not permit any
representation that such nonlawyer is a lawyer.
(C) A lawyer or law firm that employs nonlawyer personnel shall exercise a high
standard of care to assure compliance by the nonlawyer personnel with the applicable
provisions of the Code of Professional Responsibility. The initial and the continuing
relationship with the client must be the responsibility of the employing attorney.
(D) The delegated work of nonlawyer personnel shall be such that it will assist
only the employing attorney and will be merged into the lawyer's completed product.
The lawyer shall examine and be responsible for all work delegated to nonlawyer
personnel.
(E) The lawyer or law firm that employs nonlawyer personnel shall not permit
such nonlawyer to communicate with clients or the public, including lawyers
outside his firm, without first disclosing his nonlawyer status.
ETHICAL CONSIDERATIONS.
EC 3-1. The prohibition against the practice of law by a layman is grounded
in the need of the public for integrity and competence of those who undertake
to render legal services. Because of the fiduciary and personal character of
the lawyer-client relationship and the inherently complex nature of our legal
system, the public can better be assured of the requisite responsibility and
competence if the practice of law is confined to those who are subject to the
requirements and regulations imposed upon members of the legal profession.
EC 3-2. The sensitive variations in the considerations that bear on legal determinations
often make it difficult even for a lawyer to exercise appropriate professional
judgment, and it is therefore essential that the personal nature of the relationship
of client and lawyer be preserved. Competent professional judgment is the product
of a trained familiarity with law and legal processes, a disciplined, analytical
approach to legal problems, and a firm ethical commitment.
EC 3-3. A nonlawyer who undertakes to handle legal matters is not governed as
to integrity or legal competence by the same rules that govern the conduct of
a lawyer. A lawyer is not only subject to that regulation but also is committed
to high standards of ethical conduct. The public interest is best served in
legal matters by a regulated profession committed to such standards. The Disciplinary
Rules protect the public in that they prohibit a lawyer from seeking employment
by improper overtures, from acting in cases of divided loyalties, and from submitting
to the control of others in the exercise of his judgment. Moreover, a person
who entrusts legal matters to a lawyer is protected by the attorney-client privilege
and by the duty of the lawyer to hold inviolate the confidences and secrets
of his client.
EC 3-4. A layman who seeks legal services often is not in a position to judge
whether he will receive proper professional attention. The entrustment of a
legal matter may well involve the confidences, the reputation, the property,
the freedom, or even the life of the client. Proper protection of members of
the public demands that no person be permitted to act in the confidential and
demanding capacity of a lawyer unless he is subject to the regulations of the
legal profession.
EC 3-5. It is neither necessary nor desirable to attempt the formulation of
a single, specific definition of what constitutes the practice of law. Functionally,
the practice of law relates to the rendition of services for others that call
for the professional judgment of a lawyer. The essence of the professional judgment
of the lawyer is his educated ability to relate the general body and philosophy
of law to a specific legal problem of a client; and thus, the public interest
will be better served if only lawyers are permitted to act in matters involving
professional judgment. Where this professional judgment is not involved, nonlawyers,
such as court clerks, police officers, abstracters, and many governmental employees,
may engage in occupations that require a special knowledge of law in certain
areas. But the services of a lawyer are essential in the public interest whenever
the exercise of professional legal judgment is required.
EC 3-6. A lawyer often delegates tasks to clerks, secretaries, and other lay
persons. Such delegation is proper if the lawyer maintains a direct relationship
with his client, supervises the delegated work, and has complete professional
responsibility for the work product. This delegation enables a lawyer to render
legal service more economically and efficiently.
EC 3-7. The prohibition against a nonlawyer practicing law does not prevent
a layman from representing himself, for then he is ordinarily exposing only
himself to possible injury. The purpose of the legal profession is to make educated
legal representation available to the public, but anyone who does not wish to
avail himself of such representation is not required to do so. Even so, the
legal profession should help members of the public to recognize legal problems
and to understand why it may be unwise for them to act for themselves in matters
having legal consequences.
EC 3-8. Since a lawyer should not aid or encourage a layman to practice law,
he should not practice law in association with a layman or otherwise share legal
fees with a layman. This does not mean, however, that the pecuniary value of
the interest of a deceased lawyer in his firm or practice may not be paid to
his estate or specified persons such as his widow or heirs. In like manner,
profit-sharing plans of a lawyer or law firm which include nonlawyer office
employees are not improper. These limited exceptions to the rule against sharing
legal fees with laymen are permissible since they do not aid or encourage laymen
to practice law.
EC 3-9. Regulation of the practice of law is accomplished principally by the
respective states. Authority to engage in the practice of law conferred in any
jurisdiction is not per se a grant of the right to practice elsewhere, and it
is improper for a lawyer to engage in practice where he is not permitted by
law or by court order to do so. However, the demands of business and the mobility
of our society pose distinct problems in the regulation of the practice of law
by the states. In furtherance of the public interest, the legal profession should
discourage regulation that unreasonably imposes territorial limitations upon
the right of a lawyer to handle the legal affairs of his client or upon the
opportunity of a client to obtain the services of a lawyer of his choice in
all matters including the presentation of a contested matter in a tribunal before
which the lawyer is not permanently admitted to practice.
CANON 4.
A Lawyer Should Preserve
the Confidences and Secrets of a Client.
DISCIPLINARY RULES.
DR 4-101. Preservation of Confidences and Secrets
of a Client.
(A) "Confidence" refers to information protected by the attorney-client
privilege under applicable law, and "secret" refers to other information
gained in the professional relationship that the client has requested be held
inviolate or the disclosure of which would be embarrassing or would be likely
to be detrimental to the client.
(B) Except as provided by DR 4-101(C) and (D), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or
a third person, unless the client consents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected,
but only after a full disclosure to them.
(2) Confidences or secrets when required by law or court order.
(3) Information which clearly establishes that his client has, in the course
of the representation, perpetrated upon a third party a fraud related to the
subject matter of the representation.
(4) Confidences or secrets necessary to establish the reasonableness of his
fee or to defend himself or his employees or associates against an accusation
of wrongful conduct.
(D) A lawyer shall reveal:
(1) The intention of his client, as stated by the client, to commit a crime
and the information necessary to prevent the crime, but before revealing such
information, the attorney shall, where feasible, advise his client of the possible
legal consequences of his action, urge the client not to commit the crime, and
advise the client that the attorney must reveal the client's criminal intention
unless thereupon abandoned, and, if the crime involves perjury by the client,
that the attorney shall seek to withdraw as counsel.
(2) Information which clearly establishes that his client has, in the course
of the representation, perpetrated a fraud related to the subject matter of
the representation upon a tribunal. Before revealing such information, however,
the lawyer shall request that his client advise the tribunal of the fraud. Information
is clearly established when the client acknowledges to the attorney that he
has perpetrated a fraud upon a tribunal.
(E) A lawyer shall exercise reasonable care to prevent his employees, associates,
and others whose services are utilized by him from disclosing or using confidences
or secrets of a client, except that a lawyer may reveal the information allowed
by DR 4-101(C) through an employee.
ETHICAL CONSIDERATIONS.
EC 4-1. Both the fiduciary relationship existing between lawyer and client and
the proper functioning of the legal system require the preservation by the lawyer
of confidences and secrets of one who has employed or sought to employ him.
A client must feel free to discuss whatever he wishes with his lawyer and a
lawyer must be equally free to obtain information beyond that volunteered by
his client. A lawyer should be fully informed of all the facts of the matter
he is handling in order for his client to obtain the full advantage of our legal
system. It is for the lawyer in the exercise of his independent professional
judgment to separate the relevant and important from the irrelevant and unimportant.
The observance of the ethical obligation of a lawyer to hold inviolate the confidences
and secrets of his client not only facilitates the full development of facts
essential to proper representation of the client but also encourages laymen
to seek early legal assistance.
EC 4-2. The obligation to protect confidences and secrets obviously does not
preclude a lawyer from revealing information when his client consents after
full disclosure, when necessary to perform his professional employment, or when
required by law. Unless the client otherwise directs, a lawyer may disclose
the affairs of his client to partners or associates of his firm. It is a matter
of common knowledge that the normal operation of a law office exposes confidential
professional information to nonlawyer employees of the office, particularly
secretaries and those having access to the files; and this obligates a lawyer
to exercise care in selecting and training his employees so that the sanctity
of all confidences and secrets of his clients may be preserved. If the obligation
extends to two or more clients as to the same information, a lawyer should obtain
the permission of all before revealing the information. A lawyer must always
be sensitive to the rights and wishes of his client and act scrupulously in
the making of decisions which may involve the disclosure of information obtained
in his professional relationship. Thus, in the absence of consent of his client
after full disclosure, a lawyer should not associate another lawyer in the handling
of a matter; nor should he, in the absence of consent, seek counsel from another
lawyer if there is a reasonable possibility that the identity of the client
or his confidences or secrets would be revealed to such lawyer. Both social
amenities and professional duty should cause a lawyer to shun indiscreet conversations
concerning his clients.
EC 4-3. Unless the client otherwise directs, it is not improper for a lawyer
to give limited information from his files to an outside agency necessary for
statistical, bookkeeping, accounting, data processing, banking, printing, or
other legitimate purposes, provided he exercises due care in the selection of
the agency and warns the agency that the information must be kept confidential.
EC 4-4. The attorney-client privilege is more limited than the ethical obligation
of a lawyer to guard the confidences and secrets of his client. This ethical
precept, unlike the evidentiary privilege, exists without regard to the nature
or source of information or the fact that others share the knowledge. A lawyer
should endeavor to act in a manner which preserves the evidentiary privilege;
for example, he should avoid professional discussions in the presence of persons
to whom the privilege does not extend. A lawyer has an obligation to advise
the client of the attorney-client privilege and timely to assert the privilege
unless it is waived by the client.
EC 4-5. A lawyer should not use information acquired in the course of the representation
of a client to the disadvantage of the client and a lawyer should not use, except
with the consent of his client after full disclosure, such information for his
own purposes. Likewise, a lawyer should be diligent in his efforts to prevent
the misuse of such information by his employees and associates. Care should
be exercised by a lawyer to prevent the disclosure of the confidences and secrets
of one client to another, and no employment should be accepted that might require
such disclosure.
EC 4-6. The obligation of a lawyer to preserve the confidences and secrets of
his client continues after the termination of his employment. Thus a lawyer
should not attempt to sell a law practice as a going business because, among
other reasons, to do so would involve the disclosure of confidences and secrets.
A lawyer should also provide for the protection of the confidences and secrets
of his client following the termination of the practice of the lawyer, whether
termination is due to death, disability, or retirement. For example, a lawyer
might provide for the personal papers of the client to be returned to him and
for the papers of the lawyer to be delivered to another lawyer or to be destroyed.
In determining the method of disposition, the instructions and wishes of the
client should be a dominant consideration.
CANON 5.
A Lawyer Should Exercise
Independent Professional Judgment on Behalf of a Client.
DISCIPLINARY RULES.
DR 5-101. Refusing Employment When the Interests
of the Lawyer May Impair His Independent Professional Judgment.
(A) A lawyer shall not accept employment if the exercise of his professional
judgment on behalf of his client may be affected by his own financial, business,
property, or personal interests, except with the consent of his client after
full and adequate disclosure under the circumstances.
(B) A lawyer shall not accept employment in contemplated or pending litigation
if he knows or it is obvious that he or a lawyer in his firm ought to be called
as a witness, except that he may undertake the employment and he or a lawyer
in his firm may testify:
(1) If the testimony will relate solely to an uncontested matter or to a matter
of formality and there is no reason to believe that substantial evidence will
be offered in opposition to the testimony.
(2) If the testimony will relate solely to the nature and value of legal services
rendered in the case by the lawyer or his firm to the client.
(3) As to any matter, if refusal would work a substantial hardship on the client
because of the distinctive value of the lawyer or his firm as counsel in the
particular case.
DR 5-102. Withdrawal as Counsel When the Lawyer Becomes
a Witness.
(A) If, after undertaking employment in contemplated or pending litigation,
a lawyer learns or it is obvious that he or a lawyer in his firm ought to be
called as a witness on behalf of his client, he shall withdraw from the conduct
of the trial and his firm, if any, shall not continue representation in the
trial, except that he may continue the representation and he or a lawyer in
his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through
(3).
(B) If, after undertaking employment in contemplated or pending litigation,
a lawyer learns or it is obvious that he or a lawyer in his firm may be called
as a witness other than on behalf of his client, he may continue the representation
until it is apparent that his testimony is or may be prejudicial to his client.
DR 5-103. Avoiding Acquisition of Interest in Litigation.
(A) A lawyer shall not acquire a proprietary interest in the cause of action
or subject matter of litigation he is conducting for a client, except that he
may:
(1) Acquire a lien granted by law to secure his fee or expenses.
(2) Contract with a client for a reasonable contingent fee in a civil case.
(B) While representing a client in connection with contemplated or pending litigation,
a lawyer shall not advance or guarantee financial assistance to his client,
except that the lawyer may advance or guarantee the expenses of litigation,
including court costs, expenses of investigation, expenses of medical examination,
and costs of obtaining and presenting evidence, provided the client remains
ultimately liable for such expenses.
DR 5-104. Limiting Business Relations with a Client.
(A) A lawyer shall not enter into a business transaction with a client if they
have differing interests therein and if the client expects the lawyer to exercise
his professional judgment therein for the protection of the client, unless the
client has consented after full and adequate disclosure under the circumstances
and provided that the transaction was not unconscionable, unfair or inequitable
when made.
(B) A lawyer shall not prepare an instrument giving the lawyer or a member of
the lawyer's family any gift from a client, including a testamentary gift, except
where the client is a relative of the donee.
DR 5-105. Refusing to Accept or Continue Employment
if the Interests of Another Client May Impair the Independent Professional Judgment
of the Lawyer.
(A) A lawyer shall decline proffered employment if the exercise of his independent
professional judgment in behalf of a client will be or is likely to be adversely
affected by the acceptance of the proffered employment, except to the extent
permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent
professional judgment in behalf of a client will be or is likely to be adversely
affected by his representation of another client, except to the extent permitted
under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent
multiple clients if it is obvious that he can adequately represent the interest
of each and if each consents to the representation after full disclosure of
the possible effect of such representation on the exercise of his independent
professional judgment on behalf of each.
(D) A lawyer who has represented a client in a matter shall not thereafter represent
another person in the same or substantially related matter if the interest of
that person is adverse in any material respect to the interest of the former
client unless the former client consents after disclosure.
(E) If a lawyer is required to decline employment or to withdraw from employment
under DR 5-105, no partner or associate of his or his firm may accept or continue
such employment.
DR 5-106. Avoiding Influence by Others Than the Client.
(A) Except with the consent of his client after full and adequate disclosure
under the circumstances, a lawyer shall not:
(1) Accept compensation for his legal services from one other than his client.
(2) Accept from one other than his client anything of value related to his representation
of or his employment by his client.
(B) A lawyer shall not permit a person who recommends, employs, or pays him
to render legal services for another to direct or regulate his professional
judgment in rendering such legal services.
(C) A lawyer shall not practice with or in the form of a professional corporation
or association authorized to practice law for a profit, if:
(1) A nonlawyer owns any interest therein, except that a fiduciary representative
of the estate of a lawyer may hold the stock or interest of the lawyer for a
reasonable time during administration;
(2) A nonlawyer is a corporate director or officer thereof; or
(3) A nonlawyer has the right to direct or control the professional judgment
of a lawyer.
DR 5-107. Settling Similar Claims of Clients.
(A) A lawyer who represents two or more clients shall not make or participate
in the making of an aggregate settlement of the claims of or against his clients,
unless each client has consented to the settlement after being advised of the
existence and nature of all the claims involved in the proposed settlement,
of the total amount of the settlement, and of the participation of each person
in the settlement.
ETHICAL CONSIDERATIONS.
EC 5-1. The professional judgment of a lawyer should be exercised, within the
bounds of the law, solely for the benefit of his client and free of compromising
influences and loyalties. Neither his personal interests, the interests of other
clients, nor the desires of third persons should be permitted to dilute his
loyalty to his client.
Interests of a Lawyer That May Affect His Judgment.
EC 5-2. A lawyer should not accept proffered employment if his personal interests
or desires may affect adversely the advice to be given or services to be rendered
the prospective client. After accepting employment, a lawyer carefully should
refrain from acquiring a property right or assuming a position that would tend
to make his judgment less protective of the interests of his client.
EC 5-3. The self-interest of a lawyer resulting from his ownership of property
in which his client also has an interest or which may affect property of his
client may interfere with the exercise of free judgment on behalf of his client.
If such interference would occur with respect to a prospective client, a lawyer
should decline employment proffered by him. After accepting employment, a lawyer
should not acquire property rights that would adversely affect his professional
judgment in the representation of his client. Even if the property interests
of a lawyer do not presently interfere with the exercise of his independent
judgment, but the likelihood of interference can reasonably be foreseen by him,
a lawyer should explain the situation to his client and should decline employment
or withdraw unless the client consents to the continuance of the relationship
after full disclosure. A lawyer should not seek to persuade his client to permit
him to invest in an undertaking of his client nor make improper use of his professional
relationship to influence his client to invest in an enterprise in which the
lawyer is interested.
EC 5-4. If, in the course of his representation of a client, a lawyer is permitted
to receive from his client a beneficial ownership in publication rights relating
to the subject matter of the employment, he may be tempted to subordinate the
interests of his client to his own anticipated pecuniary gain. For example,
a lawyer in a criminal case who obtains from his client television, radio, motion
picture, newspaper, magazine, book, or other publication rights with respect
to the case may be influenced, consciously or unconsciously, to a course of
conduct that will enhance the value of his publication rights to the prejudice
of his client. To prevent these potentially differing interests, such arrangements
should be scrupulously avoided prior to the termination of all aspects of the
matter giving rise to the employment, even though his employment has previously
ended.
EC 5-5. A lawyer should not suggest to his client that a gift be made to himself
or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly
susceptible to the charge that he unduly influenced or overreached the client.
If a client voluntarily offers to make a gift to his lawyer, the lawyer may
accept the gift, but before doing so, he should urge that his client secure
disinterested advice from an independent, competent person who is cognizant
of all the circumstances. Except in those instances in which the client is related
to the donee, a lawyer may not prepare an instrument by which the client gives
a gift to the lawyer or to a member of his family.
EC 5-6. A lawyer should not consciously influence a client to name him as executor,
trustee, or lawyer in an instrument. In those cases where a client wishes to
name his lawyer as such, care should be taken by the lawyer to avoid even the
appearance of impropriety.
EC 5-7. The possibility of an adverse effect upon the exercise of free judgment
by a lawyer on behalf of his client during litigation generally makes it undesirable
for the lawyer to acquire a proprietary interest in the cause of his client
or otherwise to become financially interested in the outcome of the litigation.
However, it is not improper for a lawyer to protect his right to collect a fee
for his services by the assertion of legally permissible liens, even though
by doing so he may acquire an interest in the outcome of litigation. Although
a contingent fee arrangement gives a lawyer a financial interest in the outcome
of litigation, a reasonable contingent fee is permissible in civil cases because
it may be the only means by which a layman can obtain the services of a lawyer
of his choice. But a lawyer, because he is in a better position to evaluate
a cause of action, should enter into a contingent fee arrangement only in those
instances where the arrangement will be beneficial to the client.
EC 5-8. A financial interest in the outcome of litigation also results if monetary
advances are made by the lawyer to his client. Although this assistance generally
is not encouraged, there are instances when it is not improper to provide the
costs of litigation on behalf of a client. For example, providing or guaranteeing
payment of the costs and expenses of litigation by a lawyer may be the only
way a client can enforce his cause of action, but the liability for such costs
and expenses must be that of the client.
EC 5-9. Occasionally a lawyer is called upon to decide in a particular case
whether he will be a witness or an advocate. If a lawyer is both counsel and
witness, he becomes more easily impeachable for interest and thus may be a less
effective witness. Conversely, the opposing counsel may be handicapped in challenging
the credibility of the lawyer when the lawyer also appears as an advocate in
the case. An advocate who becomes a witness is in the unseemly and ineffective
position of arguing his own credibility. The roles of an advocate and of a witness
are inconsistent; the function of an advocate is to advance or argue the cause
of another, while that of a witness is to state facts objectively.
EC 5-10. Problems incident to the lawyer-witness relationship arise at different
stages; they relate either to whether a lawyer should accept employment or should
withdraw from employment. Regardless of when the problem arises, his decision
is to be governed by the same basic considerations. It is not objectionable
for a lawyer who is a potential witness to be an advocate if it is unlikely
that he will be called as a witness because his testimony would be merely cumulative
or if his testimony will relate only to an uncontested issue. In the exceptional
situation where it will be manifestly unfair to the client for the lawyer to
refuse employment or to withdraw when he will likely be a witness on a contested
issue, he may serve as advocate even though he may be a witness. In making such
decision, he should determine the personal or financial sacrifice of the client
that may result from his refusal of employment or withdrawal therefrom, the
materiality of his testimony, and the effectiveness of his representation in
view of his personal involvement. In weighing these factors, it should be clear
that refusal or withdrawal will impose an unreasonable hardship upon the client
before the lawyer accepts or continues the employment. Where the question arises,
doubts should be resolved in favor of the lawyer testifying and against his
becoming or continuing as an advocate.
EC 5-11. A lawyer should not permit his personal interests to influence his
advice relative to a suggestion by his client that additional counsel be employed.
In like manner, his personal interests should not deter him from suggesting
that additional counsel be employed; on the contrary, he should be alert to
the desirability of recommending additional counsel when, in his judgment, the
proper representation of his client requires it. However, a lawyer should advise
his client not to employ additional counsel suggested by the client if the lawyer
believes that such employment would be a disservice to the client, and he should
disclose the reasons for his belief.
EC 5-12. Inability of co-counsel to agree on a matter vital to the representation
of their client requires that their disagreement be submitted by them jointly
to their client for his resolution, and the decision of the client shall control
the action to be taken.
EC 5-13. A lawyer should not maintain membership in or be influenced by any
organization of employees that undertakes to prescribe, direct, or suggest when
or how he should fulfill his professional obligations to a person or organization
that employs him as a lawyer. Although it is not necessarily improper for a
lawyer employed by a corporation or similar entity to be a member of an organization
of employees, he should be vigilant to safeguard his fidelity as a lawyer to
his employer, free from outside influences.
Interests of Multiple Clients.
EC 5-14. Maintaining the independence of professional judgment required of a
lawyer precludes his acceptance or continuation of employment that will adversely
affect his judgment on behalf of or dilute his loyalty to a client. This problem
arises whenever a lawyer is asked to represent two or more clients who may have
differing interests, whether such interests be conflicting, inconsistent, diverse,
or otherwise discordant.
EC 5-15. If a lawyer is requested to undertake or to continue representation
of multiple clients having potentially differing interests, he must weigh carefully
the possibility that his judgment may be impaired or his loyalty divided if
he accepts or continues the employment. He should resolve all doubts against
the propriety of the representation. A lawyer should never represent in litigation
multiple clients with differing interests, and there are few situations in which
he would be justified in representing in litigation multiple clients with potentially
differing interests. If a lawyer accepted such employment and the interests
did become actually differing, he would have to withdraw from employment with
likelihood of resulting hardship on the clients; and for this reason it is preferable
that he refuse the employment initially. On the other hand, there are many instances
in which a lawyer may properly serve multiple clients having potentially differing
interests in matters not involving litigation. If the interests vary only slightly,
it is generally likely that the lawyer will not be subjected to an adverse influence
and that he can retain his independent judgment on behalf of each client; and
if the interests become differing, withdrawal is less likely to have a disruptive
effect upon the causes of his clients.
EC 5-16. In those instances in which a lawyer is justified in representing two
or more clients having differing interests, it is nevertheless essential that
each client be given the opportunity to evaluate his need for representation
free of any potential conflict and to obtain other counsel if he so desires.
Thus before a lawyer may represent multiple clients, he should explain fully
to each client the implications of the common representation and should accept
or continue employment only if the clients consent. If there are present other
circumstances that might cause any of the multiple clients to question the undivided
loyalty of the lawyer, he should also advise all of the clients of those circumstances.
EC 5-17. Typically recurring situations involving potentially differing interests
are those in which a lawyer is asked to represent codefendants in a criminal
case, coplaintiffs in a personal injury case, an insured and his insurer, and
beneficiaries of the estate of a decedent. Whether a lawyer can fairly and adequately
protect the interests of multiple clients in these and similar situations depends
upon an analysis of each case. In certain circumstances, there may exist little
chance of the judgment of the lawyer being adversely affected by the slight
possibility that the interests will become actually differing; in other circumstances,
the chance of adverse effect upon his judgment is not unlikely.
EC 5-18. A lawyer employed or retained by a corporation or similar entity owes
his allegiance to the entity and not to a stockholder, director, officer, employee,
representative, or other person connected with the entity. In advising the entity,
a lawyer should keep paramount its interests and his professional judgment should
not be influenced by the personal desires of any person or organization. Occasionally
a lawyer for an entity is requested by a stockholder, director, officer, employee,
representative, or other person connected with the entity to represent him in
an individual capacity; in such case the lawyer may serve the individual only
if the lawyer is convinced that differing interests are not present.
EC 5-19. A lawyer may represent several clients whose interests are not actually
or potentially differing. Nevertheless, he should explain any circumstances
that might cause a client to question his undivided loyalty. Regardless of the
belief of a lawyer that he may properly represent multiple clients, he must
defer to a client who holds the contrary belief and withdraw from representation
of that client.
EC 5-20. A lawyer is often asked to serve as an impartial arbitrator or mediator
in matters which involve present or former clients. He may serve in either capacity
if he first discloses such present or former relationships. After a lawyer has
undertaken to act as an impartial arbitrator or mediator, he should not thereafter
represent in the dispute any of the parties involved.
Desires of Third Persons.
EC 5-21. The obligation of a lawyer to exercise professional judgment solely
on behalf of his client requires that he disregard the desires of others that
might impair his free judgment. The desires of a third person will seldom adversely
affect a lawyer unless that person is in a position to exert strong economic,
political, or social pressures upon the lawyer. These influences are often subtle,
and a lawyer must be alert to their existence. A lawyer subjected to outside
pressures should make full disclosure of them to his client and if he or his
client believes that the effectiveness of his representation has been or will
be impaired thereby, the lawyer should take proper steps to withdraw from representation
of his client.
EC 5-22. Economic, political, or social pressures by third persons are less
likely to impinge upon the independent judgment of a lawyer in a matter in which
he is compensated directly by his client and his professional work is exclusively
with his client. On the other hand, if a lawyer is compensated from a source
other than his client, he may feel a sense of responsibility to someone other
than his client.
EC 5-23. A person or organization that pays or furnishes lawyers to represent
others possesses a potential power to exert strong pressures against the independent
judgment of those lawyers. Some employers may be interested in furthering their
own economic, political, or social goals without regard to the professional
responsibility of the lawyer to his individual client. Others may be far more
concerned with establishment or extension of legal principles than in the immediate
protection of the rights of the lawyer's individual client. On some occasions,
decisions on priority of work may be made by the employer rather than the lawyer
with the result that prosecution of work already undertaken for clients is postponed
to their detriment. Similarly, an employer may seek, consciously or unconsciously,
to further its own economic interests through the actions of the lawyers employed
by it. Since a lawyer must always be free to exercise his professional judgment
without regard to the interests or motives of a third person, the lawyer who
is employed by one to represent another must constantly guard against erosion
of his professional freedom.
EC 5-24. To assist a lawyer in preserving his professional independence, a number
of courses are available to him. For example, a lawyer should not practice with
or in the form of a professional legal corporation, even though the corporate
form is permitted by law, if any director or stockholder of it is a nonlawyer.
Although a lawyer may be employed by a business corporation with nonlawyers
serving as directors or officers, and they necessarily have the right to make
decisions of business policy, a lawyer must decline to accept direction of his
professional judgment from any layman. Various types of legal aid offices are
administered by boards of directors composed of lawyers and laymen. A lawyer
should not accept employment from such an organization unless the board sets
only broad policies and there is no interference in the relationship of the
lawyer and the individual client he serves. Where a lawyer is employed by an
organization, a written agreement that defines the relationship between him
and the organization and provides for his independence is desirable since it
may serve to prevent misunderstanding as to their respective roles. Although
other innovations in the means of supplying legal counsel may develop, the responsibility
of the lawyer to maintain his professional independence remains constant, and
the legal profession must ensure that changing circumstances do not result in
loss of the professional independence of the lawyer.
CANON 6.
A Lawyer Should Represent a Client Competently.
DISCIPLINARY RULES.
DR 6-101. Competence and Promptness.
(A) A lawyer shall undertake representation only in matters in which:
(1) The lawyer can act with competence and demonstrate the specific legal knowledge,
skill, efficiency, and thoroughness in preparation employed in acceptable practice
by lawyers undertaking similar matters, or
(2) The lawyer has associated with another lawyer who is competent in those
matters.
(B) A lawyer shall attend promptly to matters undertaken for a client until
completed or until the lawyer has properly and completely withdrawn from representing
the client.
(C) A lawyer shall keep a client reasonably informed about matters in which
the lawyer's services are being rendered.
(D) A lawyer shall inform his client of facts pertinent to the matter and of
communications from another party that may significantly affect settlement or
resolution of the matter.
DR 6-102. Limiting Liability to Client.
(A) A lawyer shall not limit his liability to his client for his personal malpractice.
ETHICAL CONSIDERATIONS.
EC 6-1. Because of his vital role in the legal process, a lawyer should act
with competence and proper care in representing clients. He should strive to
become and remain proficient in his practice and should accept employment only
in matters which he is or intends to become competent to handle.
EC 6-2. A lawyer is aided in attaining and maintaining competence by keeping
abreast of current legal literature and developments, participating in continuing
legal education programs, concentrating in particular areas of the law, and
by utilizing other available means. He has the additional ethical obligation
to assist in improving the legal profession, and he may do so by participating
in bar activities intended to advance the quality and standards of members of
the profession. Of particular importance is the careful training of his younger
associates and the giving of sound guidance to all lawyers who consult him.
In short, a lawyer should strive at all levels to aid the legal profession in
advancing the highest possible standards of integrity and competence and to
meet those standards himself.
EC 6-3. While the licensing of a lawyer is evidence that he has met the standards
then prevailing for admission to the bar, a lawyer generally should not accept
employment in any area of the law in which he is not qualified. However, he
may accept such employment if in good faith he expects to become qualified through
study and investigation, as long as such preparation would not result in unreasonable
delay or expense to his client. Proper preparation and representation may require
the association by the lawyer of professionals in other disciplines. A lawyer
offered employment in a matter in which he is not and does not expect to become
so qualified should either decline the employment or, with the consent of his
client, accept the employment and associate a lawyer who is competent in the
matter.
EC 6-4. Having undertaken representation, a lawyer should use proper care to
safeguard the interests of his client. If a lawyer has accepted employment in
a matter beyond his competence but in which he expects to become competent,
he should diligently undertake the work and study necessary to qualify himself.
In addition to being qualified to handle a particular matter, his obligation
to his client requires him to prepare adequately for and give appropriate attention
to his legal work.
EC 6-5. A lawyer should have pride in his professional endeavors. His obligation
to act competently calls for higher motivation than that arising from fear of
civil liability or disciplinary penalty.
EC 6-6. A lawyer should not seek, by contract or other means, to limit his individual
liability to his client for his malpractice. A lawyer who handles the affairs
of his client properly has no need to attempt to limit his liability for his
professional activities and one who does not handle the affairs of his client
properly should not be permitted to do so. A lawyer who is a stockholder in
or is associated with a professional legal corporation may, however, limit his
liability for malpractice of his associates in the corporation, but only to
the extent permitted by law.
CANON 7.
A Lawyer Should Represent
a Client Zealously Within the Bounds of the Law
DISCIPLINARY RULES.
DR 7-101. Representing a Client Zealously.
(A) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of his client through reasonably available
means permitted by law and the Disciplinary Rules, except as provided by DR
7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding
to reasonable requests of opposing counsel which do not prejudice the rights
of his client, by being punctual in fulfilling all professional commitments,
by avoiding offensive tactics, or by treating with courtesy and consideration
all persons involved in the legal process.
(2) Fail to carry out a contract of employment entered into with a client for
professional services, but he may withdraw as permitted under DR 2-108, DR 5-102,
and DR 5-105.
(3) Prejudice or damage his client during the course of the professional relationship,
except as required under DR 4-101(D)
(B) In his representation of a client, a lawyer may:
(1) With the express or implied authority of his client, exercise his professional
judgment to limit or vary his client's objectives and waive or fail to assert
a right or position of his client.
(2) Refuse to aid or participate in conduct or pursue an objective which he
believes to be unlawful or which is repugnant or imprudent and, if the client
insists, withdraw pursuant to the provisions of DR 2-108.
DR 7-102. Representing a Client Within the Bounds
of the Law.
(A) In his representation of a client, a lawyer shall not:
(1) File a suit, initiate criminal charges, assert a position, conduct a defense,
delay a trial, or take other action on behalf of his client when he knows or
when it is obvious that such action would serve merely to harass or maliciously
injure another.
(2) Knowingly advance a claim or defense that is unwarranted under existing
law, except that he may advance such claim or defense if it can be supported
by good faith argument for an extension, modification, or reversal of existing
law.
(3) Conceal or knowingly fail to disclose that which he is required by law to
reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he knows or
it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal
or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary
Rule.
(B) A lawyer who receives information clearly establishing that:
(1) A person other than his client has perpetrated a fraud upon a tribunal shall
promptly reveal the fraud to the tribunal.
DR 7-103. Communicating with One of Adverse Interest.
(A) During the course of his representation of a client, a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation
with a party he knows to be represented by a lawyer in that matter unless he
has the prior consent of the lawyer representing such other party or is authorized
by law to do so.
(2) Give advice to a person who is not represented by a lawyer, other than the
advice to secure counsel, if the interests of such person are or have a reasonable
possibility of being in conflict with the interests of his client.
(B) In dealing on behalf of a client with a person who is not represented by
counsel, a lawyer shall not state or imply that the lawyer is disinterested.
When the lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyer's role in the matter, the lawyer shall make reasonable
efforts to correct the misunderstanding.
DR 7-104. Threatening Criminal Prosecution.
(A) A lawyer shall not present, participate in presenting, or threaten to present
criminal or disciplinary charges solely to obtain an advantage in a civil matter.
DR 7-105. Trial Conduct.
(A) A lawyer shall not disregard or advise his client to disregard a standing
rule of a tribunal or a ruling of a tribunal made in the course of a proceeding,
but he may take appropriate steps in good faith to test the validity of such
rule or ruling.
(B) In presenting a matter to a tribunal, a lawyer shall disclose:
(1) That he appears in a representative capacity.
(C) In appearing in his professional capacity before a tribunal, a lawyer shall
not:
(1) State or allude to any matter that he has no reasonable basis to believe
is relevant to the case or that will not be supported by admissible evidence.
(2) Ask any question that he has no reasonable basis to believe is relevant
to the case and that is intended to degrade a witness or other person.
(3) Assert his personal knowledge of the facts in issue, except when testifying
as a witness.
(4) Assert his personal opinion as to the justness of a cause, as to the credibility
of a witness, as to the culpability of a civil litigant, or as to the guilt
or innocence of an accused; but he may argue, on his analysis of the evidence,
for any position or conclusion with respect to the matters stated herein.
(5) Intentionally or habitually violate any established rule of procedure or
of evidence, where such conduct is disruptive of the proceedings.
(6) A lawyer shall not knowingly offer evidence that the lawyer knows to be
false. If a lawyer has offered material evidence and comes to know of its falsity,
the lawyer shall take reasonable remedial measures.
DR 7-106. Trial Publicity.
(A) A lawyer participating in or associated with the investigation or the prosecution
or the defense of a criminal matter that may be tried by a jury shall not make
or participate in making an extra-judicial statement that a reasonable person
would expect to be disseminated by means of public communication that he knows,
or should know, constitutes a clear and present danger of interfering with the
fairness of the trial by a jury.
(B) A lawyer shall exercise reasonable care to prevent his employees and associates
from making an extra-judicial statement that he would be prohibited from making
under DR 7-106.
DR 7-107. Communication with or Investigation of
Jurors.
(A) Before or during the trial of a case, a lawyer connected therewith shall
not, directly or indirectly, communicate with a juror or anyone he knows to
be a member of the venire from which the jury will be selected for the trial
of the case, except as permitted by law.
(B) DR 7-107(A) does not prohibit a lawyer from communicating with veniremen
or jurors in the course of official proceedings.
(C) After discharge of the jury from further consideration of a case with which
the lawyer was connected, the lawyer shall not ask questions of or make comments
to a member of that jury that are calculated merely to harass or embarrass the
juror or to influence his actions in future jury service.
(D) A lawyer shall not conduct or cause, by financial support or otherwise,
another to conduct a vexatious or harassing investigation of either a venireman
or a juror.
(E) All restrictions imposed by DR 7-107 upon a lawyer also apply to communications
with or investigations of members of the immediate family or household of a
venireman or a juror.
(F) A lawyer shall reveal promptly to the court improper conduct by a venireman
or a juror, or by another toward a venireman or a juror or a member of his family,
of which the lawyer has knowledge.
DR 7-108. Contact with Witnesses.
(A) A lawyer shall not suppress any evidence that he or his client has a legal
obligation to reveal or produce.
(B) A lawyer shall not advise or cause a person to secrete himself or to leave
the jurisdiction of a tribunal for the purpose of making him unavailable as
a witness therein.
(C) A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation
to a witness contingent upon the content of his testimony or the outcome of
the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:
(1) Expenses reasonably incurred by a witness in attending or testifying.
(2) Reasonable compensation to a witness for his loss of time in attending or
testifying.
(3) A reasonable fee for the professional services of an expert witness.
DR 7-109. Contact with Officials.
(A) A lawyer shall not give or lend anything of value to a judge, official,
or employee of a tribunal under circumstances which might give the appearance
that the gift or loan is made to influence official action.
(B) In an adversary proceeding, a lawyer shall not communicate, or cause another
to communicate, as to the merits of the cause with a judge or an official before
whom the proceeding is pending, except:
(1) In the course of official proceedings in the cause.
(2) In writing if he promptly delivers a copy of the writing to opposing counsel
or to the adverse party if he is not represented by a lawyer.
(3) Orally upon adequate notice to opposing counsel or to the adverse party
if he is not represented by a lawyer.
(4) As otherwise authorized by law.
ETHICAL CONSIDERATIONS.
EC 7-1. The duty of a lawyer, both to his client and to the legal system, is
to represent his client zealously within the bounds of the law, which includes
Disciplinary Rules and enforceable professional regulations. The professional
responsibility of a lawyer derives from his membership in a profession which
has the duty of assisting members of the public to secure and protect available
legal rights and benefits. In our government of laws and not of men, each member
of our society is entitled to have his conduct judged and regulated in accordance
with the law; to seek any lawful objective through legally permissible means;
and to present for adjudication any lawful claim, issue, or defense.
EC 7-2. The bounds of the law in a given case are often difficult to ascertain.
The language of legislative enactments and judicial opinions may be uncertain
as applied to varying factual situations. The limits and specific meaning of
apparently relevant law may be made doubtful by changing or developing constitutional
interpretations, inadequately expressed statutes or judicial opinions, and changing
public and judicial attitudes. Certainty of law ranges from well-settled rules
through areas of conflicting authority to areas without precedent.
EC 7-3. Where the bounds of law are uncertain, the action of a lawyer may depend
on whether he is serving as advocate or adviser. A lawyer may serve simultaneously
as both advocate and adviser, but the two roles are essentially different. In
asserting a position on behalf of his client, an advocate for the most part
deals with past conduct and must take the facts as he finds them. By contrast,
a lawyer serving as adviser primarily assists his client in determining the
course of future conduct and relationships. While serving as advocate, a lawyer
should resolve in favor of his client doubts as to the bounds of the law. In
serving a client as adviser, a lawyer in appropriate circumstances should give
his professional opinion as to what the ultimate decisions of the courts would
likely be as to the applicable law.
Duty of the Lawyer to a Client.
EC 7-4. The advocate may urge any permissible construction of the law favorable
to his client, without regard to his professional opinion as to the likelihood
that the construction will ultimately prevail. His conduct is within the bounds
of the law, and therefore permissible, if the position taken is supported by
the law or is supportable by a good faith argument f