Rule 8. Code of Professional Responsibility. —The ethical standards relating to the practice of law, and the administration of the law in this court, shall be as hereinafter set out.
The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the individual's capacity through reason for enlightened self-government. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.
Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this rule requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.
In fulfilling professional responsibilities, a lawyer necessarily assumes various roles that require the performance of many difficult tasks. Not every situation which a lawyer may encounter can be foreseen, but fundamental ethical principles are always present to guide the lawyer. Within the framework of these principles, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society.
The Code of Professional Responsibility points the way to the aspiring and provides standards by which to judge the transgressor. Each lawyer must find within the lawyer's own conscience the touchstone against which to test the extent to which the lawyer's actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.
In furtherance of the principles stated in the Preamble, the American Bar Association has promulgated this Code of Professional Responsibility, consisting of three separate but interrelated parts: Canons, Ethical Considerations, and Disciplinary Rules. The Code is designed to be adopted by appropriate agencies both as an inspirational guide to the members of the profession and as a basis for disciplinary action when the conduct of a lawyer falls below the required minimum standards stated in the Disciplinary Rules.
Obviously the Canons, Ethical Considerations, and Disciplinary Rules cannot apply to non-lawyers; however, they do define the type of ethical conduct that the public has a right to expect not only of lawyers but also of their non-professional employees and associates in all matters pertaining to professional employment. A lawyer should ultimately be responsible for the conduct of the lawyer's employees and associates in the course of the professional representation of the client.
The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. They embody the general concepts from which the Ethical Considerations and the Disciplinary Rules are derived.
The Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. They constitute a body of principles upon which the lawyer can rely for guidance in many specific situations.
The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of fair trial, the Disciplinary Rules should be uniformly applied to all lawyers, regardless of the nature of their professional activities. The Code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct. The severity of judgment against one found guilty of violating a Disciplinary Rule should be determined by the character of the offense and the attendant circumstances. An enforcing agency, in applying the Disciplinary Rules, may find interpretive guidance in the basic principles embodied in the Canons and in the objectives reflected in the Ethical Considerations.
EC 1-1. A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer.
EC 1-2. The public should be protected from those who are not qualified to be lawyers by reason of a deficiency in education or moral standards or of other relevant factors but who nevertheless seek to practice law. To assure the maintenance of high moral and educational standards of the legal profession, lawyers should affirmatively assist courts and other appropriate bodies in promulgating, enforcing, and improving requirements for admission to the bar. In like manner, the bar has a positive obligation to aid in the continued improvement of all phases of pre-admission and post-admission legal education.
EC 1-3. Before recommending an applicant for admission, lawyers should satisfy themselves that the applicant is of good moral character. Although lawyers should not become self-appointed investigators or judges of applicants for admission, they should report to proper officials all unfavorable information they possess relating to the character or other qualifications of applicants.
EC 1-4. The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which the reporting lawyer believes clearly to be in violation of the Disciplinary Rules. A lawyer should upon request serve on and assist committees and boards having responsibility for the administration of the Disciplinary Rules.
EC 1-5. A lawyer should maintain high standards of professional conduct and should encourage fellow lawyers to do likewise. Lawyers should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct. Because of the lawyer's position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.
EC 1-6. An applicant for admission to the bar or a lawyer may be unqualified, temporarily or permanently for other than moral and educational reasons, such as mental or emotional instability. Lawyers should be diligent in taking steps to see that during a period of disqualification such person is not granted a license or, if licensed, is not permitted to practice. In like manner, when the disqualification has terminated, members of the bar should assist such person in being licensed, or, if licensed, in being restored to the person's full right to practice.
DR 1-101. Maintaining Integrity and Competence of the Legal Profession. — (A) A lawyer is subject to discipline for making a materially false statement in, or deliberately failing to disclose a material fact requested in connection with, an application for admission to the bar.
(B) A lawyer shall not further the application for admission to the bar of another person known by the lawyer to be unqualified in respect to character, education, or other relevant attribute.
DR 1-102. Misconduct. —(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
(7) Willfully refuse to comply with a court order entered in a case in which the lawyer is a party.
[As amended by order entered October 9, 1997.]
DR 1-103. Disclosure of Information to Authorities. — (A) A lawyer possessing unprivileged knowledge of a clear violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
(B) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.
EC 2-1. The need of members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to educate laypersons to recognize their problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.
EC 2-2. The legal profession should assist laypersons to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. Preparation of advertisements and professional articles for lay publications and participation in seminars, lectures, and civic programs should be motivated by a desire to educate the public to an awareness of legal needs and to provide information relevant to the selection of the most appropriate counsel rather than to obtain publicity for particular lawyers.
EC 2-3. Whether a lawyer acts properly in volunteering in-person advice to a layperson to seek legal services depends upon the circumstances. The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist laypersons in recognizing legal problems. The advice is proper only if motivated by a desire to protect one who does not recognize the presence of a legal problem or who is ignorant of the existence of legal rights or obligations. It is improper if motivated by a desire to obtain personal benefit, secure personal publicity, or cause legal action to be taken merely to harass or injure another. A lawyer should not initiate an in-person contact with a non-client, personally or through a representative, for the purpose of being retained to represent that non-client for compensation.
EC 2-4. Since motivation is subjective and often difficult to judge, the motives of a lawyer who volunteers in-person advice likely to produce legal controversy may well be suspect if the lawyer receives professional employment or other benefits as a result. A lawyer who volunteers in-person advice that one should obtain the services of a lawyer generally should not accept employment, compensation, or other benefits in connection with that matter. However, it is not improper for a lawyer to volunteer such advice and render resulting legal services to close friends, relatives, former clients (in regard to matters germane to former employment), and regular clients.
EC 2-5. A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for laypersons should caution them not to attempt to solve individual problems upon the basis of the information contained therein.
EC 2-6. Formerly a potential client usually knew the reputations of local lawyers for competency and integrity and therefore could select a practitioner in whom the potential client had confidence. This traditional selection process worked well because it was initiated by the client and the choice was an informed one.
EC 2-7. Changed conditions, however, have seriously restricted the effectiveness of the traditional selection process. Often the reputations of lawyers are not sufficiently known to enable laypersons to make intelligent choices. The law has become increasingly complex and specialized. Few lawyers are willing and competent to deal with every kind of legal matter, and many laypersons have difficulty in determining the competence of lawyers to render different types of legal services. The selection of legal counsel is particularly difficult for transients, persons moving into new areas, persons of limited education or means, and others who have little or no contact with lawyers. Lack of information about the availability of lawyers, the qualifications of particular lawyers, and the expense of legal representation leads laypersons to avoid seeking legal advice.
EC 2-8. Selection of a lawyer by a layperson should be made on an informed basis. Advice and recommendation of third parties —relatives, friends, acquaintances, business associates, or other lawyers —and disclosure of relevant information about the lawyer and the lawyer's practice may be helpful. In order to provide useful information to potential consumers of legal services, lawyers may advertise, but only in conformity with DR 2-101. Nothing in this Code shall be construed to require or prohibit the publication of fees for the performance of routine legal services. [As amended March 9, 1983.]
EC 2-9. The lack of sophistication on the part of many members of the public concerning legal services, the importance of the interests affected by the choice of a lawyer and prior experience with unrestricted lawyer advertising, require that special care be taken by lawyers to avoid misleading the public and to assure that the information set forth in any advertising is relevant to the selection of a lawyer. The lawyer must be mindful that the benefits of lawyer advertising depend upon its reliability and accuracy. Examples of information in lawyer advertising that would be deceptive include misstatements of fact, suggestions that the ingenuity or prior record of a lawyer rather than the justice of the claim are the principal factors likely to determine the result, inclusion of information irrelevant to selecting a lawyer, and representations concerning the quality of service, which cannot be measured or verified. Since lawyer advertising is calculated and not spontaneous, reasonable regulation of lawyer advertising designed to foster compliance with appropriate standards serves the public interest without impeding the flow of useful, meaningful, and relevant information to the public.
EC 2-10. A lawyer should ensure that the information contained in any advertising which the lawyer publishes, broadcasts or causes to be published or broadcast is relevant and is disseminated in an objective and understandable fashion. A lawyer should strive to communicate such information without undue emphasis upon style and advertising stratagems which serve to hinder rather than to facilitate intelligent selection of counsel. Because technological change is a recurrent feature of communications forms, and because perceptions of what is relevant in lawyer selection may change, lawyer advertising regulations should not be cast in rigid, unchangeable terms. Machinery is therefore available to advertisers and consumers for prompt consideration of proposals to change the rules governing lawyer advertising. The determination of any request for such change should depend upon whether the proposal is necessary in light of existing Code provisions, whether the proposal accords with standards of accuracy, reliability and truthfulness, and whether the proposal would facilitate informed selection of lawyers by potential consumers of legal services. Representatives of lawyers and consumers should be heard in addition to the applicant concerning any proposed change. Any change which is approved should be promulgated in the form of an amendment to the Code so that all lawyers practicing in the jurisdiction may avail themselves of its provisions.
EC 2-11. The name under which a lawyer conducts his or her practice may be a factor in the selection process. The use of a trade name or an assumed name could mislead laypersons concerning the identity, responsibility and status of those practicing thereunder. Accordingly, lawyers in private practice should practice only under a designation containing their own name, the name of a lawyer employing them, the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, the name of a professional legal corporation, or a professional limited liability legal company, which should be clearly designated as such. For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not mislead thereby. However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public. [Amended by order entered July 18, 1995.]
EC 2-12. Lawyers occupying a judicial, legislative, or public executive or administrative position who have the right to practice law concurrently may allow their names to remain in the name of the firm if they actively continue to practice law as members thereof. Otherwise, their names should be removed from the firm name, and they should not be identified as a past or present member of the firm; and they should not hold themselves out as being a practicing lawyer.
EC 2-13. In order to avoid the possibility of misleading the public, lawyers should be scrupulous in the representation of their professional status. They should not hold themselves out as being partners or associates of a law firm if they are not one in fact, and thus should not hold themselves out as partners or associates if they only share offices with another lawyer.
EC 2-14. In some instances a lawyer practices only in a particular field of law. In the absence of state controls to insure the existence of special competence, a lawyer should not be permitted to hold out as a specialist or as having official recognition as a specialist, other than in the fields of admiralty, trademark, and patent law where holding out as a specialist historically has been permitted. Pending the adoption of an appropriate rule, a lawyer may not indicate in permitted advertising a limitation of the lawyer's practice or a concentration in one or more particular areas or fields of law, except as provided for in EC 2-8.
EC 2-15. The legal profession has developed lawyer referral systems designed to aid individuals who are able to pay fees but need assistance in locating lawyers competent to handle their particular problems. Use of a lawyer referral system enables a nonlawyer to avoid an uninformed selection of a lawyer because such a system makes possible the employment of competent lawyers who have indicated an interest in the subject matter involved. Lawyers should support the principle of lawyer referral systems and should encourage the evolution of other ethical plans which aid in the selection of qualified counsel.
EC 2-16. The legal profession cannot remain a viable force in fulfilling its role in our society unless its members receive adequate compensation for services rendered, and reasonable fees should be charged in appropriate cases to clients able to pay them. Nevertheless, persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective.
EC 2-17. The determination of a proper fee requires consideration of the interests of both client and lawyer. A lawyer should not charge more than a reasonable fee, for excessive cost of legal service would deter laypersons from utilizing the legal system in protection of their rights. Furthermore, an excessive charge abuses the professional relationship between lawyer and client. On the other hand, adequate compensation is necessary in order to enable the lawyer to serve the lawyer's client effectively and to preserve the integrity and independence of the profession.
EC 2-18. The determination of the reasonableness of a fee requires consideration of all relevant circumstances, including those stated in the Disciplinary Rules. The fees of a lawyer will vary according to many factors, including the time required, the lawyer's experience, ability, and reputation, the nature of the employment, the responsibility involved, and the results obtained. It is a commendable and long-standing tradition of the bar that special consideration is given in the fixing of any fee for services rendered a fellow lawyer or a member of the lawyer's immediate family.
EC 2-19. As soon as feasible after a lawyer has been employed, it is desirable that the lawyer reach a clear agreement with the client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of the parties regarding the fee, particularly when it is contingent. A lawyer should be mindful that many persons who desire legal services may have had little or no experience with fee charges of lawyers, and for this reason the rationale for the particular fee arrangement proposed should be fully explained to such persons.
EC 2-20. Contingent fee arrangements in civil cases have long been commonly accepted in the United States in proceedings to enforce claims. The historical bases of their acceptance are that (1) they often, and in a variety of circumstances, provide the only practical means by which one having a claim against another can economically afford, finance, and obtain the services of a competent lawyer to prosecute the claim, and (2) a successful prosecution of the claim produces a res out of which the fee can be paid. Although a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case with any client who, after being fully informed of all relevant factors, desires that arrangement. Because of the humanrelationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified. In administrative agency proceedings contingent fee contracts should be governed by the same considerations as in other civil cases. Public policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a res with which to pay the fee.
EC 2-21. Lawyers should not accept compensation or anything of value incident to their employment or services from anyone other than their clients without the knowledge and consent of their clients after full disclosure.
EC 2-22. Without the consent of the client, a lawyer should not associate in a particular matter another lawyer outside the lawyer's firm. A fee may properly be divided between lawyers properly associated if the division is in proportion to the services performed and the responsibility assumed by each lawyer and if the total fee is reasonable.
EC 2-23. A lawyer should be zealous in efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. A lawyer should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.
EC 2-24. A layperson whose financial ability is not sufficient to permit payment of any fee cannot obtain legal services, other than in cases where a contingent fee is appropriate, unless the services are provided for that layperson. Even a person of moderate means may be unable to pay a reasonable fee which is large because of the complexity, novelty, or difficulty of the problem or similar factors.
EC 2-25. Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services.
EC 2-26. A lawyer is under no obligation to act as adviser or advocate for every person who may wish to become a client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of a share of tendered employment which may be unattractive both to the lawyer and the bar generally.
EC 2-27. History is replete with instances of distinguished and sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse.
EC 2-28. The personal preference of a lawyer to avoid adversary alignment against judges, other lawyers, public officials, or influential members of the community does not justify his rejection of tendered employment.
EC 2-29. When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case.
EC 2-30. Employment should not be accepted by a lawyer when the lawyer is unable to render competent service or when the lawyer knows or it is obvious that the person seeking to employ the lawyer desires to institute or maintain an action merely for the purpose of harassing or maliciously injuring another. Likewise, a lawyer should decline employment if the intensity of the lawyer's personal feeling, as distinguished from a community attitude, may impair the lawyer's effective representation of a prospective client. If a lawyer knows a client has previously obtained counsel, the lawyer should not accept employment in the matter unless the other counsel approves or withdraws, or the client terminates the prior employment.
EC 2-31. Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved. Trial counsel for a convicted defendant should continue to represent the client by advising whether to take an appeal and, if the appeal is prosecuted, by representing the client through the appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court.
EC 2-32. A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances, and in a matter pending before a tribunal the lawyer must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of the client and the possibility of prejudice to the client as a result of the lawyer's withdrawal. Even when the lawyer justifiably withdraws, a lawyer should protect the welfare of the client by giving due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm. Further, the lawyer should refund to the client any compensation not earned during the employment.
EC 2-33. As a part of the legal profession's commitment to the principle that high quality legal services should be available to all, attorneys are encouraged to cooperate with qualified legal assistance organizations providing prepaid legal services. Such participation should at all times be in accordance with the basic tenets of the profession: independence, integrity, competence and devotion to the interests of individual clients. An attorney so participating should make certain that the relationship with a qualified legal assistance organization in no way interferes with the lawyer's independent, professional representation of the interests of the individual client. An attorney should avoid situations in which officials of the organization who are not lawyers attempt to direct attorneys concerning the manner in which legal services are performed for individual members, and should also avoid situations in which considerations of economy are given undue weight in determining the attorneys employed by an organization or the legal services to be performed for the member or beneficiary rather than competence and quality of service. An attorney interested in maintaining the historic traditions of the profession and preserving the function of a lawyer as a trusted and independent advisor to individual members of society should carefully assess such factors when accepting employment by, or otherwise participating in, a particular qualified legal assistance organization, and while so participating should adhere to the highest professional standards of effort and competence.
DR 2-101. Publicity. — (A) Lawyers shall not, on behalf of themselves, their partners, associates or any other lawyers affiliated with them or their firm, use or participate in the use of, any form of public communication containing a false, fraudulent, misleading or deceptive statement or claim. A statement or claim is false, fraudulent, misleading or deceptive if it:
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement, considered as a whole, not materially misleading;
(2) Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the disciplinary rules or other law; or
(3) Compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.
(B) In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may, subject to DRs 2-101, 2-103 and 2-105, publish in print media or in handbills, circulars, direct mailings or the like, or broadcast through the electronic media, distributed in or covering the geographic area or areas in which the lawyer resides or maintains offices:
(1) Names, including name of law firm and names of professional associates; addresses and telephone numbers;
(2) Any legal service which he or she proposes to render;
(3) Date and place of birth;
(4) Date and place of admission to the bar of state and federal courts;
(5) Schools attended, with dates of graduation, degrees and scholastic distinctions;
(6) Public or quasi-public offices;
(7) Military service;
(8) Legal authorships;
(9) Legal teaching positions;
(10) Memberships, offices, and committee assignments, in bar associations;
(11) Membership and offices in legal fraternities and legal societies;
(12) Technical and professional licenses;
(13) Membership in scientific, technical and professional associations and societies;
(14) Foreign language ability;
(15) Names and addresses of bank references;
(16) With their written consent, names of clients regularly represented;
(17) Prepaid or group legal services programs in which the lawyer participates;
(18) Whether credit cards are accepted, or whether other credit arrangements are available upon request;
(19) Office and telephone answering service hours;
(20) Fee or absence of fee for an initial consultation, provided time limit, if any, is included;
(21) Availability upon request of a written schedule of fees and/or an estimate of the fee to be charged for specific services;
(22) Contingent fee rates subject to DR 2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of costs;
(23) Range of fees for services, provided that the statement discloses that the specific fee within the range which will be charged will vary depending upon the particular matter to be handled for each client and that the client is entitled, without obligation, to an estimate of the fee within the range likely to be charged, in print size equivalent to the largest print used in setting forth the fee information;
(24) Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and that the client is entitled, without obligation, to an estimate of the fee likely to be charged, in print size at least equivalent to the largest print used in setting forth the fee information;
(25) Fixed fees for specific legal services, the description of which would not be misleading or be deceptive, provided that the statement discloses that the quoted fee will be available to clients where matters fall into the services described and that the client is entitled, without obligation, to a specific estimate of the fee likely to be charged; and provided that the statement discloses whether court costs are included in or excluded from the stated fee; each disclosure to be in print size at least equivalent to the largest print used in setting forth the fee information.
(C) A lawyer who publishes or broadcasts a communication with regard to any area of law in which the lawyer practices shall:
(1) With respect to each area of law so advertised, publish or broadcast the name(s) of the lawyer(s), licensed to practice in Tennessee, who shall be responsible for the performance of the legal service in the area of law so advertised.
(2) If the lawyer has been certified as a specialist by the Tennessee Commission on Continuing Legal Education and Specialization in the area so advertised, state with respect to each area, “Certified as a (area of practice) Specialist by the Tennessee Commission on Continuing Legal Education and Specialization.”Any attorney so certified may also list any other certifications which he or she has obtained in that area of law, provided that the organizations issuing such certifications have been accredited by the Commission as complying with the requirements of this Rule, and provided further that such listing is in type not larger than that used to list certification from the Commission.
(3) If the lawyer has not been certified as a specialist by the Tennessee Commission on Continuing Legal Education and Specialization in an advertised area in which certification is available, state with respect to each such area, “Not certified as a (area of practice) specialist by the Tennessee Commission on Continuing Legal Education and Specialization.”
(4) If the lawyer has not been certified as a specialist by the Tennessee Commission on Continuing Legal Education and Specialization in an advertised area and if no certification is available from the Commission in that area of law, the lawyer may state “Certification as a (area of law) specialist is not currently available in Tennessee.”
(5) No lawyer shall state in an advertisement that certification is not available in an advertised area if the advertised area has been identified by the Commission as included in an area of specialization; or, in the absence of such identification, if the advertised area is reasonably included in a certified specialty.
(6) The disclosures required by this section must be included in any communication in a prominent manner.
(7) Television commercials must include the disclosures required by this section in the visible broadcast. In the visible broadcast of the disclosures, the size of print, in contrast with other images on the screen at the same time, and the duration of the broadcast must be adequate to ensure that television viewers with average vision and education can read the disclaimer with viewing the broadcast on standard television receiving equipment.
(8) No certification of specialization except as set forth in subsection (2) of this section may be advertised.
(D) Any person desiring to expand the information authorized for disclosure in DR 2-101(B), or to provide for its dissemination through other forums may apply to the Disciplinary Board of the Tennessee Supreme Court. Any such application shall also be served upon the applicable local and Tennessee Bar Associations, which shall be heard, together with the applicant, on the issue of whether the proposal accords with DR 2-101(A) and would facilitate the process of informed selection of lawyers by potential consumers of legal services. Any expansion recommended in response to any such application shall be presented to the Supreme Court of Tennessee for final approval and consideration as an amendment to DR 2-101(B) universally applicable to all lawyers.
(E) The lawyer shall approve each communication before it is released to the public.
(1) If the communication is to be broadcast by radio or television, it shall be prerecorded and the lawyer shall, before broadcast, hear and, in the case of a television communication, view the prerecorded tape.
(2) If the communication is to be distributed in printed or other written form, the lawyer shall, before distribution, read a correct and final proof.
(F) No later than three days after a communication has first been broadcast, published, or otherwise distributed, the lawyer shall mail or deliver, to the Board of Professional Responsibility, an accurate and complete copy of the communication.
(1) In the case of a broadcast communication, the copy must consist of a tape recording, including a recording of the visible as well as the audible portion of a television broadcast. The tape must conform to standard recording specifications, so that it can be played on standard tape playing equipment. The tape must be accompanied by a statement from the lawyer, identifying the broadcast station, date and hour of broadcast, and anticipated schedule and number of future rebroadcasts of the same tape. The lawyer need not notify the Board every time the same tape is rebroadcast, unless the schedule or number of rebroadcasts differs materially from the information contained in the statement that the lawyer filed with the tape originally.
(2) In the case of a printed or other written communication, the copy must be full-sized and clearly readable. The copy must be accompanied by a statement from the lawyer, identifying the manner and date of publication, and the name of any newspaper or other medium in which the publication will be contained. The lawyer need not notify the Board every time the same communication is republished or redistributed, unless the manner or medium differs materially from the information contained in the statement that the lawyer filed with the copy originally.
(3) By receiving the copies that lawyers file in accordance with this subparagraph, the Board is not deemed to approve of the communication represented by those copies.
(G) The Board may selectively examine the copies of communications filed by lawyers, and shall examine the copy of any communication about which the Board has received a complaint from a licensed attorney. The Board need not give notice or an opportunity to be heard to the lawyer whose copy is under examination, but the Board may give such notice or opportunity at its discretion. If the Board finds probable cause to believe that a communication has violated the Code of Professional Responsibility or other law, the Board shall submit a report to the Supreme Court, together with the Board's recommendations for action by the Court, and the Board shall cause a copy of its report and recommendations to be mailed or otherwise delivered to the affected lawyer.
(H) The Supreme Court, after receiving the Board's report and recommendations, and after giving the affected lawyer an opportunity to be heard, may issue an appropriate order, including disciplinary sanctions against the lawyer, an injunction to restrain future distribution of the communication, and any other appropriate remedies.
(I) If a lawyer advertises a fee for a service, the lawyer must render that service for no more than the fee advertised.
(J) If a lawyer publishes or broadcasts any fee information, the lawyer shall be bound by any representation made therein for a period of not less than 60 days after such publication or broadcast.
(K) This rule does not prohibit identification of a lawyer as a lawyer as well as by name:
(1) In political advertisements when professional status is germane to the political campaign or to a political issue.
(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.
(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which the lawyer serves as a director or officer.
(4) In and on legal documents prepared by the lawyer.
(5) In and on legal textbooks, treatises, and other legal publications, and in advertisements thereof.
(L) A lawyer shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item.
(M) Lawyers may advertise in established and regularly published print media and over established electronic media. Handbills, circulars, direct mail, or the like may be used, but only if the contents comply with all requirements that pertain to the print media, and if the persons who deliver the handbills, circulars, direct mail, and the like are not the lawyer or associates or members of the law firm advertised, and do not engage in solicitation. [As amended March 9, 1983, May 22, 1985, September 18, 1986, December 21, 1989; by order entered October 29, 1990, effective January 1, 1991; and by order entered July 1, 1993; and by order entered March 15, 1996.]
DR 2-102. Professional Notices, Letterheads, and Offices. — (A) A lawyer shall not use a firm name, letterhead or other professional designation that violates DR 2-101 or DR 2-105.
(B) A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation, professional association, or professional limited liability company may contain “P.C.”, “P.A.,”“P.L.L.C.”or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. Lawyers who assume a judicial, legislative, or public executive or administrative posts or offices shall not permit their names to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which they are not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use the absent lawyer's name in the firm name or in professional notices of the firm. This prohibition shall not apply to members of the Tennessee General Assembly.
(C) Lawyers shall not hold themselves out as having a partnership with one or more other lawyers unless they are in fact partners.
(D) A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.
(E) Lawyers who are engaged both in the practice of law and another profession or business shall not so indicate on their letterheads, office signs, or professional cards, nor shall they identify themselves as a lawyer in any publication in connection with their other profession or business.
(F) Nothing contained herein shall prohibit a lawyer making known the possession of an earned degree or title derived therefrom indicating training in the law. [As amended March 9, 1983, and by order entered July 18, 1995.]
DR 2-103. Recommendation of Professional Employment. — (A) A lawyer shall not, regarding employment as a private practitioner, except as authorized in DR 2-101(B), make a self-recommendation or recommend a partner or associate to a layperson who has not sought advice regarding employment of a lawyer.
(B) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that a lawyer may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).
(C) Lawyers shall not request a person or organization to recommend or promote the use of their services or those of their partners or associates, or any other lawyer affiliated with them or their firm, as a private practitioner, except as authorized in DR 2-101, and except that:
(1) Referrals may be requested from a lawyer referral service operated, sponsored, or approved by a bar association and fees may be paid incident thereto.
(2) The lawyer may cooperate with the legal service activities of any of the offices or organizations enumerated in DR 2-103(D)(1) through (4) and may perform legal services for those to whom he was recommended by it to do such work if:
(a) The person to whom the recommendation is made is a member or beneficiary of such office or organization; and
(b) The lawyer remains free to exercise his or her independent professional judgment on behalf of the lawyer's client.
(D) Lawyers or their partners or associates or any other affiliated lawyers may be recommended, employed or paid by, or may cooperate with, one of the following offices or organizations that promote the use of their services or those of the partners or associates or other affiliated lawyers if there is no interference with the exercise of independent professional judgment in behalf of the client:
(1) A legal aid office or public defender office:
(a) Operated or sponsored by a duly accredited law school.
(b) Operated or sponsored by a bona fide non-profit community organization.
(c) Operated or sponsored by a governmental agency.
(d) Operated, sponsored, or approved by a bar association.
(2) A military legal assistance office.
(3) A lawyer referral service operated, sponsored, or approved by a bar association.
(4) Any bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries provided the following conditions are satisfied:
(a) Such organization, including any affiliate, is so organized and operated that no profit is derived by it from the rendition of legal services by lawyers, and that, if the organization is organized for profit, the legal services are not rendered by lawyers employed, directed, supervised or selected by it except in connection with matters where such organization bears ultimate liability of its member or beneficiary.
(b) Neither lawyers, nor their partners, nor associates, nor any other affiliated lawyer, nor any non-lawyer, shall have initiated or promoted such organization for the primary purpose of providing financial or other benefit to such lawyer, partner, associate or affiliated lawyer.
(c) Such organization is not operated for the purpose of procuring legal work or financial benefit for any lawyer as a private practitioner outside of the legal services program of the organization.
(d) The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as a client of the lawyer in the matter.
(e) Any member or beneficiary who is entitled to have legal services furnished or paid for by the organization may, if such member or beneficiary so desires, select counsel other than that furnished, selected or approved by the organization for the particular matter involved; and the legal service plan of such organization provides appropriate relief for any member or beneficiary who asserts a claim that representation by counsel furnished, selected or approved would be unethical, improper or inadequate under the circumstances of the matter involved and the plan provides an appropriate procedure for seeking such relief.
(f) The lawyer does not know or have cause to know that such organization is in violation of applicable laws, rules of court and other legal requirements that govern its legal service operations.
(g) Such organization has filed with the appropriate disciplinary authority at least annually a report with respect to its legal service plan, if any, showing its terms, its schedule of benefits, its subscription charges, agreements with counsel, and financial results of its legal service activities or, if it has failed to do so, the lawyer does not know or have cause to know of such failure.
(E) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks the lawyer's services does so as a result of conduct prohibited under this Disciplinary Rule.
(A) Definitions. As used in this rule the following terms are defined as follows:
(1) “Solicit”means contact in person, by telephone, telegraph, facsimile, computer on-line transmission or by other communication directed to a specific recipient and includes any written form of communication directed to a specific recipient and not meeting the requirements of section (C) of this rule.
(2) “Written communication”means all forms of written communication including letter, telegraph, audio and video recording, facsimile, computer on-line transmission or other similar mode of communication.
(B) Solicitation.
(1) Except as provided herein, a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or current or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain; nor shall a lawyer permit employees or agents of the lawyer to solicit on the lawyer's behalf; nor shall a lawyer enter into an agreement for or charge or collect a fee for professional employment obtained in violation of this rule.
(2) Notwithstanding the provisions of subsection (B)(1),
(a) A lawyer may accept employment that results from the lawyer's participation in activities designed to educate laypersons to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by a qualified legal assistance organization.
(b) A lawyer who is recommended, furnished or paid by a qualified legal assistance organization enumerated in DR 2-103(D)(1) through (4) may represent a member or beneficiary thereof, to the extent and under the conditions prescribed therein.
(c) Without affecting the lawyer's right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not emphasize the lawyer's own professional experience or reputation and does not undertake to give individual advice.
(d) If success in asserting rights or defenses of a client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those persons with whom the lawyer or the lawyer's agent or employee has communicated, either in person or by live telephone or computer on-line contact, for purpose of obtaining their joinder.
(C) Written Communication.
(1) A lawyer shall not send, or knowingly permit to be sent, on the lawyer's behalf or on behalf of the lawyer's firm or on behalf of a partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, a written communication to a prospective client for the purpose of obtaining professional employment if:
(a) a significant motive for the solicitation is the lawyer's pecuniary gain and the solicitation concerns an action for personal injury, worker's compensation or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing or transmission of the communication or the lawyer has a family or current or prior professional relationship with the person solicited; or
(b) it has been made known to the lawyer that the person does not want to receive such communications; or
(c) the communication involves overreaching, coercion, duress, harassment, undue influence, intimidation, fraud, or wrongful interference with an existing contractual relationship between the person solicited and another lawyer; or
(d) any part of the communication is prohibited by DR 2-101, 2-102, or 2-105.
(2) Written communications to prospective clients for the purpose of obtaining professional employment are subject to the following requirements:
(a) Each communication, including envelopes and self-mailing brochures or pamphlets, shall include the words “THIS IS AN ADVERTISEMENT”in a prominent place at the beginning and end of each communication.
(i) In written communications sent by mail, telegraph, facsimile, or computer on-line transmission, the required wording shall appear in a conspicuous print size; and, the required wording shall appear on the outside envelope, if any, and at the beginning and end of the written material. If the written communication is a self-mailing brochure or pamphlet, the “THIS IS AN ADVERTISEMENT”notice shall appear on the address panel of the brochure or pamphlet.
(ii) In video recorded communications, the required wording shall appear conspicuously in the communication for at least five (5) seconds at the beginning and five (5) seconds at the end of the communication; and the required wording of the audio portion of the video communication shall appear as required in subsection (C)(2)(a)(iii).
(iii) In audio communications, the required wording shall appear in tone, volume, clarity and speed of delivery at least equivalent to the clearest quality, tone, volume, clarity and speed of the audio elsewhere in the communication, at the beginning and end of the communication.
(b) A lawyer shall not state or imply that a communication otherwise permitted by these rules has been approved by the Tennessee Supreme Court or the Board of Professional Responsibility.
(c) If a contract for representation is mailed with the communication, the top of each page of the contract shall be conspicuously marked “SAMPLE”and the words “DO NOT SIGN”shall appear on the client signature line.
(d) Written communications shall not be in the form of or include legal pleadings or other legal documents.
(e) Any communication prompted by a specific occurrence involving or affecting the recipient or a member of the recipient's family shall disclose how the lawyer obtained the information prompting the communication.
(f) A communication seeking employment by a specific prospective client in a specific matter shall not reveal on the envelope, or on the outside of a self-mailing brochure or pamphlet, the nature of the prospective client's legal matter.
(g) The first sentence of any written communication concerning a specific matter shall be: “If you have already hired or retained a lawyer for this matter, please disregard this letter.”
(h) Communications mailed to prospective clients shall be sent only by regular U.S. Mail, not by registered, certified or other forms of restricted delivery, express delivery or courier.
(i) A copy of each written communication, together with a copy of any envelope used in conjunction with the communication, sent to prospective clients shall be filed with the Board of Professional Responsibility within three days after the dispatch of the communication. The lawyer dispatching the communication shall also file the name of the person contacted and the person's address, telephone number, or telecommunication address to which the communication was sent within three days after the dispatch of the communication. If communications identical in content are sent to two (2) or more persons, the lawyer may comply with this requirement by filing a single copy together with a list of the names and addresses of persons to whom the communication was sent. If the lawyer periodically sends the identical communication to additional persons, lists of the additional names and addresses shall be filed with the Board of Professional Responsibility no less frequently than monthly.
[Amended by order entered March 15, 1996.]
DR 2-105. Limitation of Practice. — (A) Lawyers shall not hold themselves out publicly as specialists practicing in certain areas of law or as limiting their practice as permitted under DR 2-101(B), except as follows:
(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation “Patents,”“Patent Attorney,”“Patent Lawyer,”or “Registered Patent Attorney”or any combination of those terms, on a letterhead and office sign.
(2) No lawyer shall hold himself or herself out as a specialist in a particular field of law or law practice, unless and until authorized to do so by the Supreme Court of Tennessee in accordance with such rules as may be prescribed by said Court.
DR 2-106. Fees for Legal Services. — (A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides 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.
(C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.
DR 2-107. Division of Fees Among Lawyers. — (A) A lawyer shall not divide a fee for legal services with another lawyer who is not the lawyer's partner in or associate of the lawyer's law firm or law office, unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
(2) The division is made in proportion to the services performed and responsibility assumed by each.
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
(B) This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.
DR 2-108. Agreements Restricting the Practice of a Lawyer. — (A) A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.
(B) In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts the right to practice law.
DR 2-109. Acceptance of Employment. — (A) A lawyer shall not accept employment on behalf of a person if he knows or it is obvious that such person wishes to:
(1) Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken, merely for the purpose of harassing or maliciously injuring any person.
(2) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.
DR 2-110. Withdrawal from Employment. — (A) In general.
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) In any event, a lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.
(B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
(1) The lawyer knows or it is obvious that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for the client, merely for the purpose of harassing or maliciously injuring any person.
(2) The lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule.
(3) The lawyer's mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively.
(4) The lawyer is discharged by his client.
(C) Permissive withdrawal.
If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:
(1) The client:
(a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.
(b) Personally seeks to pursue an illegal course of conduct.
(c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules.
(d) By other conduct renders it unreasonably difficult for the lawyer to carry out the employment effectively.
(e) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules.
(f) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.
(2) The lawyer's continued employment is likely to result in a violation of a Disciplinary Rule.
(3) The lawyer's inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal.
(4) The lawyer's mental or physical condition renders it difficult for the lawyer to carry out the employment effectively.
(5) The client knowingly and freely assents to termination of employment.
(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
EC 3-1. The prohibition against the practice of law by a layperson is grounded in the need of the public for integrity and competence of those who undertake to render legal services. Because of the fiduciary and personal character of the lawyer-client relationship and the inherently complex nature of our legal system, the public can better be assured of the requisite responsibility and competence if the practice of law is confined to those who are subject to the requirements and regulations imposed upon members of the legal profession.
EC 3-2. The sensitive variations in the considerations that bear on legal determinations often make it difficult even for a lawyer to exercise appropriate professional judgment, and it is therefore essential that the personal nature of the relationship of client and lawyer be preserved. Competent professional judgment is the product of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment.
EC 3-3. A non-lawyer who undertakes to handle legal matters is not governed as to integrity or legal competence by the same rules that govern the conduct of a lawyer. A lawyer is not only subject to that regulation but also is committed to high standards of ethical conduct. The public interest is best served in legal matters by a regulated profession committed to such standards. The Disciplinary Rules protect the public in that they prohibit a lawyer from seeking employment by improper overtures, from acting in cases of divided loyalties, and from submitting to the control of others in the exercise of the lawyer's judgment. Moreover, a person who entrusts legal matters to a lawyer is protected by the attorney-client privilege and by the duty of the lawyer to hold inviolate the confidences and secrets of the client.
EC 3-4. Laypersons who seek legal services often are not in a position to judge whether they will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, the reputation, the property, the freedom, or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of a lawyer unless that person is subject to the regulations of the legal profession.
EC 3-5. It is neither necessary nor desirable to attempt the formulation of a single specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is the lawyer's educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.
EC 3-6. A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more economically and efficiently.
EC 3-7. The prohibition against a non-lawyer practicing law does not prevent self representation by a non-lawyer, for that ordinarily exposes only the pro se individual to possible injury. The purpose of the legal profession is to make educated legal representation available to the public; but anyone who does not wish to take advantage of such representation is not required to do so. Even so, the legal profession should help members of the public to recognize legal problems and to understand why it may be unwise for them to act for themselves in matters having legal consequences.
EC 3-8. Since a lawyer should not aid or encourage a layperson to practice law, the lawyer should not practice law in association with a layperson or otherwise share legal fees with a layperson. This does not mean, however, that the pecuniary value of the interest of a deceased lawyer in a firm or practice may not be paid to the deceased lawyer's estate or specified persons such as a surviving spouse or heirs. In like manner, profit-sharing retirement plans of a lawyer or law firm which include non-lawyer office employees are not improper. These limited exceptions to the rule against sharing legal fees with laypersons are permissible since they do not aid or encourage laypersons to practice law.
EC 3-9. Regulation of the practice of law is accomplished principally by the respective states. Authority to engage in the practice of law conferred in any jurisdiction is not per se a grant of the right to practice elsewhere, and it is improper for a lawyer to engage in practice where the lawyer is not permitted by law or by court order to do so. However, the demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states. In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of a client or upon the opportunity of a client to obtain the services of a lawyer of the client's choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice.
DR 3-101. Aiding Unauthorized Practice of Law. — (A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law.
(B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.
DR 3-102. Dividing Legal Fees with a Non-Lawyer. — (A) A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
(1) Agreements by lawyers with their firms, partners, or associates may provide for the payment of money, over a reasonable period of time following death, to the lawyers' estates 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 or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.
DR 3-103. Forming a Partnership with a Non-Lawyer. — (A) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.
EC 4-1. Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ the lawyer. A client must feel free to discuss whatever the client wishes with the lawyer and a lawyer must be equally free to obtain information beyond that volunteered by the client. A lawyer should be fully informed of all the facts of the matter the lawyer is handling in order for the client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of the lawyer's independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages laypersons to seek early legal assistance.
EC 4-2. The obligation to protect confidences and secrets obviously does not preclude a lawyer from revealing information when the client consents after full disclosure, when necessary to perform the lawyer's professional employment, when permitted by a Disciplinary Rule, or when required by law. Unless the client otherwise directs, a lawyer may disclose the affairs of the client to partners or associates of the lawyer's firm. It is a matter of common knowledge that the normal operation of a law office exposes confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the files; and this obligates a lawyer to exercise care in selecting and training employees so that the sanctity of all confidences and secrets of clients may be preserved. If the obligation extends to two or more clients as to the same information, a lawyer should obtain the permission of all before revealing the information. A lawyer must always be sensitive to the rights and wishes of the client and act scrupulously in the making of decisions which may involve the disclosure of information obtained in the professional relationship. Thus, in the absence of consent of the client after full disclosure, a lawyer should not associate another lawyer in the handling of a matter; nor should the lawyer, in the absence of consent, seek counsel from another lawyer if there is a reasonable possibility that the identity of the client or the client's confidences or secrets would be revealed to such lawyer. Both social amenities and professional duty should cause a lawyer to shun indiscreet conversations concerning that lawyer's clients.
EC 4-3. Unless the client otherwise directs, it is not improper for a lawyer to give limited information from the lawyer's files to an outside agency necessary for statistical, bookkeeping, accounting, data processing, banking, printing, or other legitimate purposes, provided the lawyer exercises due care in the selection of the agency and warns the agency that the information must be kept confidential.
EC 4-4. The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of the client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege; for example, a lawyer should avoid professional discussions in the presence of persons to whom the privilege does not extend. A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client.
EC 4-5. A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of the client after full disclosure, such information for the lawyer's own purposes. Likewise, a lawyer should be diligent in efforts to prevent the misuse of such information by the lawyer's employees and associates. Care should be exercised by a lawyer to prevent the disclosure of the confidences and secrets of one client to another, and no employment should be accepted that might require such disclosure.
EC 4-6. The obligation of a lawyer to preserve the confidences and secrets of the client continues after the termination of employment. Thus a lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets. A lawyer should also provide for the protection of the confidences and secrets of the client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to the client and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration.
DR 4-101. Preservation of Confidences and Secrets of a Client. — (A) “Confidence”refers to information protected by the attorney-client privilege under applicable law, and “secret”refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of a client.
(2) Use a confidence or secret of a client to the disadvantage of the client.
(3) Use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of the client to commit a crime and the information necessary to prevent the crime.
(4) Confidences or secrets necessary to establish or collect the lawyer's fee or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.
(D) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.
EC 5-1. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties. Neither the lawyer's personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute the lawyer's loyalty to the client.
EC 5-2. A lawyer should not accept proffered employment if the lawyer's personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client. After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make the lawyer's judgment less protective of the interests of the client.
EC 5-3. The self-interest of a lawyer resulting from the lawyer's ownership of property in which a client also has an interest or which may affect property of a client may interfere with the exercise of free judgment on behalf of that client. If such interference would occur with respect to a prospective client, a lawyer should decline employment proffered by that prospective client. After accepting employment, a lawyer should not acquire property rights that would adversely affect professional judgment in the representation of the client. Even if the property interests of a lawyer do not presently interfere with the exercise of the lawyer's independent judgment, but the likelihood of interference can reasonably be foreseen, a lawyer should explain the situation to the client and should decline employment or withdraw unless the client consents to the continuance of the relationship after full disclosure. A lawyer should not seek to persuade the client to permit the lawyer to invest in an undertaking of the client nor make improper use of the professional relationship to influence the client to invest in an enterprise in which the lawyer is interested.
EC 5-4. If, in the course of the representation of a client, a lawyer is permitted to receive from the client a beneficial ownership in publication rights relating to the subject matter of the employment, the lawyer may be tempted to subordinate the interests of the client to the lawyer's own anticipated pecuniary gain. For example, a lawyer in a criminal case who obtains from the client television, radio, motion picture, newspaper, magazine, book, or other publication rights with respect to the case may be influenced, consciously or unconsciously, to a course of conduct that will enhance the value of the publication rights to the prejudice of the client. To prevent these potentially differing interests, such arrangements should be scrupulously avoided prior to the termination of all aspects of the matter giving rise to the employment, even though the employment has previously ended.
EC 5-5. A lawyer should not suggest to a client that a gift be made to the lawyer or for the benefit. If a lawyer accepts a gift from a client, the lawyer is peculiarly susceptible to the charge that the lawyer unduly influenced or overreached the client. If a client voluntarily offers to make a gift to the lawyer, the lawyer may accept the gift, but before doing so, the lawyer should urge that the client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in which a client desires to name the lawyer beneficially be prepared by another lawyer selected by the client.
EC 5-6. A lawyer should not consciously influence a client to name the lawyer as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name the lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety.
EC 5-7. The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of a client during litigation generally makes it undesirable for the lawyer to acquire a proprietary interest in the cause of a client or otherwise to become financially interested in the outcome of the litigation. However, it is not improper for a lawyer to protect the right to collect a fee for the lawyer's services by the assertion of legally permissible liens, even though by doing so the lawyer may acquire an interest in the outcome of litigation. Although a contingent fee arrangement gives a lawyer a financial interest in the outcome of litigation, a reasonable contingent fee is permissible in civil cases because it may be the only means by which a nonlawyer can obtain the services of a lawyer of choice. But a lawyer, because the lawyer is in a better position to evaluate a cause of action, should enter into a contingent fee arrangement only in those instances where the arrangement will be beneficial to the client.
EC 5-9. Occasionally a lawyer is called upon to decide in a particular case whether the lawyer will be a witness or an advocate. If a lawyer is both counsel and witness, the lawyer becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing the advocate's own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.
EC 5-10. Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, the lawyer's decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that the lawyer will be called as a witness because the lawyer's testimony would be merely cumulative or if the testimony will relate only to an uncontested issue. In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when the lawyer will likely be a witness on a contested issue, the lawyer may serve as advocate even though the lawyer may be a witness. In making such decision, the lawyer should determine the personal or financial sacrifice of the client that may result from this refusal of employment or withdrawal therefrom, the materiality of the testimony, and the effectiveness of the representation in view of the lawyer's personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against becoming or continuing as an advocate.
EC 5-11. A lawyer should not permit personal interests to influence the advice relative to a suggestion by the client that additional counsel be employed. In like manner, personal interests should not deter the lawyer from suggesting that additional counsel be employed; on the contrary, the lawyer should be alert to the desirability of recommending additional counsel when, in the lawyer's judgment, the proper representation of the client requires it. However, a lawyer should advise the client not to employ additional counsel suggested by the client if the lawyer believes that such employment would be a disservice to the client, and the lawyer should disclose the reasons for that belief.
EC 5-12. Inability of co-counsel to agree on a matter vital to the representation of their client requires that their disagreement be submitted by them jointly to their client for his resolution, and the decision of the client shall control the action to be taken.
EC 5-13. A lawyer should not maintain membership in or be influenced by any organization of employees that undertakes to prescribe, direct, or suggest when or how he should fulfill his professional obligations to a person or organization that employs him as a lawyer. Although it is not necessarily improper for a lawyer employed by a corporation or similar entity to be a member of an organization of employees, he should be vigilant to safeguard his fidelity as a lawyer to his employer, free from outside influences.
EC 5-14. Maintaining the independence of professional judgment required of a lawyer precludes the acceptance or continuation of employment that will adversely affect the lawyer's judgment on behalf of or dilute the lawyer's loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.
EC 5-15. If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, the lawyer must weigh carefully the possibility that the lawyer's judgment may be impaired or loyalty divided if the lawyer accepts or continues the employment. A lawyer should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which the lawyer would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, the lawyer would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason, it is preferable that the lawyer refuse the employment initially. On the other hand, there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests in matters not involved in litigation. If the interests vary only slightly, it is generally likely that the lawyer will not be subjected to an adverse influence and that the lawyer can retain independent judgment on behalf of each client; and if the interests become differing, withdrawal is less likely to have a disruptive effect upon the causes of clients.
EC 5-16. In those instances in which a lawyer is justified in representing two or more clients having differing interests, it is nevertheless essential that each client be given the opportunity to evaluate the need for representation free of any potential conflict and to obtain other counsel if the client so desires. Thus before a lawyer may represent multiple clients, the lawyer should explain fully to each client the implications of the common representation and should accept or continue employment only if the clients consent. If there are present other circumstances that might cause any of the multiple clients to question the undivided loyalty of the lawyer, the lawyer should also advise all of the clients of those circumstances.
EC 5-17. Typically recurring situations involving potentially differing interests are those in which a lawyer is asked to represent co-defendants in a criminal case, co-plaintiffs in a personal injury case, an insured and the insurer, and beneficiaries of the estate of a decedent. Whether a lawyer can fairly and adequately protect the interests of multiple clients in these and similar situations depends upon an analysis of each case. In certain circumstances, there may exist little chance of the judgment of the lawyer being adversely affected by the slight possibility that the interests will become actually differing; in other circumstances, the chance of adverse effect upon the lawyer's judgment is not unlikely.
EC 5-18. A lawyer employed or retained by a corporation or similar entity owes allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity. In advising the entity, a lawyer should keep paramount its interests and the lawyer's professional judgment should not be influenced by the personal desires of any person or organization. Occasionally a lawyer for an entity is requested by a stockholder, director, officer, employee, representative, or other person connected with the entity to represent that person in an individual capacity; in such case the lawyer may serve the individual only if the lawyer is convinced that differing interests are not present.
EC 5-19. A lawyer may represent several clients whose interests are not actually or potentially differing. Nevertheless, the lawyer should explain any circumstances that might cause a client to question the lawyer's undivided loyalty. Regardless of the belief of a lawyer that the lawyer may properly represent multiple clients, the lawyer must defer to a client who holds the contrary belief and withdraw from representation of that client.
EC 5-20. A lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. The lawyer may serve in either capacity if the lawyer first discloses such present or former relationships. After a lawyer has undertaken to act as an impartial arbitrator or mediator, the lawyer should not thereafter represent in the dispute any of the parties involved.
EC 5-21. The obligation of a lawyer to exercise professional judgment solely on behalf of the client requires that the lawyer disregard the desires of others that might impair the lawyer's free judgment. The desires of a third person will seldom adversely affect a lawyer unless that person is in a position to exert strong economic, political, or social pressures upon the lawyer. These influences are often subtle, and a lawyer must be alert to their existence. A lawyer subjected to outside pressures should make full disclosure of them to the client; and if the lawyer or the client believes that the effectiveness of the lawyer's representation has been or will be impaired thereby, the lawyer should take proper steps to withdraw from representation of the client.
EC 5-22. Economic, political, or social pressure by third persons are less likely to impinge upon the independent judgment of a lawyer in a matter in which the lawyer is compensated directly by the client and professional work is exclusively with the client. On the other hand, if a lawyer is compensated from a source other than the client, the lawyer may feel a sense of responsibility to someone other than the client.
EC 5-23. A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to individual clients. Others may be far more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer's individual client. On some occasions, decisions on priority of work may be made by the employer rather than the lawyer with the result that prosecution of work already undertaken for clients is postponed to their detriment. Similarly, an employer may seek, consciously or unconsciously, to further its own economic interests through the actions of the lawyers employed by it. Since a lawyer must always be free to exercise professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of professional freedom.
EC 5-24. To assist a lawyer in preserving professional independence, a number of courses are available. For example, a lawyer should not practice with or in the form of a professional legal corporation, professional limited liability legal company or similar form even though such form is permitted by law, if any director, officer, manager, stockholder or member of it is a non-lawyer. Although a lawyer may be employed by a business corporation, limited liability company or other organization with non-lawyers serving as directors or officers, and they necessarily have the right to make decisions of business policy, a lawyer must decline to accept direction of professional judgment from any layman. Various types of legal aid offices are administered by boards of directors composed of lawyers and laymen. A lawyer should not accept employment from such an organization unless the board sets only broad policies and there is no interference in the relationship of the lawyer and the individual client the lawyer serves. Where a lawyer is employed by an organization, a written agreement that defines the relationship between the lawyer and the organization and provides for the lawyer's independence is desirable since it may serve to prevent misunderstanding as to their respective roles. Although other innovations in the means of supplying legal counsel may develop, the responsibility of the lawyer to maintain professional independence remains constant, and the legal profession must insure that changing circumstances do not result in loss of the professional independence of the lawyer. [Amended by order entered July 18, 1995.]
DR 5-101. Refusing Employment When the Interests of the Lawyer May Impair the Lawyer's Independent Professional Judgment. — (A) Except with the consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests.
(B) A lawyer shall not accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that the lawyer or a lawyer in the lawyer's firm ought to be called as a witness, except that the lawyer may undertake the employment and the lawyer or a lawyer in the lawyer's firm may testify:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the lawyer's firm to the client.
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or the lawyer's firm as counsel in the particular case.
DR 5-102. Withdrawal as Counsel When the Lawyer Becomes a Witness. — (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in the lawyer's firm ought to be called as a witness on behalf of the client, the lawyer shall withdraw from the conduct of the trial and the firm, if any, shall not continue representation in the trial, except that the lawyer may continue the representation and the lawyer or a lawyer in the lawyer's firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in the lawyer's firm may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client.
DR 5-103. Avoiding Acquisition of Interest in Litigation. — (A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that a lawyer may:
(1) Acquire a lien granted by law to secure the lawyer's fee or expenses.
(2) Contract with a client for a reasonable contingent fee in a civil case.
(B) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.
DR 5-104. Limiting Business Relations with a Client. — (A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise the lawyer's professional judgment therein for the protection of the client, unless the client has consented after full disclosure.
(B) Prior to conclusion of all aspects of the matter giving rise to the employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in publication rights with respect to the subject matter of the employment or proposed employment.
DR 5-105. Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer. — (A) A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer's representation of another client, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that the lawyer can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's independent professional judgment on behalf of each.
(D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with that lawyer or that lawyer's firm may accept or continue such employment.
DR 5-106. Settling Similar Claims of Clients. — (A) A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against those clients, unless each client has consented to the settlement after being advised of the existence and nature of all the claims involved in the proposed settlement, of the total amount of the settlement, and of the participation of each person in the settlement.
DR 5-107. Avoiding Influence by Others Than the Client. — (A) Except with the consent of the client after full disclosure, a lawyer shall not:
(1) Accept compensation for legal services from one other than the client.
(2) Accept from one other than the client any thing of value related to the lawyer's representation of or the lawyer's employment by the client.
(B) 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.
(C) A lawyer shall not practice with or in the form of a professional corporation, professional association, professional limited liability company or similar form, authorized to practice law for a profit, if:
(1) A non-lawyer 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 non-lawyer is a corporate director, officer, or equivalent thereof; or
(3) A non-lawyer has the right to direct or control the professional judgment of a lawyer. [Amended by order entered July 18, 1995.]
EC 6-1. Because of the lawyer's vital role in the legal process, a lawyer should act with competence and proper care in representing clients. Lawyers should strive to become and remain proficient in their practice and should accept employment only in matters which they are or intend to become competent to handle.
EC 6-2. A lawyer is aided in attaining and maintaining competence by keeping abreast of current legal literature and developments, participating in continuing legal education programs, concentrating in particular areas of the law, and by utilizing other available means. A lawyer has the additional ethical obligation to assist in improving the legal profession, and may do so by participating in bar activities intended to advance the quality and standards of members of the profession. Of particular importance is the careful training of younger associates and the giving of sound guidance to all lawyers who request it. In short, a lawyer should strive at all levels to aid the legal profession in advancing the highest possible standards of integrity and competence and to meet those standards personally.
EC 6-3. While the licensing of a lawyer is evidence that the lawyer has met the standards then prevailing for admission to the bar, a lawyer generally should not accept employment in any area of the law in which the lawyer is not qualified. However, a lawyer may accept such employment if in good faith the lawyer expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to the client. Proper preparation and representation may require the association by the lawyer of professionals in other disciplines. A lawyer offered employment in a matter in which the lawyer is not and does not expect to become so qualified should either decline the employment or, with the consent of the client, accept the employment and associate a lawyer who is competent in the matter.
EC 6-4. Having undertaken representation, a lawyer should use proper care to safeguard the interests of the client. If a lawyer has accepted employment in a matter beyond the lawyer's competence but in which the lawyer expected to become competent, the lawyer should diligently undertake the work and study necessary to become qualified. In addition to being qualified to handle a particular matter, the obligation to the client requires the lawyer to prepare adequately for and give appropriate attention to the lawyer's legal work.
EC 6-5. A lawyer should have pride in all professional endeavors. The obligation to act competently calls for higher motivation than that arising from fear of civil liability or disciplinary penalty.
EC 6-6. A lawyer should not seek, by contract or other means, to limit the lawyer's individual liability to the client for the lawyer's malpractice. A lawyer who handles the affairs of the client properly has no need to attempt to limit liability for professional activities and one who does not handle the affairs of the client properly should not be permitted to do so. A lawyer who is a stockholder or member in or is associated with a professional legal corporation or professional limited liability legal company may, however, limit liability for malpractice of the lawyer's associates in the firm, but only to the extent permitted by law. [Amended by order entered July 18, 1995.]
DR 6-101. Failing to Act Competently. — (A) A lawyer shall not:
(1) Handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.
(2) Handle a legal matter without preparation adequate in the circumstances.
(3) Neglect a legal matter entrusted to the lawyer.
DR 6-102. Limiting Liability to Client. — (A) A lawyer shall not attempt to exculpate or limit liability to clients for personal malpractice.
EC 7-1. The duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law, which include Disciplinary Rules and enforceable professional regulations. The professional responsibility of a lawyer derives from the lawyer's membership in a profession which has the duty of assisting members of the public to secure and protect available legal rights and benefits. In our government of laws and not of men, each member of our society is entitled to have his conduct judged and regulated in accordance with the law; to seek any lawful objective through legally permissible means; and to present for adjudication any lawful claim, issue, or defense.
EC 7-2. The bounds of the law in a given case are often difficult to ascertain. The language of legislative enactments and judicial opinions may be uncertain as applied to varying factual situations. The limits and specific meaning of apparently relevant law may be made doubtful by changing or developing constitutional interpretations, inadequately expressed statutes or judicial opinions, and changing public and judicial attitudes. Certainty of law ranges from well-settled rules through areas of conflicting authority to areas without precedent.
EC 7-3. Where the bounds of law are uncertain, the action of a lawyer may depend on whether the lawyer is serving as advocate or adviser. A lawyer may serve simultaneously as both advocate and adviser, but the two roles are essentially different. In asserting a position on behalf of a client, an advocate for the most part deals with past conduct and must take the facts as the lawyer finds them. By contrast, a lawyer serving as adviser primarily assists the client in determining the course of future conduct and relationships. While serving as advocate, a lawyer should resolve in favor of the client doubts as to the bounds of the law. In serving a client as adviser, a lawyer in appropriate circumstances should give a professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law.
EC 7-4. The advocate may urge any permissible construction of the law favorable to a client, without regard to the lawyer's professional opinion as to the likelihood that the construction will ultimately prevail. The lawyer's conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.
EC 7-5. A lawyer as adviser furthers the interest of a client by giving the lawyer's professional opinion as to what the lawyer believes would likely be the ultimate decision of the courts on the matter at hand and by informing the client of the practical effect of such decision. A lawyer may continue in the representation of the client even though the client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as the lawyer does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position. A lawyer should never encourage or aid a client to commit criminal acts or counsel a client on how to violate the law and avoid punishment therefor.
EC 7-6. Whether the proposed action of a lawyer is within the bounds of the law may be a perplexing question when the client is contemplating a course of conduct having legal consequences that vary according to the client's intent, motive, or desires at the time of the action. Often a lawyer is asked to assist a client in developing evidence relevant to the state of mind of the client at a particular time. A lawyer may properly assist a client in the development and presentation of evidence of existing motive, intent, or desire; obviously, the lawyer may not do anything furthering the creation or preservation of false evidence. In many cases a lawyer may not be certain as to the state of mind of the client, and in those situations the lawyer should resolve reasonable doubts in favor of the client.
EC 7-7. In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on the lawyer's own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on the lawyer. As typical examples in civil cases, it is for the client to decide whether to accept a settlement offer or whether to waive the right to plead an affirmative defense. A defense lawyer in a criminal case has the duty to advise the client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.
EC 7-8. A lawyer should exert the lawyer's best efforts to insure that decisions of the client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making pr