of one or more of the listed characteristics; or to cause or attempt to cause The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements. When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. The total of the trial balance must agree with the control figure computed by taking the beginning balance, adding the total of monies received in trust for the client, and deducting the total of all moneys disbursed. as belonging to a client, former client, third party, or the lawyer or law When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer should make reasonable efforts to correct the misunderstanding. Moreover, the lawyer must obtain the client's informed consent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client as set forth in paragraph (c). Accordingly, legal aid offices, lawyer referral services and other related programs have been developed, and others will be developed by the profession and government. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest. Any such limitations which are material to the evaluation should be described in the report. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others. IOLTA Board shall maintain a sufficient reserve to pay all claims for such That legal question is beyond the scope of this Rule. Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. 2007-2023 The Disciplinary Board of the Supreme Court of Pennsylvania. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer's obligations are determined by law, having reference to the terms of the client's agreement and the surrounding circumstances. A lawyer shall not deposit the lawyers own funds in a Trust Account except for the sole purpose of paying service charges on that account, and only in an amount necessary for that purpose. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter unless: the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and. A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. See Rules 1.1, 5.1, and 5.3. This Rule prevents a lawyer from circumventing the Rules of Professional Conduct by using a lawyer referral service or similar organization which would not be subject to the Rules of Professional Conduct. 2925. A lawyer shall abide by a client's decision whether to settle a matter. See also Rules 1.2, 1.4, 1.6, and 5.5(a). An IOLTA Account is an income producing Trust Account from which funds may be withdrawn upon request as soon as permitted by law. Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way compatible with the professional obligations of the lawyer. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. An ownership structure with more than one level will be permissible as long as all of the beneficial owners (as opposed to record owners) are lawyers, subject to the exception for estate administration. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. 2 Amended May 4, 2021 . Paragraphs (b) and (c) contemplate a screening arrangement. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. See also Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of non-lawyers and Rule 8.4(a). Paragraph (c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule. Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent; or. See Rule 1.2(c). Sexual relationships that predate the client-lawyer relationship are not prohibited. This Rule represents a balancing of interests. Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyers client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding. unsuccessful, a lawyer or law firms reasonable efforts include efforts similar If the lawyer's services are being used by an organization to further a crime or fraud by the organization, Rule 1.2(d) can be applicable. The fact that the client was independently represented in the transaction is relevant in determining whether the agreement was fair and reasonable to the client as paragraph (a)(1) further requires. Nonqualified Funds other than Fiduciary Funds are to be placed in a Non-IOLTA Account, as defined in paragraph (a)(7), in an Eligible Institution, as defined in paragraph (a)(1), unless the client or third person specifically agrees to another investment vehicle for the benefit of the client or third person. A lawyer should not be in a position where benefit to the other client might affect performance of the lawyer's professional functions on behalf of the government. It has been updated to make any references to the Code of Ethics consistent with the Code of Ethics (2016). Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule. A lawyer may condition a consultation with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyers representation at any time. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. No single method is provided for the giving of written notice to the client under paragraph (c). In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. A person who participates in an initial consultation, or communicates information, with the intent to disqualify a lawyer from representing a client with materially adverse interests is not entitled to the protections of paragraphs (b) or (c) of this Rule. (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Paragraph (i) ensures that a client has received a disclosure as to whether the lawyer he or she ultimately chooses maintains a primary practice located outside of the clients own city, town or county. Perhaps no professional shortcoming is more widely resented than procrastination. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: the testimony relates to an uncontested issue; the testimony relates to the nature and value of legal services rendered in the case; or. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. A person's belief may be inferred from circumstances. At some point it may be useful or essential to obtain an independent legal opinion. Paragraph (b) prohibits the lawyer from using or revealing significantly harmful information, except as permitted by Rule 1.9, even if the client or lawyer decides not to proceed with the representation. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. See Rules 1.2 and 1.4. The sale may not be financed by increases in fees charged to the clients of the practice. The obligations of a lawyer under this Rule apply when the lawyer has come into possession of property of clients or third persons because the lawyer is acting or has acted as a lawyer in a client-lawyer relationship, or when the lawyer is acting as a Fiduciary, or as an escrow agent, a settlement agent or a representative payee, or as an agent, having been designated as such by a client or having been so selected as a result of a client-lawyer relationship or the lawyers status as such. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. account or the Pennsylvania IOLTA account of a deceased lawyer whose estate is Competent representation can also be provided through the association of a lawyer of established competence in the field in question. This Rule does not require a Fiduciary to liquidate entrusted investments or investments made in accordance with applicable law or a governing instrument or to transfer non-income producing fiduciary account balances to an IOLTA Account. This Rule governs all communications about a lawyers services, including advertising permitted by Rule 7.2. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client. Paragraph (a) operates only among the lawyers currently associated in a firm. A public prosecutor or other governmental lawyer shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury or other tribunal investigating criminal activity in circumstances where the prosecutor or other governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness. Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. While lawyers are associated in a firm, a prohibition in paragraphs (a) through (i) of Rule 1.8 that applies to any one of them shall apply to all of them. A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that persons jurisdiction. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Whether a conflict is consentable depends on the circumstances. There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. "Reasonable belief" or "Reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. The conflict in effect forecloses alternatives that would otherwise be available to the client. The result in First Bank & Trust Co. v. Zagoria, 250 Ga. 844, 302 S.E.2d 674 (1983), and similar cases is rejected. Return to private practice as a result of an unanticipated change in circumstances does not necessarily result in a violation. nature that is unwelcome. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. unclaimed or unidentifiable IOLTA fund requirements in this subsection. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. any other matter covered by the conflict of interest rules of the appropriate government agency. Notification of receipt of Fiduciary Funds or property to clients or other persons with a beneficial interest in such Fiduciary Funds or property shall continue to be governed by the law, procedure and rules governing the requirements of confidentiality and notice applicable to the Fiduciary entrustment. It is up to the seller to determine the most effective and efficient means for doing so. Thus, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. Rules of Professional Conduct Rule 1.8: Conflict of interest: Current clients: Specific rules Table of Contents (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b). The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. A lawyer may not withhold information to serve the lawyer's own interests or convenience or the interests or convenience of another person. ethnicity, disability, age, sexual orientation, marital status, or 2281 (1990). Thus, the seller may be represented by a non-lawyer representative not subject to these Rules. If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; However, because the conflict of interest is governed by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public relations personnel, business development staff and website designers. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. The Preamble and this note on Scope provide general orientation. A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm. The Board of Ethics reviews Issues in Ethics statements periodically to ensure that . 177, No. Subject to the requirements of Rule 7.1, a lawyer may advertise services through written, recorded or electronic communications, including public media, not within the purview of Rule 7.3. In some cases, the risk may be so severe that the conflict may not be cured by client consent. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service. Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality. Where human life is threatened, the client is or has been engaged in criminal or fraudulent conduct, or the integrity of the lawyer's own conduct is involved, the principle of confidentiality may have to yield, depending on the lawyer's knowledge about and relationship to the conduct in question. A client may expressly or impliedly ask the lawyer for purely technical advice. The risk of such confusion is especially acute when the lawyer renders both types of services with respect to the same matter. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acts at the direction of another person. Firms, whether large or small, may also rely on continuing legal education in professional ethics. The right to defend also applies, of course, where a proceeding has been commenced. either house of the Legislature, regulation promulgated by the Executive Branch Implicit in paragraph (d)(4) is a recognition that, so long as the owners have the personal liability preserved by the professional corporation law, a limitation on other personal liability is appropriate and should be respected. It is a means through the collective efforts of the bar to reimburse persons who have lost money or property as a result of dishonest conduct of a lawyer. This Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyers client is presenting evidence or argument. As fees become earned, the lawyer must promptly transfer those funds to the operating account. A lawyer shall act with reasonable diligence and promptness in representing a client. The Rules of Professional Conduct are rules of reason. If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. See also Comments [5] and [29]. Even in the absence of organization policy, however, the lawyer may have an obligation to refer a matter to higher authority, depending on the seriousness of the matter and whether the constituent in question has apparent motives to act at variance with the organization's interest. Other Rules define the nature of relationships between the lawyer and others. the client or the cause is so repugnant to the lawyer as to be likely to impair the clientlawyer relationship or the lawyer's ability to represent the client. of the disposition of unclaimed or unidentifiable funds and make such records In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. The contents of direct in-person, live telephone or real-time electronic contact can be disputed and may not be subject to third-party scrutiny. A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. Agreements prospectively limiting a lawyer's liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer, the representation involves a conflict of interest that requires compliance with Rule 1.7. Under Rule 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here. As stated in paragraph (c), such arrangements should not interfere with the lawyers professional judgment. Representation in such matters is governed by Rules 4.1 through 4.4. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. For this paragraph to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Second, the Rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. This Issues in Ethics statement is a revision of Conflicts of Professional Interest (originally published in 2004 and revised in 2011). Seventh, a lawyers confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyers personal responsibility to comply with these Rules. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer's responsibilities to third persons and the duty to disseminate the findings. law firms relationship with the client, former client, or third party. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage. Reporting a violation is especially important where the victim is unlikely to discover the offense. Rule 1.8(a) requires that a client's consent be obtained in a writing signed by the client. courthouse records, voter registration records, local tax records, motor As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.