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(effective July 1, 2003)
Please note there is an order amending Comment to Rule 1.17 of the Delaware Lawyers' Rules of Professional Conduct.
Preamble: A lawyer's responsibilities.
[1] A lawyer, as a member of the legal profession, is a representative of
clients, an officer of the legalsystem and a public citizen having special
responsibility for the quality of justice.
[2] As a representative of clients, a lawyer performs various functions. As
advisor, a lawyer provides a client with an informed understanding of the
client's legal rights and obligations and explains their practical
implications. As advocate, a lawyer zealously asserts the client's position
under the rules of the adversary system. As negotiator, a lawyer seeks a result
advantageous to the client but consistent with requirements of honest dealings
with others. As an evaluator, a lawyer acts by examining a client's legal
affairs and reporting about them to the client or to others.
[3] In addition to these representational functions, a lawyer may serve as a
third-party neutral, a nonrepresentational role helping the parties to resolve
a dispute or other matter. Some of these Rules apply directly to lawyers who
are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In
addition, there are Rules that apply to lawyers who are not active in the
practice of law or to practicing lawyers even when they are acting in a
nonprofessional capacity. For example, a lawyer who commits fraud in the
conduct of a business is subject to discipline for engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
[4] In all professional functions a lawyer should be competent, prompt and
diligent. A lawyer should maintain communication with a client concerning the
representation. A lawyer should keep in confidence information relating to
representation of a client except so far as disclosure is required or permitted
by the Rules of Professional Conduct or other law.
[5] A lawyer's conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer's business and personal
affairs. A lawyer should use the law's procedures only for legitimate purposes
and not to harass or intimidate others. A lawyer should demonstrate respect for
the legal system and for those who serve it, including judges, other lawyers
and public officials. While it is a lawyer's duty, when necessary, to challenge
the rectitude of official action, it is also a lawyer's duty to uphold legal
process.
[6] As a public citizen, a lawyer should seek improvement of the law, access to
the legal system, the administration of justice and the quality of service
rendered by the legal profession. As a member of a learned profession, a lawyer
should cultivate knowledge of the law beyond its use for clients, employ that
knowledge in reform of the law and work to strengthen legal education. In
addition, a lawyer should further the public's understanding of and confidence
in the rule of law and the justice system because legal institutions in a
constitutional democracy depend on popular participation and support to
maintain their authority. A lawyer should be mindful of deficiencies in the
administration of justice and of the fact that the poor, and sometimes persons
who are not poor, cannot afford adequate legal assistance. Therefore, all
lawyers should devote professional time and resources and use civic influence
to ensure equal access to our system of justice for all those who because of
economic or social barriers cannot afford or secure adequate legal counsel. A
lawyer should aid the legal profession in pursuing these objectives and should
help the bar regulate itself in the public interest.
[7] Many of a lawyer's professional responsibilities are prescribed in the
Rules of Professional Conduct, as well as substantive and procedural law.
However, a lawyer is also guided by personal conscience and the approbation of
professional peers. 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.
[8] A lawyer's responsibilities as a representative of clients, an officer of
the legal system and a public citizen are usually harmonious. Thus, when an
opposing party is well represented, a lawyer can be a zealous advocate on
behalf of a client and at the same time assume that justice is being done. So
also, a lawyer can be sure that preserving client confidences ordinarily serves
the public interest because people are more likely to seek legal advice, and
thereby heed their legal obligations, when they know their communications will
be private.
[9] In the nature of law practice, however, conflicting responsibilities are
encountered. Virtually all difficult ethical problems arise from conflict
between a lawyer's responsibilities to clients, to the legal system and to the
lawyer's own interest in remaining an ethical person while earning a
satisfactory living. The Rules of Professional conduct often prescribe terms
for resolving such conflicts. Within the framework of these Rules, however,
many difficult issues of professional discretion can arise. Such issues must be
resolved through the exercise of sensitive professional and moral judgment
guided by the basic principles underlying the Rules. These principles include
the lawyer's obligation zealously to protect and pursue a client's legitimate
interests, within the bounds of the law, while maintaining a professional,
courteous and civil attitude toward all persons involved in the legal system.
[10] The legal profession is largely self-governing. Although other professions
also have been granted powers of self-government, the legal profession is
unique in this respect because of the close relationship between the profession
and the processes of government and law enforcement. This connection is
manifested in the fact that ultimate authority over the legal profession is
vested largely in the courts.
[11] To the extent that lawyers meet the obligations of their professional
calling, the occasion for government regulation is obviated. Self-regulation
also helps maintain the legal profession's independence from government
domination. An independent legal profession is an important force in preserving
government under law, for abuse of legal authority is more readily challenged
by a profession whose members are not dependent on government for the right to
practice.
[12] The legal profession's relative autonomy carries with it special
responsibilities of self-government. The profession has a responsibility to
assure that its regulations are conceived in the public interest and not in
furtherance of parochial or self interested concerns of the bar. Every lawyer
is responsible for observance of the Rules of Professional Conduct. A lawyer
should also aid in securing their observance by other lawyers. Neglect of these
responsibilities compromises the independence of the profession and the public
interest which it serves.
[13] Lawyers play a vital role in the preservation of society. The fulfillment
of this role requires an understanding by lawyers of their relationship to our
legal system. The Rules of Professional Conduct, when properly applied, serve
to define that relationship.
SCOPE
[14] The Rules of Professional Conduct are rules of reason. They should be
interpreted with reference to the purposes of legal representation and of the
law itself. Some of the Rules are imperatives, cast in the terms "shall" or
"shall not." These define proper conduct for purposes of professional
discipline. Others, generally cast in the term "may," are permissive and define
areas under the Rules in which the lawyer has discretion to exercise
professional judgment. No disciplinary action should be taken when the lawyer
chooses not to act or acts within the bounds of such discretion. Other Rules
define the nature of relationships between the lawyer and others. The Rules are
thus partly obligatory and disciplinary and partly constitutive and descriptive
in that they define a lawyer's professional role. Many of the Comments use the
term "should." Comments do not add obligations to the Rules but provide
guidance for practicing in compliance with the Rules.
[15] The Rules presuppose a larger legal context shaping the lawyer's role.
That context includes court rules and statutes relating to matters of
licensure, laws defining specific obligations of lawyers and substantive and
procedural law in general. The Comments are sometimes used to alert lawyers to
their responsibilities under such other law.
[16] Compliance with the Rules, as with all law in an open society, depends
primarily upon understanding and voluntary compliance, secondarily upon
reenforcement by peer and public opinion and finally, when necessary, upon
enforcement through disciplinary proceedings. The Rules do not, however,
exhaust the moral and ethical considerations that should inform a lawyer, for
no worthwhile human activity can be completely defined by legal rules. The
Rules simply provide a framework for the ethical practice of law.
[17] Furthermore, for purposes of determining the lawyer's authority and
responsibility, principles of substantive law external to these Rules determine
whether a client-lawyer relationship exists. Most of the duties flowing from
the client-lawyer relationship attach only after the client has requested the
lawyer to render legal services and the lawyer has agreed to do so. But there
are some duties, such as that of confidentiality under Rule 1.6, that attach
when the lawyer agrees to consider whether a client-lawyer relationship shall
be established. See Rule 1.18. Whether a client-lawyer relationship exists for
any specific purpose can depend on the circumstances and may be a question of
fact.
[18] Under various legal provisions, including constitutional, statutory and
common law, the responsibilities of government lawyers may include authority
concerning legal matters that ordinarily reposes in the client in private
client-lawyer relationships. For example, a lawyer for a government agency may
have authority on behalf of the government to decide upon settlement or whether
to appeal from an adverse judgment. Such authority in various respects is
generally vested in the attorney general and the state's attorney in state
government, and their federal counterparts, and the same may be true of other
government law officers. Also, lawyers under the supervision of these officers
may be authorized to represent several government agencies in intragovernmental
legal controversies in circumstances where a private lawyer could not represent
multiple private clients. These Rules do not abrogate any such authority.
[19] Failure to comply with an obligation or prohibition imposed by a Rule is a
basis for invoking the disciplinary process. The Rules presuppose that
disciplinary assessment of a lawyer's conduct will be made on the basis of the
facts and circumstances as they existed at the time of the conduct in question
and in recognition of the fact that a lawyer often has to act upon uncertain or
incomplete evidence of the situation. Moreover, the Rules presuppose that
whether or not discipline should be imposed for a violation, and the severity
of a sanction, depend on all the circumstances, such as the willfulness and
seriousness of the violation, extenuating factors and whether there have been
previous violations.
[20] Violation of a Rule should not itself give rise to a cause of action
against a lawyer nor should it create any presumption in such a case that a
legal duty has been breached. In addition, violation of a Rule does not
necessarily warrant any other nondisciplinary remedy, such as disqualification
of a lawyer in pending litigation. The rules are designed to provide guidance
to lawyers and to provide a structure for regulating conduct through
disciplinary agencies. They are not designed to be a basis for civil liability.
Furthermore, the purpose of the Rules can be subverted when they are invoked by
opposing parties as procedural weapons. The fact that a Rule is a just basis
for a lawyer's self-assessment, or for sanctioning a lawyer under the
administration of a disciplinary authority, does not imply that an antagonist
in a collateral proceeding or transaction has standing to seek enforcement of
the Rule.
[21] The Comment accompanying each Rule explains and illustrates the meaning
and purpose of the Rule. The Preamble and this note on Scope provide general
orientation. The Comments are intended as guides to interpretation, but the
text of each rule is authoritative.
Rule 1.0. Terminology.
(a) "Belief" or "believes" denotes that the person
involved actually supposed the fact in question to be true. A person's belief
may be inferred from circumstances.
(b) "Confirmed in writing," when used in reference to the
informed consent of a person, denotes informed consent that is given in writing
by the person or a writing that a lawyer promptly transmits to the person
confirming an oral informed consent. See paragraph (e) for the definition of
"informed consent." If it is not feasible to obtain or transmit the writing at
the time the person gives informed consent, then the lawyer must obtain or
transmit it within a reasonable time thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a
law partnership, professional corporation, sole proprietorship or other
association authorized to practice law; or lawyers employed in a legal services
organization or the legal department of a corporation or other organization.
(d) "Fraud" or "fraudulent" denotes conduct that is
fraudulent under the substantive or procedural law of the applicable
jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the agreement by a person
to a proposed course of conduct after the lawyer has communicated adequate
information and explanation about the material risks of and reasonably
available alternatives to the proposed course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual
knowledge of the fact in question. A person's knowledge may be inferred from
circumstances.
(g) "Partner" denotes a member of a partnership, a
shareholder in a law firm organized as a professional corporation, or a member
of an association authorized to practice law.
(h) "Reasonable" or "reasonably" when used in relation to
conduct by a lawyer denotes the conduct of a reasonably prudent and competent
lawyer.
(i) "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.
(j) "Reasonably should know" when used in reference to a
lawyer denotes that a lawyer of reasonable prudence and competence would
ascertain the matter in question.
(k) "Screened" denotes the isolation of a lawyer from any
participation in a matter through the timely imposition of procedures within a
firm that are reasonably adequate under the circumstances to protect
information that the isolated lawyer is obligated to protect under these Rules
or other law.
(l) "Substantial" when used in reference to degree or
extent denotes a material matter of clear and weighty importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding
arbitration proceeding or a legislative body, administrative agency or other
body acting in an adjudicative capacity. 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.
(n) "Writing" or "written" denotes a tangible or
electronic record of a communication or representation, including handwriting,
typewriting, printing, photostating, photography, audio or video recording and
e-mail. A "signed" writing includes an electronic sound, symbol or process
attached to or logically associated with a writing and executed or adopted by a
person with the intent to sign the writing.
Rule 1.1. Competence.
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
Rule 1.2 Scope of Representation.
(a) Subject to paragraphs (c) and (d), a lawyer shall
abide by a client's decisions concerning the objectives of representation and,
as required by Rule 1.4, shall consult with the client as to the means by which
they are to be pursued. A lawyer may take such action on behalf of the client
as is impliedly authorized to carry out the representation. A lawyer shall
abide by a client's decision whether to settle a matter. In a criminal case,
the lawyer shall abide by the client's decision, after consultation with the
lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.
(b) A lawyer's representation of a client, including
representation by appointment, does not constitute an endorsement of the
client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if
the limitation is reasonable under the circumstances and the client gives
informed consent.
(d) A lawyer shall not counsel a client to engage, or
assist a client, in conduct that the lawyer knows is criminal or fraudulent,
but a lawyer may discuss the legal consequences of any proposed course of
conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.
Rule 1.3. Diligence.
A lawyer shall act with reasonable diligence and promptness in representing a
client.
Rule 1.4. Communication.
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to
which the client's informed consent, as defined in Rule 1.0(e), is required by
these Rules;
(2) reasonably consult with the client about the means by which the client's
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's
conduct when the lawyer knows that the client expects assistance not permitted
by the Rules of Professional Conduct or other law.(b)
A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
Rule 1.5. Fees.
(a) A lawyer shall not
make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining
the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing
the services;
(8) whether the fee is fixed or contingent.
(b) The scope of the
representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client, preferably in
writing, before or within a reasonable time after commencing the
representation, except when the lawyer will charge a regularly represented
client on the same basis or rate. Any changes in the basis or rate of the fee
or expenses shall also be communicated to the client.
(c) The scope of the
representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client, preferably in
writing, before or within a reasonable time after commencing the
representation, except when the lawyer will charge a regularly represented
client on the same basis or rate. Any changes in the basis or rate of the fee
or expenses shall also be communicated to the client.
(d) A lawyer shall not
enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or upon the amount of alimony or
support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of fee
between lawyers who are not in the same firm may be made only if:
(1) the client is advised in writing of and does not object to the
participation of all the lawyers involved;
(2) the total fee is reasonable.(f) A
lawyer may require the client to pay some or all of the fee in advance of the
lawyer undertaking the representation, provided that:
(1) The lawyer shall provide the client with a written statement that the fee
is refundable if it is not earned,
(2) The written statement shall state the basis under which the fees shall be
considered to have been earned, whether in whole or in part, and
(3) All unearned fees shall be retained in the lawyer's trust account, with
statement of the fees earned provided to the client at the time such funds are
withdrawn from the trust account.
Rule 1.6. Confidentiality of Information.
(a) A lawyer shall not reveal information relating to the
representation of a client unless the client gives informed consent, the
disclosure is impliedly authorized in order to carry out the representation, or
the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably
certain to result in substantial injury to the financial interests or property
of another and in furtherance of which the client has used or is using the
lawyer's services;
(3) to prevent, mitigate, or rectify substantial injury to the financial
interests or property of another that is reasonably certain to result or has
resulted from the client's commission of a crime or fraud in furtherance of
which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge
or civil claim against the lawyer based upon conduct in which the client was
involved, or to respond to allegations in any proceeding concerning the
lawyer's representation of the client;
(6) to comply with other law or a court order.
Rule 1.7. Conflict of Interest: Current Clients.
(a) Except as provided in paragraph (b), a lawyer shall
not represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(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.
(b) Notwithstanding the existence of a concurrent conflict
of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Rule 1.8. Conflict of Interest: Current Clients: Specific
Rules.
(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:
(1) the transaction and terms on which the lawyer acquires the interest are
fair and reasonable to the client and are fully disclosed and transmitted in
writing to the client in a manner that can be reasonably understood by the
client;
2) the client is advised in writing of the desirability of seeking and is given
a reasonable opportunity to seek the advice of independent legal counsel on the
transaction;
(3) the client gives informed consent, in a writing signed by the client, to
the essential terms of the transaction and the lawyer's role in the
transaction, including whether the lawyer is representing the client in the
transaction.
(b) A lawyer shall not use information relating to
representation of a client to the disadvantage of the client unless the client
gives informed consent, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a
client, including a testamentary gift, or prepare on behalf of a client an
instrument giving the lawyer or a person related to the lawyer any substantial
gift unless the lawyer or other recipient of the gift is related to the client.
For purposes of this paragraph, related persons include a spouse, child,
grandchild, parent, grandparent or other relative or individual with whom the
lawyer or the client maintains a close, familial relationship.
(d) Prior to the conclusion of representation of a client,
a lawyer shall not make or negotiate an agreement giving the lawyer literary or
media rights to a portrayal or account based in substantial part on information
relating to the representation.
(e) A lawyer shall not provide financial assistance to a
client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigations, the repayment
of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses
of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for
representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional
judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required
by Rule 1.6.
(g) A lawyer who represents two or more clients shall not
participate in making an aggregate settlement of the claims of or against the
clients, or in a criminal case an aggregated agreement as to guilty or nolo
contendere pleas, unless each client gives informed consent, in a writing
signed by the client. The lawyer's disclosure shall include the existence and
nature of all the claims or pleas involved and of the participation of each
person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client
for malpractice unless the client is independently represented in making the
agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented
client or former client unless that person is advised in writing of the
desirability of seeking and is given a reasonable opportunity to seek the
advice of independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in
the cause of action or subject matter of litigation the lawyer is conducting
for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses;
and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client
unless a consensual sexual relationship existed between them when the
client-lawyer relationship commenced.
(k) While lawyers are associated in a firm, a prohibition
in the foregoing paragraphs (a) through (i) that applies to any one of them
shall apply to all of them.
Rule 1.9. Duties to former clients.
(a) A lawyer who has formerly represented a client in a
matter shall not thereafter represent another person in the same or a
substantially related matter in which that person's interests are materially
adverse to the interests of the former client unless the former client gives
informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the
same or a substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and
1.9(c) that is material to the matter;unless the former client gives
informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a
matter or whose present or former firm has formerly represented a client in a
matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the
former client except as these Rules would permit or require with respect to a
client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules
would permit or require with respect to a client.
Rule 1.10. Imputation of conflicts of interest: General
rule.
(a) Except as otherwise provided in this rule, while
lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so
by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of
the prohibited lawyer and does not present a significant risk of materially
limiting the representation of the client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a
firm, the firm is not prohibited from thereafter representing a person with
interests materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and
1.9(c) that is material to the matter.
(c) When a lawyer becomes associated with a firm, no
lawyer associated in the firm shall knowingly represent a client in a matter in
which that lawyer is disqualified under Rule 1.9 unless:
(1) the personally disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom;
and
(2) written notice is promptly given to the affected former client.
(d) A disqualification prescribed by this rule may be
waived by the affected client under the conditions stated in Rule 1.7.
(e) The disqualification of lawyers associated in a firm with former or current
government lawyers is governed by Rule 1.11.
Rule 1.11. Special conflicts of interest for former and
current government officers and employees.
(a) Except as law may otherwise expressly permit, a
lawyer who has formerly served as a public officer or employee of the
government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which
the lawyer participated personally and substantially as a public officer or
employee, unless the appropriate government agency gives its informed consent,
confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation
under paragraph (a), no lawyer in a firm with which that lawyer is associated
may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to
enable it to ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a
lawyer having information that the lawyer knows is confidential government
information about a person acquired when the lawyer was a public officer or
employee, may not represent a private client whose interests are adverse to
that person in a matter in which the information could be used to the material
disadvantage of that person. As used in this Rule, the term "confidential
government information" means information that has been obtained under
governmental authority and which, at the time this Rule is applied, the
government is prohibited by law from disclosing to the public or has a legal
privilege not to disclose and which is not otherwise available to the public. A
firm with which that lawyer is associated may undertake or continue
representation in the matter only if the disqualified lawyer is timely screened
from any participation in the matter and is apportioned no part of the fee
therefrom.
(d) Except as law may otherwise expressly permit, a
lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental employment, unless
the appropriate government agency gives its informed consent, confirmed in
writing; or
(ii) negotiate for private employment with any person who is involved as a
party or as lawyer for a party in a matter in which the lawyer is participating
personally and substantially, except that a lawyer serving as a law clerk to a
judge, other adjudicative officer or arbitrator may negotiate for private
employment as permitted by Rule 1.12(b) and subject to the conditions stated in
Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(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.
Rule 1.12. Former judge, arbitrator, mediator or other
third-party neutral.
(a) Except as stated in paragraph (d), a lawyer shall not
represent anyone in connection with a matter in which the lawyer participated
personally and substantially as a judge or other adjudicative officer or law
clerk to such a person or as an arbitrator, mediator or other third-party
neutral, unless all parties to the proceeding give informed consent, confirmed
in writing.
(b) A lawyer shall not negotiate for employment with any
person who is involved as a party or as lawyer for a party in a matter in which
the lawyer is participating personally and substantially as a judge or other
adjudicative officer or as an arbitrator, mediator or other third-party
neutral. A lawyer serving as a law clerk to a judge or other adjudicative
officer may negotiate for employment with a party or lawyer involved in a
matter in which the clerk is participating personally and substantially, but
only after the lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no
lawyer in a firm with which that lawyer is associated may knowingly undertake
or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate
tribunal to enable them to ascertain compliance with the provisions of this
rule.
(d) An arbitrator selected as a partisan of a party in a
multimember arbitration panel is not prohibited from subsequently representing
that party.
Rule 1.13. Organization as client.
(a) A lawyer employed or retained by an organization
represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an
officer, employee or other person associated with the organization is engaged
in action, intends to act or refuses to act in a matter related to the
representation that is a violation of a legal obligation to the organization,
or a violation of law which reasonably might be imputed to the organization,
and is likely to result in substantial injury to the organization, the lawyer
shall proceed as is reasonably necessary in the best interest of the
organization. In determining how to proceed, the lawyer shall give due
consideration to the seriousness of the violation and its consequences, the
scope and nature of the lawyer's representation, the responsibility in the
organization and the apparent motivation of the person involved, the policies
of the organization concerning such matters and any other relevant
considerations. Any measures taken shall be designed to minimize disruption of
the organization and the risk of revealing information relating to the
representation to persons outside the organization. Such measures may include
among others:
(1) asking for reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for
presentation to appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if
warranted by the seriousness of the matter, referral to the highest authority
that can act on behalf of the organization as determined by applicable law.(c)
If, despite the lawyer's efforts in accordance with paragraph (b), the highest
authority that can act on behalf of the organization insists upon action, or a
refusal to act, that is clearly a violation of law and is likely to result in
substantial injury to the organization, the lawyer may resign in accordance
with Rule 1.16.
(d) In dealing with an organization's directors,
officers, employees, members, shareholders or other constituents, a lawyer
shall explain the identity of the client when the lawyer knows or reasonably
should know that the organization's interests are adverse to those of the
constituents with whom the lawyer is dealing.
(e) 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. If the organization's consent to the
dual representation is required by Rule 1.7, the consent shall be given by an
appropriate official of the organization other than the individual who is to be
represented, or by the shareholders.
Rule 1.14. Client with diminished capacity.
(a) When a client's capacity to make adequately
considered decisions in connection with a representation is diminished, whether
because of minority, mental impairment or for some other reason, the lawyer
shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.
(b) When the lawyer reasonably believes that the client
has diminished capacity, is at risk of substantial physical, financial or other
harm unless action is taken and cannot adequately act in the client's own
interest, the lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take action to
protect the client and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a
client with diminished capacity is protected by Rule 1.6. When taking
protective action pursuant to paragraph (b), the lawyer is impliedly authorized
under Rule 1.6(a) to reveal information about the client, but only to the
extent reasonably necessary to protect the client's interests.
Rule 1.15. Safekeeping property.
(a) A lawyer shall hold property of clients or third
persons that is in a lawyer's possession in connection with a representation
separate from the lawyer's own property. Funds shall be kept in a separate
account maintained in the state where the lawyer's office is situated, or
elsewhere with the consent of the client or third person. Funds of the lawyer
that are reasonably sufficient to pay bank charges may be deposited therein;
however, such amount may not exceed $500 and must be separately stated and
accounted for in the same manner as clients' funds deposited therein. Other
property shall be identified as such and appropriately safeguarded. Complete
records of such account funds and other property shall be kept by the lawyer
and shall be preserved for a period of five years after the completion of the
events that they record.
(b) Upon receiving funds or other property in which a
client or third person has an interest, a lawyer shall promptly notify the
client or third person. Except as stated in this Rule or otherwise permitted by
law or by agreement with the client, a lawyer shall promptly deliver to the
client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third person,
shall promptly render a full accounting regarding such property.
(c) When in the course of representation a lawyer is in
possession of property in which both the lawyer and another person claim
interests, the property shall be kept separate by the lawyer until there is an
accounting and severance of their interests. If a dispute arises concerning
their respective interests, the portion in dispute shall be kept separate by
the lawyer until the dispute is resolved.
(d) A lawyer engaged in the private practice of law must
maintain financial books and records on a current basis, and shall preserve the
books and records for at least five years following the completion of the year
to which they relate, or, as to fiduciary books and records, five years
following the completion of that fiduciary obligation. The maintenance of books
and records must conform with the following provisions:
(1) All bank statements, cancelled checks, and duplicate deposit slips relating
to fiduciary and non-fiduciary accounts must be preserved.
(2) Bank accounts and related statements, checks, deposit slips, and other
documents maintained for fiduciary funds must be specifically designated as
"Trust Account" or "Escrow Account," and must be used only for funds held in a
fiduciary capacity.
(3) Bank accounts and related statements, checks, deposit slips, and other
documents maintained for non-fiduciary funds must be specifically designated as
"Attorney Business Account" or "Attorney Operating Account," and must be used
only for funds held in a non-fiduciary capacity. A lawyer in the private
practice of law shall maintain a non-fiduciary account for general operating
purposes, and the account shall be separate from any of the lawyer's personal
or other accounts.
(4) All records relating to property other than cash received by a lawyer in a
fiduciary capacity shall be maintained and preserved. The records must describe
with specificity the identity and location of such property.
(5) All billing records reflecting fees charged and other billings to clients
or other parties must be maintained and preserved.
(6) Cash receipts and cash disbursement journals must be maintained and
preserved for each bank account for the purpose of recording fiduciary and
non-fiduciary transactions. A lawyer using a manual system for such purposes
must total and balance the transaction columns on a monthly basis.
(7) A monthly reconciliation for each bank account, matching totals from the
cash receipts and cash disbursement journals with the ending check register
balance, must be performed. The reconciliation procedures, however, shall not
be required for lawyers using a computer accounting system or a general ledger.
(8) The check register balance for each bank account must be reconciled monthly
to the bank statement balance.
(9) With respect to all fiduciary accounts:
(A) A subsidiary ledger must be maintained and preserved with a separate
account for each client or third party in which cash receipts and cash
disbursement transactions and monthly balances are recorded.
(B) Monthly listings of client or third party balances must be prepared showing
the name and balance of each client or third party, and the total of all
balances.
(C) No funds disbursed for a client or third party must be in excess of funds
received from that client or third party. If, however, through error funds
disbursed for a client or third party exceed funds received from that client or
third party, the lawyer shall transfer funds from the non-fiduciary account in
a timely manner to cover the excess disbursement.
(D) The reconciled total cash balance must agree with the total of the client
or third party balance listing. There shall be no unidentified client or third
party funds. The bank reconciliation for a fiduciary account is not complete
unless there is agreement with the total of client or third party accounts.
(E) No funds which should have been disbursed shall remain in the account,
including, but not limited to, earned legal fees, which must be transferred to
the lawyer's non-fiduciary account on a prompt and timely basis when earned.
(F) No funds of the lawyer shall be placed in or left in the account except as
provided in Rule 1.15(a).
(G) When a separate real estate bank account is maintained for settlement
transactions, and when client or third party funds are received but not yet
disbursed, a listing must be prepared on a monthly basis showing the name of
the client or third party, the balance due to each client or third party, and
the total of all such balances. The total must agree with the reconciled cash
balance.(10) If a lawyer maintains financial books and records using a
computer system, the lawyer must cause to be printed each month a hard copy of
all monthly journals, ledgers, reports, and reconciliations, and must review
and preserve the documents in the same manner as other financial records
described in this Rule.
(e) A lawyer's financial books and records must be
subject to examination by the auditor for the Lawyers' Fund for Client
Protection, for the purpose of verifying the accuracy of a certificate of
compliance filed each year by the lawyer pursuant to Supreme Court Rule 69. The
examination must be conducted so as to preserve, insofar as is consistent with
these Rules, the confidential nature of the lawyer's books and records. If the
lawyer's books and records are not located in Delaware, the lawyer may have the
option either to produce the books and records at the lawyer's office in
Delaware or to produce the books and records at the location outside of
Delaware where they are ordinarily located. If the production occurs outside of
Delaware, the lawyer shall pay any additional expenses incurred by the auditor
for the purposes of an examination.
(f) A lawyer holding client funds must initially and
reasonably determine whether the funds should or should not be placed in an
interest-bearing depository account for the benefit of the client. In making
such a determination, the lawyer must consider the financial interests of the
client, the costs of establishing and maintaining the account, any tax
reporting procedures or requirements, the nature of the transaction involved,
the likelihood of delay in the relevant proceedings, whether the funds are of a
nominal amount, and whether the funds are expected to be held by the lawyer for
a short period of time. A lawyer must at reasonable intervals consider whether
changed circumstances would warrant a different determination with respect to
the deposit of client funds. Except as provided in these Rules, interest earned
on client funds placed into an interest-bearing depository account for the
benefit of the client (less any deductions for service charges or other fees of
the depository institution) shall belong to the client whose -funds are
deposited, and the lawyer shall have no right or claim to such interest.
(g) A lawyer holding client funds who has reasonably
determined, pursuant to subsection (f) of this Rule, that such funds need not
be deposited into an interest-bearing depository account for the benefit of the
client must maintain a pooled interest-bearing depository account for the
deposit of the funds; provided, however, that this requirement shall not apply
to a lawyer who either has obtained inactive status pursuant to Supreme Court
Rule 69(d), or has obtained a Certificate of Retirement pursuant to Supreme
Court Rule 69(f), or has formally elected to opt out of this requirement in
accordance with the procedure set forth below in subparagraph (k).
(h) A lawyer who maintains such a pooled account shall
comply with the following:
(1) The account shall include only client's funds which are nominal amount or
are expected to be held for a short period of time.
(2) No interest from such an account shall be made available to a lawyer or law
firm.
(3) Lawyers or law firms depositing client funds in a pooled interest-bearing
account under this paragraph (h) shall direct the depository institution:
(a) To remit interest, net any service charges or fees, as computed in
accordance with the institution's standard accounting practice, at least
quarterly, to the Delaware Bar Foundation; and
(b) To transmit with each remittance to the Delaware Bar Foundation a statement
showing the name of the lawyer or law firm on whose accounting remittance is
sent and the rate of interest applied; with a copy of statement to be
transmitted to the lawyer or law firm by the Delaware Bar Foundation.
(i) The funds transmitted to the Delaware Bar Foundation
shall be available for distribution for the following purposes:
(1) To improve the administration of justice;
(2) To provide and to enhance the delivery of legal services to the poor;
(3) To support law related education;
(4) For each other purposes that serve the public interest.The Delaware
Bar Foundation shall recommend for the approval of the Supreme Court of the
State of Delaware, such distributions as it may deem appropriate. Distributions
shall be made only upon the Court's approval.
(j) Lawyers or law firms, depositing client funds in a
pooled interest-bearing depository account under this paragraph shall not be
required to advise the client of such deposit or of the purposes to which the
interest accumulated by reason of such deposits is to be directed.
(k) The procedure available for opting out of the
requirement to maintain pooled interest-bearing accounts are as follows:
(1) Prior to December 15, 1983, a lawyer wishing to decline to maintain a
pooled interest-bearing account[s] described in this paragraph for any calendar
year may do so by submitting a Notice of Declination in writing to the Clerk of
the Supreme Court ab initio or before December 15 of the preceding calendar
year. Any such submission shall remain effective, unless revoked and need not
be renewed for any ensuing year.
(2) Any lawyer who has not filed a Notice of Declination on or before December
15, 1983, may elect not to maintain a pooled interest-bearing depository
account for client funds as required and instead to maintain a pooled
depository account for such funds that does not bear interest or that bears
interest solely for the benefit of the clients who deposited the funds by
certifying that the lawyer or law firm opts out of the obligation to comply
with the requirements by timely submission of the Annual Registration Statement
required by Supreme Court Rule 69(b)(i). Any such certification shall release
the lawyer or law firm submitting it from participation effective as of the
date that the certification is submitted and it shall remain effective until
revoked as set forth below without need for renewal for any ensuing year.
(3) Notwithstanding the foregoing provisions of this subparagraph, any lawyer
or law firm may petition the Court at any time and, for good cause shown, may
be granted leave to opt out of the obligation to comply with the mandatory
requirements of this paragraph.
(l) An election to opt out of the obligation to comply
with paragraph (h) hereof may be revoked at any time upon the opening by a
non-participating lawyer or law firm of a pooled interest-bearing account as
previously described and due notification thereof to the Court Administrator of
the Supreme Court pursuant to Supreme Court Rule 69(g).
(m) A lawyer should exercise good faith judgment in
determining initially, whether funds of a client are of such nominal amount or
are expected to be held by the lawyer for such a short period of time that the
funds should not be placed in an interest-bearing depository account for the
benefit of the client. The lawyer should also consider such other facts as:
(1) The cost of establishing and maintaining the account, service charges,
accounting fees, and tax reporting procedures;
(2) The nature of the transactions(s) involved; and
(3) The likelihood of delay in the relevant proceedings.A lawyer should
review at reasonable intervals whether changed circumstances require further
action respecting the deposit of client funds.
(n) A lawyer shall not disburse Fiduciary Funds from his
or her attorney trust account(s) unless the funds deposited in the account to
be disbursed are good funds as hereinafter defined. "Good funds" shall mean:
(1) cash;
(2) electronic fund ("wire") transfer;
(3) certified check;
(4) bank cashier's check or treasurer's check;
(5) U.S. Treasury or State of Delaware Treasury check;
(6) Check drawn on a separate trust or escrow account of an attorney engaged in
the private practice of law in the State of Delaware held in a fiduciary
capacity, including his or her client's funds;
(7) Check of an insurance company that is authorized by the Insurance
Commissioner of Delaware to transact insurance business in Delaware;
(8) Check in an amount no greater than $10,000.00;
(9) Check greater than $10,000.00, which has been actually and finally
collected and may be drawn against under federal or state banking regulations
then in effect;
(10) Check drawn on an escrow account of a real estate broker licensed by the
state of Delaware up to the limit of guarantee provided per transaction by
statute.
Rule 1.15A. Trust account overdraft notification.
(a) Attorney accounts designated as "Trust Account" or
"Escrow Account" pursuant to Rule 1.15(d)(2) shall be maintained only in
financial institutions approved by the Lawyers' Fund for Client Protection (the
"Fund"). A financial institution may not be approved as a depository for
attorney trust and escrow accounts unless it shall have filed with the Fund an
agreement, in a form provided by the Fund, to report to the Office of
Disciplinary Counsel ("ODC") in the event any instrument in properly payable
form is presented against an attorney trust or escrow account containing
insufficient funds, irrespective of whether or not the instrument is honored.
(b) The Supreme Court may establish rules governing
approval and termination of approved status for financial institutions and the
Fund shall annually publish a list of approved financial institutions. No trust
or escrow account shall be maintained in any financial institution that does
not agree to make such reports. Any such agreement shall apply to all branches
of the financial institution and shall not be canceled except upon thirty (30)
days notice in writing to the Fund.
(c) The overdraft notification agreement shall provide
that all reports made by the financial institution shall be in the following
format:
(1) In the case of a dishonored instrument, the report shall be identical to
the overdraft notice customarily forwarded to the depositor, and shall include
a copy of the dishonored instrument to the ODC no later than seven (7) calendar
days following a request for the copy by the ODC.
(2) In the case of instruments that are presented against insufficient funds,
but which instruments are honored, the report shall identify the financial
institution, the attorney or law firm, the account number, the date of
presentation for payment, and the date paid, as well as the amount of the
overdraft created thereby.
(d) Reports shall be made simultaneously with, and
within the time provided by law for, notice of dishonor. If an instrument
presented against insufficient funds is honored, then the report shall be made
within seven (7) calendar days of the date of presentation for payment against
insufficient funds.
(e) Every attorney practicing or admitted to practice in
this jurisdiction shall, as a condition thereof, be conclusively deemed to have
consented to the reporting and production requirements mandated by this rule.
(f) Nothing herein shall preclude a financial
institution from charging a particular attorney or law firm for the reasonable
costs of producing the reports and records required by this rule.
(g) The terms used in this section are defined as
follows:
(1) "Financial institution" includes banks, savings and loan associations,
credit unions, savings banks and any other business or persons which accept for
deposit funds held in trust by attorneys.
(2) "Properly payable" refers to an instrument which, if presented in the
normal course of business, is in a form requiring payment under the laws of
Delaware.
(3) "Notice of dishonor" refers to the notice which a financial institution is
required to give, under the laws of Delaware, upon presentation of an
instrument which the institution dishonors.
(h) Every attorney practicing or admitted to practice in this jurisdiction
shall designate every account into which attorney trust or escrow funds are
deposited either as a "Rule 1.15A Attorney Trust Account" or as a "Rule 1.15A
Attorney Escrow Account".
Rule 1.16. Declining or terminating representation.
(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;
(2) the lawyer's physical or mental condition materially impairs the lawyer's
ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may
withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the
interests of the client;
(2) the client persists in a course of action involving the lawyer's services
that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's service to perpetrate a crime or fraud;
(4) a client insists upon taking action that the lawyer considers repugnant or
with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer's services and has been given reasonable warning that the
lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the
lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring
notice to or permission of a tribunal when terminating a representation. When
ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client's interests, such as giving
reasonable notice to the client, allowing time for employment of other counsel,
surrendering papers and property to which the client is entitled and refunding
any advance payment of fee or expense that has not been earned or incurred. The
lawyer may retain papers relating to the client to the extent permitted by
other law.
Rule 1.17. Sale of law practice.
A lawyer or a law firm may sell or purchase a law practice, or an area of law
practice, including good will, if the following conditions are satisfied:
(a) The seller ceases to engage in the private practice
of law, or in the area of practice that has been sold in the jurisdiction in
which the practice has been conducted;
(b) The entire practice, or the entire area of practice,
is sold to one or more lawyers or law firms;
(c) The seller gives written notice to each of the
seller's clients regarding:
(1) the proposed sale;
(2) the client's right to retain other counsel or to take possession of the
file; and
(3) the client's consent to the transfer of the client's files will be presumed
if the client does not take any action or does not otherwise object within
ninety (90) days of receipt of the notice.In a matter of pending
litigation, if a client cannot be given notice, the representation of that
client may be transferred to the purchaser only upon entry of an order so
authorizing by a court having jurisdiction. The seller may disclose to the
court in camera information relating to the representation only to the extent
necessary to obtain an order authorizing the
transfer of a file. If approval of the substitution of the purchasing lawyer
for the selling lawyer is required by the rules of any tribunal in which a
matter is pending, such approval must be obtained before the matter can be
included in the sale.
(d) The fees charged clients shall not be increased by
reason of the sale.
Rule 1.18. Duties to prospective client.
(a) A person who discusses with a lawyer the possibility
of forming a client-lawyer relationship with respect to a matter is a
prospective client.
(b) Even when no client-lawyer relationship ensues, a
lawyer who has had discussions with a prospective client shall not use or
reveal information learned in the consultation, except as Rule 1.9 would permit
with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent
a client with interests materially adverse to those of a prospective client in
the same or a substantially related matter if the lawyer received information
from the prospective client that could be significantly harmful to that person
in the matter, except as provided in paragraph (d). 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).
(d) When the lawyer has received disqualifying
information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed
consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid
exposure to more disqualifying information than was reasonably necessary to
determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Rule 2.1. Advisor.
In representing a client, a lawyer shall exercise independent professional
judgment and render candid advice. In rendering advice, a lawyer may refer not
only to law but to other considerations, such as moral, economic, social and
political factors, that may be relevant to the client's situation.
Rule 2.2. Intermediary (Deleted).
Rule 2.3. Evaluation for use by third persons.
(a) A lawyer may provide an evaluation of a matter
affecting a client for the use of someone other than the client if the lawyer
reasonably believes that making the evaluation is compatible with other aspects
of the lawyer's relationship with the client.
(b) When the lawyer knows or reasonably should know that
the evaluation is likely to affect the client's interests materially and
adversely, the lawyer shall not provide the evaluation unless the client gives
informed consent.
(c) Except as disclosure is authorized in connection with
a report of an evaluation, information relating to the evaluation is otherwise
protected by Rule 1.6.
Rule 2.4. Lawyer serving as third-party neutral.
(a) A lawyer serves as a third-party neutral when the
lawyer assists two or more persons who are not clients of the lawyer to reach a
resolution of a dispute or other matter that has arisen between them. Service
as a third-party neutral may include service as an arbitrator, a mediator or in
such other capacity as will enable the lawyer to assist the parties to resolve
the matter.
(b) A lawyer serving as a third-party neutral shall inform
unrepresented parties that the lawyer is not representing them. When the lawyer
knows or reasonably should know that a party does not understand the lawyer's
role in the matter, the lawyer shall explain the difference between the
lawyer's role as a third-party neutral and a lawyer's role as one who
represents a client.
Rule 3.1. Meritorious claims and contentions.
A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis in law and fact for doing so that is not
frivolous, which includes a good faith argument for an extension, modification
or reversal of existing law. A lawyer for the defendant in a criminal
proceeding, or the respondent in a proceeding that could result in
incarceration, may nevertheless so defend the proceeding as to require that
every element of the case be established.
Rule 3.2. Expediting litigation.
A lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.
Rule 3.3. Candor toward the tribunal.
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by the
lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of the
client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's
client, or a witness called by the lawyer, has offered material evidence and
the lawyer comes to know of its falsity, the lawyer shall take reasonable
remedial measures, including, if necessary, disclosure to the tribunal. A
lawyer may refuse to offer evidence, other than the testimony of a defendant in
a criminal matter, that the lawyer reasonably believes is false.(b)
A lawyer who represents a client in an adjudicative proceeding and who knows
that a person intends to engage, is engaging or has engaged in criminal or
fraudulent conduct related to the proceeding shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraph (a) and (b)
continue to the conclusion of the proceeding, and apply even if compliance
requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer which will enable the tribunal to make an
informed decision, whether or not the facts are adverse.
Rule 3.4. Fairness to opposing party and counsel.
A lawyer shall not:
(a) unlawfully obstruct another party's access
to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a
witness to testify falsely, or offer an inducement to a witness that is
prohibited by law.
(c) knowingly disobey an obligation under the
rules of a tribunal, except for an open refusal based on an assertion that no
valid obligation exists;
(d) in pretrial procedure, make a frivolous
discovery request or fail to make reasonably diligent efforts to comply with a
legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the
lawyer does not reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness of a
cause, the credibility of a witness, the culpability of a civil litigant or the
guilt or innocence of an accused; or
(f) request a person other than a client to
refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be
adversely affected by refraining from giving such information.
Rule 3.5. Impartiality and decorum of the tribunal.
A lawyer shall not:
(a) seek to influence a judge, juror,
prospective juror or other official by means prohibited by law;
(b) communicate or cause another to
communicate ex parte with such a person or members of such person's family
during the proceeding unless authorized to do so by law or court order; or
(c) communicate with a juror or prospective
juror after discharge of the jury unless the communication is permitted by
court rule;
(d) engage in conduct intended to disrupt a
tribunal or engage in undignified or discourteous conduct that is degrading to
a tribunal.
Rule 3.6. Trial publicity.
(a) A lawyer who is participating or has
participated in the investigation or litigation of a matter shall not make an
extrajudicial statement that the lawyer knows or reasonably should know will be
disseminated by means of public communication and will have a substantial
likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer
may state:
(1) the claim, offense or defense involved and, except when prohibited by law,
the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary
thereto;
(6) a warning of danger concerning the behavior of a person involved, when
there is reason to believe that there exists the likelihood of substantial harm
to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in
apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.(c)
Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue
prejudicial effect of recent publicity not initiated by the lawyer or the
lawyer's client. A statement made pursuant to this paragraph shall be limited
to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject
to paragraph (a) shall make a statement prohibited by paragraph (a).
Rule 3.7. Lawyer as witness.
(a) A lawyer shall not act as advocate at a
trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in
the case; or
(3) disqualification of the lawyer would work substantial hardship on the
client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called as a witness unless precluded from doing
so by Rule 1.7 or Rule 1.9.
Rule 3.8. Special responsibilities of a prosecutor.
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the
prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the
accused has been advised of the right to, and the procedure for obtaining,
counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented
accused a waiver of important pretrial rights, such as the right to a
preliminary hearing;
(d) make timely disclosure to the defense of
all evidence or information known to the prosecutor that tends to negate the
guilt of the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the prosecutor is
relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or
other criminal proceeding to present evidence about a past or present client
unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable
privilege;
(2) the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;(f)
except for statements that are necessary to inform the public of the nature and
extent of the prosecutor's action and that serve a legitimate law enforcement
purpose, refrain from making extrajudicial comments that have a substantial
likelihood of heightening public condemnation of the accused and exercise
reasonable care to prevent investigators, law enforcement personnel, employees
or other persons assisting or associated with the prosecutor in a criminal case
from making an extrajudicial statement that the prosecutor would be prohibited
from making under Rule 3.6 or this Rule.
Rule 3.9. Advocate in nonadjudicative proceedings.
A lawyer representing a client before a legislative body or administrative
agency in a nonadjudicative proceeding shall disclose that the appearance is in
a representative capacity and shall conform to the provisions of Rules 3.3(a)
through (c), 3.4(a) through(c) and 3.5(a) and (c).
Rule 3.10. Communication with or investigation of jurors
(Deleted).
Rule 4.1. Truthfulness in statements to others.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or
law to a third person; or
(b) fail to disclose a material fact when
disclosure is necessary to avoid assisting a criminal or fraudulent act by a
client, unless disclosure is prohibited by Rule 1.6.
Rule 4.2. Communication with person represented by counsel.
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 bylaw or a court order.
Rule 4.3. Dealing with unrepresented person.
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. The lawyer shall not give
legal advice to an unrepresented person, other than the advice to secure
counsel, if the lawyer knows or reasonably should know that the interests of
such a person are or have a reasonable possibility of being in conflict with
the interests of the client.
Rule 4.4. Respect for rights of third persons.
(a) In representing a client, a lawyer shall
not use means that have no substantial purpose other than to embarrass, delay
or burden a third person, or use methods of obtaining evidence that violate the
legal rights of such a person.
(b) A lawyer who receives a document relating
to the representation of the lawyer's client and knows or reasonably should
know that the document was inadvertently sent shall promptly notify the sender.
Rule 5.1. Responsibilities of partners, managers, and
supervisory lawyers.
(a) A partner in a law firm, and a lawyer who
individually or together with other lawyers possesses comparable managerial
authority in a law firm, shall make reasonable efforts to ensure that the firm
has in effect measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory
authority over another lawyer shall make reasonable efforts to ensure that the
other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another
lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the
conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law
firm in which the other lawyer practices, or has direct supervisory authority
over the other lawyer, and knows of the conduct at a time when its consequences
can be avoided or mitigated but fails to take reasonable remedial action.
Rule 5.2. Responsibilities of a subordinate lawyer.
(a) A lawyer is bound by the Rules of
Professional Conduct notwithstanding that the lawyer acted at the direction of
another person.
(b) A subordinate lawyer does not
violate the Rules of Professional Conduct if that lawyer acts in accordance
with a supervisory lawyer's reasonable resolution of an arguable question of
professional duty.
Rule 5.3. Responsibilities regarding non-lawyer assistants.
With respect to a nonlawyer employed or retained by or associated with a
lawyer:
(a) a partner in a law firm, and a lawyer who
individually or together with other lawyers possesses comparable managerial
authority in a law firm, shall make reasonable efforts to ensure that the firm
has in effect measures giving reasonable assurance that the person's conduct is
compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory
authority over the nonlawyer shall make reasonable efforts to ensure that the
person's conduct is compatible with the professional obligations of the lawyer;
and
(c) a lawyer shall be responsible for conduct
of such a person that would be a violation of the Rules of Professional Conduct
if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies
the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law
firm in which the person is employed, or has direct supervisory authority over
the person, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
Rule 5.4. Professional independence of a lawyer.
(a) A lawyer or law firm shall not share
legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may
provide for the payment of money, over a reasonable period of time after the
lawyer's death, to the lawyer's 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 which fairly represents the services rendered by the
deceased lawyer;
(3) a lawyer who purchases the practice of a deceased, disabled, or disappeared
lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other
representative of that lawyer the agreed-upon purchase price;
(4) 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; and
(5) a lawyer may share court-awarded legal fees with a nonprofit organization
that employed, retained or recommended employment of the lawyer in the matter.(b)
A lawyer shall not form a partnership with a nonlawyer if any of the activities
of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who
recommends, employs, or pays the lawyer to render legal services for another to
direct or regulate the lawyer's professional judgment in rendering such legal
services.
(d) 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 occupies the
position of similar responsibility in any form of association other than a
corporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of
a lawyer.
Rule 5.5. Unauthorized practice of law; multijurisdictional
practice of law.
(a) A lawyer shall not practice law in a
jurisdiction in violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice
in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or
other systematic and continuous presence in this jurisdiction for the practice
of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted
to practice law in this jurisdiction.(c)
A lawyer admitted in another United States jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services on a
temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in
this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a
tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer
is assisting, is authorized by law or order to appear in such proceeding or
reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or
another jurisdiction, if the services arise out of or are reasonably related to
the lawyer's practice in a jurisdiction in which the lawyer is admitted to
practice and are not services for which the forum requires pro hac vice
admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are
reasonably related to the lawyer's practice in a jurisdiction in which the
lawyer is admitted to practice.(d) A
lawyer admitted in another United States jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services in this
jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates and
are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal law or
other law of this jurisdiction.
Rule 5.6. Restrictions on right to practice.
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating,
employment, or other similar type of agreement that restricts the rights of a
lawyer to practice after termination of the relationship, except an agreement
concerning benefits upon retirement; or
(b) an agreement in which a restriction on the
lawyer's right to practice is part of the settlement of a client controversy.
Rule 5.7. Responsibilities regarding law-related services.
(a) A lawyer shall be subject to the Rules of
Professional Conduct with respect to the provision of law-related services, as
defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's
provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually
or with others if the lawyer fails to take reasonable measures to assure that a
person obtaining the law-related services knows that the services are not legal
services and that the protections of the client-lawyer relationship do not
exist.
(b) The term "law-related services" denotes services that might reasonably be
performed in conjunction with and in substance are related to the provision of
legal services, and that are not prohibited as unauthorized practice of law
when provided by a nonlawyer.
Rule 6.1. Voluntary pro bono publico service.
A lawyer should render public interest legal service. A lawyer may discharge
this responsibility by providing professional services at no fee or a reduced
fee to persons of limited means or to public service or charitable groups or
organizations, by service in activities for improving the law, the legal system
or the legal profession, and by financial support for organizations that
provide legal services to persons of limited means.
Rule 6.2. Accepting appointments.
A lawyer shall not seek to avoid appointment by a tribunal to represent a
person except for good cause, such as:
(a) representing the client is likely to
result in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to
result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to
the lawyer as to be likely to impair the client-lawyer relationship or the
lawyer's ability to represent the client.
Rule 6.3. Membership in legal services organization.
A lawyer may serve as a director, officer or member of a legal services
organization, apart from the law firm in which the lawyer practices,
notwithstanding that the organization serves persons having interests adverse
to a client of the lawyer. The lawyer shall not knowingly participate in a
decision or action of the organization:
(a) if participating in the decision or action
would be incompatible with the lawyer's obligations to a client under Rule 1.7;
or
(b) where the decision or action could have a
material adverse effect on the representation of a client of the organization
whose interests are adverse to a client of the lawyer.
Rule 6.4. Law reform activities affecting client interests.
A lawyer may serve as a director, officer or member of an organization
involved in reform of the law or its administration notwithstanding that the
reform may affect the interests of a client of the lawyer. When the lawyer
knows that the interests of a client may be materially benefitted by a decision
in which the lawyer participates, the lawyer shall disclose that fact but need
not identify the client.
Rule 6.5. Non-profit and court-annexed limited
legal-service programs.
(a) A lawyer who, under the auspices of a
program sponsored by a nonprofit organization or court, provides short-term
limited legal services to a client without expectation by either the lawyer or
the client that the lawyer will provide continuing representation in the
matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the
representation of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer
associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a)
with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a
representation governed by this Rule.
Rule 7.1. Communications concerning a lawyer's services.
A lawyer shall not make a false or misleading communication about the lawyer
or the lawyer's services. A communication is false or misleading if it contains
a material misrepresentation of fact or law, or omits a fact necessary to make
the statement considered as a whole not materially misleading.
Rule 7.2. Advertising.
(a) Subject to the requirements of Rules 7.1
and 7.3, a lawyer may advertise services through written, recorded or
electronic communication, including public media.
(b) Except as permitted by Rule 1.5(e), a
lawyer shall not give anything of value to a person for recommending the
lawyer's services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by
this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or
qualified lawyer referral service. A qualified lawyer referral service is a
lawyer referral service that has been approved by an appropriate regulatory
authority; and
(3) pay for a law practice in accordance with Rule 1.17.
(c) Any communication made pursuant to this rule shall include the name and
office address of at least one lawyer or law firm responsible for its content.
Rule 7.3. Direct contact with prospective clients.
(a) A lawyer shall not by in-person, live
telephone or real-time electronic contact solicit professional employment from
a prospective client when a significant motive for the lawyer's doing so is the
lawyer's pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the
lawyer.(b) A lawyer shall not solicit
professional employment from a prospective client by written, recorded or
electronic communication or by in-person, telephone or real-time electronic
contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be
solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.(c)
Every written, recorded or electronic communication from a lawyer soliciting
professional employment from a prospective client known to be in need of legal
services in a particular matter shall include the words "Advertising Material"
on the outside envelope, if any, and at the beginning and ending of any
recorded or electronic communication, unless the recipient of the communication
is a person specified in paragraphs (a)(1) or (a)(2).
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate
with a prepaid or group legal service plan operated by an organization not
owned or directed by the lawyer that uses in-person or telephone contact to
solicit memberships or subscriptions for the plan from persons who are not
known to need legal services in a particular matter covered by the plan.
Rule 7.4. Communication of fields of practice and
specialization.
(a) A lawyer may communicate the fact that
the lawyer does or does not practice in particular fields of law.
(b) A lawyer admitted to engage in patent
practice before the United States Patent and Trademark Office may use the
designation "Patent Attorney" or a substantially similar designation;
(c) A lawyer engaged in Admiralty practice may
use the designation "Admiralty," "Proctor in Admiralty" or a substantially
similar designation.
(d) A lawyer shall not state or imply that a
lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has
been approved by an appropriate state authority or that has been accredited by
the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the
communication.
Rule 7.5. Firm names and letterheads.
(a) A lawyer shall not use a firm name,
letterhead or other professional designation that violates Rule 7.1. 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 legal
services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one
jurisdiction may use the same name or other professional designation in each
jurisdiction, but identification of the lawyers in an office of the firm shall
indicate the jurisdictional limitations on those not licensed to practice in
the jurisdiction where the office is located.
(c) 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.
(d) Lawyers may state or imply that they
practice in a partnership or other organization only when that is the fact.
Rule 7.6. Political contributions to obtain government
legal engagements or appointments by judges.
A lawyer or law firm shall not accept a government legal engagement or an
appointment by a judge if the lawyer or law firm makes a political contribution
or solicits political contributions for the purpose of obtaining or being
considered for that type of legal engagement or appointment.
Rule 8.1. Bar admission and disciplinary matters.
An applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of
material fact; or
(b) fail to disclose a fact necessary to
correct a misapprehension known by the person to have arisen in the matter, or
knowingly fail to respond to a lawful demand for information from an admission
or disciplinary authority, except that this rule does not require disclosure of
information otherwise protected by Rule 1.6.
Rule 8.2. Judicial and legal officials.
(a) A lawyer shall not make a statement that
the lawyer knows to be false or with reckless disregard as to its truth or
falsity concerning the qualifications or integrity of a judge, adjudicatory
officer or public legal officer, or a candidate for election or appointment to
judicial or legal office.
(b) A lawyer who is a candidate for judicial
office shall comply with the applicable provisions of the Code of Judicial
Conduct.
Rule 8.3. Reporting professional misconduct.
(a) A lawyer who knows that another lawyer
has committed a violation of the rules of Professional Conduct that raises a
substantial question as to that lawyer's honesty, trustworthiness or fitness as
a lawyer in other respects, shall inform the appropriate professional
authority.
(b) A lawyer who knows that a judge has
committed a violation of applicable rules of judicial conduct that raises a
substantial question as to the judge's fitness for office shall inform the
appropriate authority.
(c) This Rule does not require disclosure of
information otherwise protected by rule 1.6.
(d) Notwithstanding anything in this or other
of the rules to the contrary, the relationship between members of either (i)
the Lawyers Assistance Committee of the Delaware State Bar Association and
counselors retained by the Bar Association, or (ii)the Professional Ethics
Committee of the Delaware State Bar Association, or (iii) the Fee dispute
Conciliation and Mediation Committee of the Delaware State Bar Association,
or(iv) the Professional Guidance Committee of the Delaware State Bar
Association, and a lawyer or a judge shall be the same as that of attorney and
client.
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do so or do so
through the acts of another;
(b) commit a criminal act that reflects
adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects;
(c) engage in conduct involving dishonesty,
fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to
the administration of justice;
(e) state or imply an ability to influence
improperly a government agency or official or to achieve results by means that
violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial
officer in conduct that is a violation of applicable rules of judicial conduct
or other law.
Rule 8.5. Disciplinary authority; choice of law.
(a) Disciplinary Authority. A lawyer admitted
to practice in this jurisdiction is subject to the disciplinary authority of
this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer
not admitted in this jurisdiction is also subject to the disciplinary authority
of this jurisdiction if the lawyer provides or offers to provide any legal
services in this jurisdiction. A lawyer may be subject to the disciplinary
authority of both this jurisdiction and another jurisdiction for the same
conduct.
(b) Choice of Law. In any exercise of the
disciplinary authority of this jurisdiction, the rules of professional conduct
to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits, unless the rules of the
tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer's
conduct occurred, or, if the predominant effect of the conduct is in a
different jurisdiction, the rules of that jurisdiction shall be applied to the
conduct. A lawyer shall not be subject to discipline if the lawyer's conduct
conforms to the rules of a jurisdiction in which the lawyer reasonably believes
the predominant effect of the lawyer's conduct will occur.
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Last updated: March 24, 2004
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