Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/profcon2.asc

Text File | 1993-08-16 | 54.8 KB | 1,111 lines

/* We continue with part 2 of the rules of professional conduct
for attorneys. */

Comment

Loyalty to a client

    Loyalty is an essential element in the lawyer's relationship
to a client.  An inpermissable conflict of interest may exist
before representation is undertaken, in which event the
representation should be declined.  If such a conflict arises
after representation has been undertaken, the lawyer should
withdraw from the representation.  See rule 4-1.16.  Where more
than one client is involved and the lawyer withdraws because a
conflict arises after representation, whether the lawyer may
continue to represent any of the clients is determined by rule 4-
1.9.  See also rule 4-2.2(c).  As to whether a client-lawyer
relationship exists or having once been established, is
continuing, see comment to rule 4-1.3 and scope.

    As a general proposition, loyalty to a client prohibits
undertaking representation directly adverse to that client or
another client's interests without the affected client's consent.
Paragraph (a) expresses that general rule.  Thus, a lawyer
ordinarily may not act as advocate against a person the lawyer
represents in some other matter, even if it is wholly unrelated.
On the other hand, simultaneous representation in unrelated
matters of clients whose interests are only generally adverse,
such as competing economic enterprises, does not require consent
of the respective clients.  Paragraph (a) applies only  when the
representation of one client would be directly adverse to the
other and where the lawyer's responsibilities of loyalty and
confidentiality of the other client might be compromised.

    Loyalty to a client is also impaired when a lawyer cannot
consider, recommend, or carry out an appropriate course of action
for the client because of the lawyer's other responsibilities or
interests.  The conflict in effect  forecloses alternatives that
would otherwise be available to the client.  Paragraph (b)
addresses such situations.  A possible conflict does not itself
preclude the representation.  The critical questions are the
likelihood that a conflict will eventuate and, if it does,
whether it will materially interfere with the lawyer's
independent professional judgment in considering alternatives or
foreclose courses of action that reasonably should be pursued on
behalf of the client.  Consideration should be given to whether
the client wishes to accommodate the other interest involved.

Consultation and consent

    A client may consent to representation notwithstanding a
conflict.  However, as indicated in paragraph (a)(1) with respect
to representation directly adverse to a client and paragraph
(b)(1) with respect to material limitations on representation of
a client, when a disinterested lawyer would conclude that the

client should not agree to the representation under the
circumstances, the lawyer involved cannot properly ask for such
agreement or provide representation on the basis of the client's
consent.  When more than one client is involved, the question of
conflict must be resolved as to each client.  Moreover, there may
be circumstances where it is impossible to make the disclosure
necessary to obtain consent.  For example, when the lawyer
represents different clients in related matters and one of the
clients refuses to consent to the disclosure necessary to permit
the other client to make an informed decision, the lawyer cannot
properly ask the latter to consent.

Lawyer's interests

    The lawyer's own interests should not be permitted to have
adverse effect on representation of a client.  For example, a
lawyer's need for income should not lead the lawyer to undertake
matters that cannot be handled competently and at a reasonable
fee.  See rules 4-1.1 and 4-1.5.  If the probity of a lawyer's
own conduct in a transaction is in serious question, it may be
difficult or impossible for the lawyer to give a client detached
advice. A lawyer may not allow related business interests to
affect representation, for example, by referring clients to an
enterprise in which the lawyer has an undisclosed interest.

Conflicts in litigation

    Paragraph (a) prohibits representation of opposing parties in
litigation.  Simultaneous representation of parties whose
interests in litigation may conflict, such as co-plaintiffs or
co-defendants, is governed by paragraphs (b) and (c).  An
impermissible conflict may exist by reason of substantial
discrepancy in the parties' testimony, incompatibility in
positions in relation to an opposing party or the fact that there
are substantially different possibilities of settlement of the
claims or liabilities in question.  Such conflicts can arise in
criminal cases as well as civil.  The potential for conflict of
interest in representing multiple defendants in a criminal case
is so grave that ordinarily a lawyer should decline to represent
more than one co-defendant.  On the other hand, common
representation of persons having similar interests is proper if
the risk of adverse effect is minimal and the requirements of
paragraph (b) are met.  Compare rule 4-2.2 involving
intermediation between clients.

    Ordinarily, a lawyer may not act as advocate against a
client the lawyer represents in some other matter, even if the
other matter is wholly unrelated.  However, there are
circumstances in which a lawyer may act as advocate against a
client.  For example, a lawyer representing an enterprise with
diverse operations may accept employment as an advocate against
the enterprise in an unrelated matter if doing so will not
adversely affect the lawyer's relationship with the enterprise or
conduct of the suit and if both clients consent upon
consultation.  By the same token, government lawyers in some
circumstances may represent government employees in proceedings
in which a government agency is the opposing party.  The
propriety of concurrent representation can depend on the nature
of the litigation.  For example, a suit charging fraud entails
conflict to a degree not involved in a suit for a declaratory
judgment concerning statutory interpretation.

    A lawyer may represent parties have antagonistic positions
on a legal question that has arisen in different cases, unless
representation of either client would be adversely affected.
Thus, it is ordinarily not improper to assert such positions in
cases pending in different trial courts, but it may be improper
to do so in cases pending at the same time in an appellate court.

Interest of person paying for a lawyer's service

    A lawyer may be paid from a source other than the client, if
the client is informed of that fact and consents and the
arrangement does not compromise the lawyer's duty of loyalty to
the client.  See rule 4-1.8(f).  For example, when an insurer and
its insured have conflicting interests in a matter arising from a
liability insurance agreement and the insurer is required to
provide special counsel for the insured, the arrangement should
assure the special counsel's professional independence.  So also,
when a corporation and its directors or employees are involved in
a controversy in which they have conflicting interests, the
corporation may provide funds for separate legal representation
of the directors of employees, if the clients consent after
consultation and the arrangement ensures the lawyer's
professional independence.

Other conflict situations

    Conflicts of interest in contexts other than litigation
sometimes may be difficult to assess.  Relevant factors in
determining whether there is potential for adverse effect include
the duration and intimacy of the lawyer's relationship with the
client or clients involved, the functions being performed by the
lawyer, the likelihood that actual conflict will arise and the
likely prejudice to the client from the conflict if it does
arise.  The question is often one of proximity and degree.

    For example, a lawyer may not represent multiple parties to
a negotiation whose interests are fundamentally antagonistic to
each other, but common representation is permissible where the
clients are generally aligned in interest even though there is
some difference of interest among them.

    Conflict questions may also arise in estate planning and
estate administration.  A lawyer may be called upon to prepare
wills for several family members, such as husband and wife, and
depending upon the circumstances, a conflict of interest may
arise.  In estate administration the identity of the client may
be unclear under the law of some jurisdictions.  In Florida, the
personal representative is the client rather than the estate or
the beneficiaries.  The lawyer should make clear the relationship
to the parties involved.

     A lawyer for a corporation or other organization who is
also a member of its board of directors should determine whether
the responsibilities of the two roles may conflict.  The lawyer
may be called on to advise the corporation in matters involving
actions of the directors.  Consideration should be given to the
frequency with which such situations may arise, the potential
intensity of the conflict, the effect of the lawyer's resignation
from the board and the possibility of the corporation's obtaining
legal advice from another lawyer is such situations.  If there is
material risk that the dual role will compromise the lawyer's
independence of professional judgment, the lawyer should not
serve as a director.

Conflict charged by an opposing party

    Resolving questions of conflict of interest is primarily the
responsibility of the lawyer undertaking the representation.  In
litigation, a court may raise the question when there is reason
to infer that the lawyer has neglected the responsibility.   In a
criminal case, inquiry by the court is generally required when a
lawyer represents multiple defendants.  Where the conflict is
such as clearly to call in question the fair or efficient
administration of justice, opposing counsel may properly raise
the question.  Such an objection should be viewed with caution,
however, for it can be misused as a technique of harassment.  See
scope.

Family relationships between lawyers

    Rule 4-1.7(d) applies to related lawyers who are in different
firms.  Related lawyers in the same firm are also governed by
rules 4-1.9 and 4-1.10.  The disqualification stated in rule 4-
1.7(d) is personal and is not imputed to members of firms with
whom the lawyers are associated.

RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED TRANSACTIONS

    (a) A lawyer shall not enter into a business transaction with
a client or knowingly acquire an ownership, possessory, security,
or other pecuniary interest adverse to a client, except a lien
granted by law to secure a lawyer's fee or expenses, unless:

    (1) The transaction and terms on which the lawyer acquires
the interest are fair and reasonable to the client and are fully
disclosed and transmitted in writing to the client in a manner
which can be reasonably understood by the client;

    (2) The client is given a reasonable opportunity to seek the
advice of independent counsel in the transaction; and

    (3) The client consents in writing thereto.

    (b) A lawyer shall not use information relating to
representation of a client to the disadvantage of the client
unless the client consents after consultation, except as
permitted or required by rule 4-1.6.

/* Do we "mirandize" clients about when we can do this- for
example to collect a bill? */

    (c) A lawyer shall not prepare an instrument giving the
lawyer or a person related to the lawyer as parent, child,
sibling, or spouse and substantial gift from a client, including
a testamentary gift, except where the client is related to the
donee.

    (d) Prior to the conclusion of representation of a client, a
lawyer shall not make or negotiate an agreement giving the lawyer
literary or media rights to a portrayal or account based in
substantial part on information relating to the representation.

/* A rule put into effect so that criminal lawyers who represent
notorious criminals cannot immediately after the case write a
movie script about the crime. This formerly was a common
practice. */

    (e) A lawyer shall not provide financial assistance to a
client in connection with pending or contemplated litigation,
except that:

    (1) A lawyer may advance court costs and expenses of
litigation, the repayment of which may be contingent on the
outcome of the matter, and

    (2) A lawyer representing an indigent client may pay court
costs and expenses of litigation on behalf of the client.

    (f) A lawyer shall not accept compensation for representing
a client from one other than the client unless:

    (1) The client consents after consultation;

    (2) There is no interference with the lawyer's independence
of professional judgment or with the client-lawyer relationship;
and

    (3) Information relating to representation of a client is
protected as required by rule 4-1.6.

    (g) A lawyer who represents two (2) or more clients shall
not participate in making an aggregate settlement of the claims
of or against the clients, or in a criminal case an aggregated
agreement as to guilty or nolo contendere pleas, unless each
client consents after consultation, including disclosure of the
existence and nature of all the claims or please involved and of
the participation of each person in the settlement.

/* Although this rule contemplates the possibility of the
attorney representing two criminal defendants it is now generally
accepted that an attorney cannot represent two criminal
defendants in the same matter. */

    (h) A lawyer shall not make an agreement prospectively
limiting the lawyer's liability to a client for malpractice
unless permitted by law and the client is independently
represented in making the agreement.  A lawyer shall not settle a
claim for such liability with an unrepresented client or former
client without first advising that person in writing that
independent representation is appropriate in connection
therewith.

    (i) A lawyer shall not acquire a proprietary interest in the
cause of action or subject matter of litigation the lawyer is
conducting for a client, except that the lawyer may:

    (1) Acquire a lien granted by law to secure the lawyer's fee
or expenses; and

    (2) A contract with a client for a reasonable contingent
fee.

Comment- Transactions between client and lawyer

    As a general principle, all transactions between client and
lawyer should be fair and reasonable to the client.  In such
transactions a review by independent counsel on behalf of the
client is often advisable.  Furthermore, a lawyer may not exploit
information relating to the representation to the client's
disadvantage.  For example, a lawyer who has learned that the
client is investing in specific real estate may not, without the
client's consent, seek to acquire nearby property where doing so
would adversely affect the client's plan for investment.
Paragraph (a) does not, however, apply to standard commercial
transactions between the lawyer and the client for products or
services that the client generally markets to others, for
example, banking or brokerage services, medical services,
products manufactured or distributed by the client, and utilities
services.  In such transactions the lawyer has no advantage in
dealing with the client, and the restrictions in paragraph (a)
are unnecessary and impracticable.  Likewise, paragraph (a) does
not prohibit a lawyer from acquiring or asserting a lien granted
by law to secure the lawyer's fee or expenses.

    A lawyer may accept a gift from a client, if the transaction
meets general standards of fairness.  For example a simple gift
such as a present given at a holiday or as a token of
appreciation is permitted.  If effectuation of a substantial gift
requires preparing a legal instrument such as a will or
conveyance, however, the client should have the detached advice
that another lawyer can provide.  Paragraph (c) recognizes an
exception where the client is a relative of the donee or the gift
is not substantial.

Literary rights

    An agreement by which a lawyer acquires literary or media
rights concerning the conduct of the representation creates a
conflict between the interests of the client and the personal
interests of the lawyer.  Measures suitable in the representation
of the client may detract from the publication value of an
account of the representation.  Paragraph (d) does not prohibit a
lawyer representing a client in a transaction concerning literary
property from agreeing that the lawyer's fee shall consist of a
share in ownership in the property if the arrangement conforms to
rule 4-1.5 and paragraph (i).

Person paying for lawyer's services

    Rule 4-1.8(f) requires disclosure of the fact that the
lawyer's services are being paid for by a third party.  Such an
arrangement must also conform to the requirements of rule 4-1.6
concerning confidentiality and rule 4-1.7 concerning conflict of
interest.  Where the client is a class, consent may be obtained
on behalf of the class by court supervised procedure.

Acquisition of interest in litigation

    Paragraph (i) states the traditional general rule that
lawyers are prohibited from acquiring a proprietary interest in
litigation.  This general rule, which has its basis in common law
champerty and maintenance, is subject to specific exceptions
developed in decisional law and continued in these rules, such as
the exception for reasonable contingent fees set forth in rule 4-
1.5 and the exception for certain advances of the costs of
litigation set forth in paragraph (e).

    This rule is not intended to apply to customary
qualification and limitations in legal opinions and memoranda.

RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT

    A lawyer who has formerly represented a client in a matter
shall not thereafter:

    (a) Represent another person in the same or a substantially
related matter in which that person's interests are materially
adverse to the interests of the former client unless the former
client consents after consultation; or

    (b) Use information relating to the representation to the
disadvantage of the former client except as rule 4-1.6 would
permit with respect to a client or when the information has
become generally known.

Comment

    After termination of a client-lawyer relationship, a lawyer
may not represent another client except in conformity with this
rule.  The principles in rule 4-1.7 determine whether the
interests of the present and former client are adverse.  Thus, a
lawyer could not properly seek to rescind on behalf of a new
client a contract drafted on behalf of the former client.  So
also a lawyer who has prosecuted an accused person could not
properly represent the accused in a subsequent civil action
against the government concerning the same transaction.

    The scope of a "matter" for purposes of rule 4-1.9(a) may
depend on the facts of a particular situation or transaction.
The lawyer's involvement in a matter can also be a question of
degree.  When a lawyer has been directly involved in a specific
transaction, subsequent representation of other clients with
materially adverse interests clearly is prohibited.  On the other
hand, a lawyer who recurrently handled a type of problem for a
former client is not precluded from later represent another
client in a wholly distinct problem of the type even though the
subsequent representation involves a position adverse to the
prior client.  Similar considerations can apply to the
reassignment of military lawyers between defense and prosecution
functions within the same military jurisdiction.  The underlying
question is whether the lawyer was so involved in the matter that
the subsequent representation can be justly regarded as a
changing of sides in the matter in question.

    Information acquired by the lawyer in the course of
representing a client may not subsequently be used by the lawyer
to the disadvantage of the client.  However, the fact that a
lawyer has once served a client does not preclude the lawyer from
using generally known information about that client when later
representing another client.

    Disqualification from subsequent representation is for the
protection of clients and can be waived by them.  A waiver is
effective only if there is disclosure of the circumstances,
including the lawyer's intended role in behalf of the new client.

    With regard to an opposing party's raising a question of
conflict of interest, see comment to rule 4-1.7.  With regard to
disqualification of a firm with which a lawyer is associated, see
rule 4-1.10.

RULE 4-1.10 IMPUTED DISQUALIFICATION; GENERAL RULE

    (a) While lawyers are associated in a firm, none of them
shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by rule 4-1.7,
4-1.8(c), 4-1.9, or 4-2.2.

    (b) When a lawyer becomes associated with a firm, the firm
may not knowingly represent a person in the same or a
substantially related matter in which the lawyer, or a firm with
which the lawyer was associated, had previously represented a
client whose interests are materially adverse to that person and
about whom the lawyer had acquired information protected by rule
4-1.6 and 4-1.9(b) that is material to the matter.

    (c) When a lawyer has terminated an association with a firm,
the firms is not prohibited from thereafter representing a person
with interests materially adverse to those of a client
represented by the formerly associated lawyer unless:

    (1) The matter is the same or substantially related to that
in which the formerly associated lawyer represented the client;
and

    (2) Any lawyer remaining in the firm has information
protected by rules 4-1.6 and 4-1.9(b) that is material to the
matter.

    (d) A disqualification prescribed by this rule may be waived
by the affected client under the conditions stated in rule 4-1.7.

Comment- Definition of "firm"

    For purposes of the Rules of Professional Conduct, the term
"firm" includes lawyers in a private firm and lawyers employed in
the legal department of a corporation or other organization or in
a legal services organization.  Whether two (2) or more lawyers
constitute a firm within this definition can depend on the
specific facts.   For example, two (2) practitioners who share
office space and occasionally consult or assist each other
ordinarily would not be regarded as constituting a firm.
However, if they present themselves to the public in a way
suggesting that they are a firm or conduct themselves as a firm,
they should be regarded as a firm for the purposes of the rules.
The terms of any formal agreement between associated lawyers are
relevant in determining whether they are a firm, as is the fact
that they have mutual access to confidential information
concerning the clients they serve.  Furthermore, it is relevant
in doubtful cases to consider the underlying purposes of the rule
that is involved.  A group of lawyers could be regarded as a firm
for purposes of the rule that the same lawyer should not
represent opposing parties in litigation, while it might not be
so regarded for purposes of the rule that information acquired by
one lawyer is attributed to another.

    With respect to the law department of an organization, there
is ordinarily no question that the members of the department
constitute a firm within the meaning of the Rules of Professional
Conduct.  However, there can be uncertainty as to the identity of
the client.  For example, it may not be clear whether the law
department of a corporation represents a subsidiary or an
affiliated corporation, as well as the corporation by which the
members of the department are directly employed.  A similar
question can arise concerning an unincorporated association and
its local affiliates.

    Similar questions can also arise with respect to lawyers in
legal aid.  Lawyers employed in the same unit of a legal service
organization constitute a firm, but not  necessarily those
employed in separate units.  As in the case of independent
practitioners, whether the lawyers should be treated as
associated with each other can depend of the particular rule that
is involved and on the specific facts of the situation.

    Where a lawyer has joined a private firm after having
represented the government, the situation is governed by rule
4-1.11(a) and (b); where a lawyer represents the government by
rule 4-1.11(c)(1).  The individual lawyer involved is bound by
the rules generally, including rule 4-1.6, 4-1.7, and 4-19.

    Different  provisions are thus made for movement of a lawyer
from one private firm to another and for movement of a lawyer
between a private firm and the government.  The government is
entitled to protection of its client confidences and, therefore,
to the protections provided in rules 4-1.6, 4-1.9, and 4-1.11.
However, if the more extensive disqualification in rule 4-1.10
were applied to former government lawyers, the potential effect
on the government would be unduly burdensome.  The government
deals with all private citizens and organizations and thus deals
with all private citizens and organizations and thus has a much
wider circle of adverse legal interests than does any private law
firm.  In these circumstances, the government's recruitment of
lawyers would be seriously impaired if rule 4-1.10 were applied
to the government.  On balance, therefore, the government  is
better served in the long run by the protections stated in
4.1.11.

Principles of imputed disqualification

    The rule of imputed disqualification stated in paragraph (a)
gives effect to the principle of loyalty to the client as it
applies to lawyers who practice in a law firm.  Such situations
can be considered from the premises that a firm of lawyers is
essentially one lawyer of purposes of the rules governing loyalty
to the client or from the premise that each lawyer is vicariously
bound by the obligation of loyalty owed by each lawyer with whom
the lawyer is associated.  Paragraph (a) operates only among the
lawyers currently associated in a firm.  When a lawyer moves form
one firm to another the situation is governed by (b) and (c).

Lawyers moving between firms

    When lawyers have been associated in a firms but then end
their association, however, the problem is more complicated.  The
fiction that the law firm is the same as a single lawyer is not
longer wholly realistic.  There are several competing
considerations.  First, the client previously represented must be
reasonable assured that the principle of loyalty to the client is
not compromised.  Second, the rule of disqualification should not
be so broadly cast as to preclude other persons from having
reasonable choice of legal counsel.  Third, the rule of
disqualification should not unreasonably hamper lawyers from
forming new associations and taking on new clients after having
left a previous association.  In this connection, it should be
recognized that today many lawyers practice in firms, that many
to some degree limit their practice to one field or another, and
that many move from one association of another several times in
their careers.  If the concept of imputed disqualification were
defined with unqualified rigor, the result would be radical
curtailment of the opportunity of lawyers to move from one
practice setting to another and of the opportunity of clients to
change counsel.

    Reconciliation of these competing principles in the past has
been attempted under two (2) rubrics.  One approach has been to
seek per se rules of disqualification.  For example, it has been
held that a partner in a law firm is conclusively presumed to
have access to all confidences concerning all clients of the
firm.  Under this analysis, if a lawyer has been a partner in one
law firm and then becomes a partner in another law firm, there is
a presumption that all confidences known by a partner in the
first firm are known to all partners in the second firm.  This
presumption might properly be applied in some circumstances,
especially where the client has been extensively represented, but
may be unrealistic where the client was represented only for
limited purposes.   Furthermore, such a rigid rule exaggerates
the difference between a partner and an associate in modern law
firms.

    The other rubric formerly used for dealing with vicarious
disqualification is the appearance of impropriety and was
proscribed in former Canon 9 of the Code of Professional
Responsibility.  This rubic has a two-fold problem.  First, the
appearance of impropriety can be taken to include any new
client-lawyer relationship that might make a former client feel
anxious.  If that meaning were adopted, disqualification would
become little more than a question of subjective judgment by the
former client.  Second, since "impropriety" is undefined, the
term "appearance of impropriety" is undefined, the term
"appearance of impropriety" is question-begging.  It therefore
has to be recognized that the problem of imputed disqualification
cannot be properly resolved either by simple analogy to a lawyer
practicing alone or by the very general concept of appearance of
impropriety.

    A rule based on a functional analysis is more appropriate
for determining the question of vicarious disqualification.  Two
(2) functions are involved:  preserving confidentiality and
avoiding positions adverse to a client.

Confidentiality

    Preserving confidentiality is a question of access to
information.  Access to information, in turn, is essentially a
question of fact in particular circumstances, aided by
inferences, deductions or working presumptions that reasonably
may be made about the way in which lawyers work together.  A
lawyer may have general access to files of all clients of a law
firm and may regularly participate in discussions of their
affairs; it should be inferred that such a lawyer in fact is
privy to all information about all the firm's clients.  In
contrast, another lawyer may have access to the files of only a
limited number of clients and participate in discussion of the
affairs of no other clients; in the absence of information to the
contrary, it should be inferred that such a lawyer in fact is
privy to information about the clients actually served but not
those of other clients.

    Application of paragraphs (b) and (c) depends on a
situation's particular facts.  In any such inquiry, the burden of
proof should rest upon the firm whose disqualification is sought.

    Paragraphs (b) and (c) operate to disqualify the firm only
when the lawyer involved has actual knowledge of information
protected by rules 4-1.6 and 4-1.9(b).  Thus, if a lawyer while
with one firm acquired no knowledge or information relating to a
particular client of the firm and that lawyer later joined
another firm, neither the lawyer individually nor the second firm
is disqualified from representing another client in the same or a
related matter even though the interests of the two (2) clients
conflict.

    Independent of the question of disqualification of a firm, a
lawyer changing professional association has a continuing duty to
preserve confidentiality of information about a client formerly
represented.  See rules 4-1.6 and 4-1.9.

Adverse positions

    The second aspect of loyalty to client is the lawyer's
obligation to decline subsequent representations involving
positions adverse to a former client arising in substantially
related matters.  This obligation requires abstention from
adverse representation by the individual lawyer involved, but
does not properly entail abstention of other lawyers through
imputed disqualification.  Hence, this aspect of the problem is
governed by rule 4-1.9(a).  Thus, if a lawyer left one firm for
another, the new affiliation would not preclude the firms
involved from continuing to represent clients with adverse
interests in the same or related matters so long as the
conditions of rule 4-1.1(b) and (c) concerning confidentiality
have been met.

RULE 4-1.11 SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT

    (a) A lawyer shall not represent a private client in
connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee,
unless the appropriate government agency consents after
consultation.  No lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue representation in
such a matter unless:

    (1) The disqualified lawyer is screened from any
participation in the matter and is directly apportioned no part
of the fee therefrom; and

/* The "Chinese Wall" rule. In this case a "Great Wall of China
is created between the firm and the attorney. */

    (2) Written notice is promptly give to the appropriate
government agency to enable it to ascertain compliance with the
provisions of this rule.

/* In many cases separate ethics rules or statutes provide for a
more strict rule. */

    (b) A lawyer having information that the lawyer knows is
confidential government information about a person acquired when
the lawyer was a public officer or employee may not represent a
private client whose interests are adverse to that person in a
matter in which the information could be used to the material
disadvantage of that person.  A firm with which that lawyer is
associated may undertake or continue representation in the matter
only if the disqualified lawyer is screened from any
participation in the matter and is apportioned no part of the fee
therefrom.

    (c) A lawyer serving as a public officer or employee shall
not:

    (1) Participate in a matter in which the lawyer participated
personally and substantially while in private practice or
nongovernmental employment, unless under applicable law no one
is, or by lawful delegation may be authorized to act in the
lawyer's stead in the matter, or

    (2) Negotiate for private employment with any person who is
involved as a party or as attorney for a party in a matter in
which the lawyer is participating personally and substantially.

    (d) As used in this rule, the term "matter" includes:

    (1) Any judicial or other proceeding, application, request
for a ruling or other determination, contract, claim,
controversy, investigation, charge, accusation, arrest, or other
particular matter involving a specific party or parties; and

    (2) Any other matter covered by the conflict of interest
rules of the appropriate government agency.

    (e) As used in this rule, the term "confidential government
information" means information which has been obtained under
governmental authority and which, at the time this rule is
applied, the government is prohibited by law from disclosing to
the public or has a legal privilege not to disclose and which is
not otherwise available to the public.

Comment

    This rule prevents a lawyer from exploiting public office for
the advantage of a private client.  It is a counterpart of rule
4-1.10(b), which applies to lawyers moving from one firm to
another.

    A lawyer representing a government agency, whether employed
or specially retained by the government, is subject to the rules
of professional conduct, including the prohibition against
representing adverse interests state in rule 4-1.7 and the
protections afforded former clients in rule 4-1.9.  In addition,
such a lawyer is subject to rule 4-1.11 and to statutes and
government regulations regarding conflict of interest.  Such
statutes and regulations may circumscribe the extent to which the
government agency may give consent under this rule.

    Where the successive clients are a public agency and a
private client, the risk exists that power of discretion vested
in public authority might be used for the special benefit of a
private client.  A lawyer should not be in a position where
benefit to a private client might affect performance of the
lawyer's professional functions on behalf of public authority.
Also, unfair advantage could accrue to the private client by
reason of access to confidential government information about the
client's adversary obtainable only through the lawyer's
government service.  However, the rules governing lawyers
presently or formerly employed by a government agency should not
be so restrictive as to inhibit transfer to employment to and
from the government.  The government has a legitimate need to
attract qualified lawyers as well as to maintain high ethical
standards.  The provisions for screening and waiver are necessary
to prevent the disqualification rule from imposing too severe a
deterrent against entering public service.

     When the client is an agency of one government, the agency
should be treated as private client for purposes of this rule if
the lawyer thereafter represents an agency of another government,
as when a lawyer presents a city and subsequently is employed by
a federal agency.

    Paragraphs (a)(1) and (b) do not prohibit a lawyer from
receiving a salary or partnership share established by prior
independent agreement.  They prohibit directly relating the
attorney's compensation to the fee in the matter in which the
lawyer is disqualified.

    Paragraph (a)(2) does not require that a lawyer give notice
to the government agency at a time when premature disclosure
would injure the client; a requirement for premature disclosure
might preclude engagement of the lawyer.  Such notice is,
however, required to be given as soon as practicable in order
that the government agency or affected person will have a
reasonable opportunity to ascertain that the lawyer is complying
with rule 4-1.11 and to take appropriate action if they believe
the lawyer is not complying.

    Paragraph (b) operates only when the lawyer in question has
knowledge of the information, which means actual knowledge; it
does not operate with respect to information that merely could be
imputed to the lawyer.

    Paragraphs (a) and (c) do not prohibit a lawyer from jointly
representing a private party and a government agency when doing
so is permitted by rule 4-1.7 and is not otherwise prohibited by
law.

    Paragraph (c) does not disqualify other lawyers in the
agency with which the lawyer in question has become associated.

RULE 4-1.12 FORMER JUDGE OR ARBITRATOR

    (a) Except as stated in paragraph (d), a lawyer shall not
represent anyone in connection with a matter in which the lawyer
participated personally and substantially as a judge or other
adjudicative officer, arbitrator, or law clerk to such a person,
unless all parties to the proceeding consent after disclosure.

    (b) A lawyer shall not negotiate for employment with any
person who is involved as a party or as attorney for a party who
is involved as a party or as attorney for a party in a matter in
which the lawyer is participating personally and substantially as
a judge or other adjudicative officer or arbitrator.  A lawyer
serving as a law clerk to a judge, other adjudicative officer, or
arbitrator may negotiate for employment with a party or attorney
involved in a matter in which the clerk is participating
personally and substantially, but only after the lawyer has
notified the judge, other adjudicative officer, or arbitrator.

    (c) If a lawyer is disqualified by paragraph (a), no lawyer
in a firm with which that lawyer is associated may knowingly
undertake or continue representation in the matter unless:

    (1) The disqualified lawyer is screened from any
participation in the matter and is directly apportioned no part
of the fee therefrom; and

    (2) Written notice is promptly given to the appropriate
tribunal to enable it to ascertain compliance with the provisions
of this rule.

    (d) An arbitrator selected as a partisan of a party in a
multimember arbitration panel is not prohibited from subsequently
representing that party.

Comment

    This rule generally parallels rule 4-1.11.  The term
"personally and substantially" signifies that a judge who was a
member of a multimember court, and thereafter left judicial
office to practice law, is not prohibited from representing a
client in a matter pending in the court, but in which the former
judge did not participate.  So also the fact that a former judge
exercised administrative responsibility that did not affect the
merits.  Compare the comment to rule 4-1.11.  The term
"adjudicative officer" includes such officials as judges pro
tempore, referees, special masters, hearing officers, and other
parajudicial officers and also lawyers who serve as part-time
judges.  Compliance Canons A(2), B(2), and C of Florida's Code of
Judicial Conduct provide that a part-time judge, judge pro
tempore, or retired judge recalled to active service may not "act
as a lawyer in any proceeding in which he served as a judge or in
any other proceeding related thereto."  Although phrased
differently from this rule, those rules correspond in meeting.

RULE 4-1.13 ORGANIZATION AS CLIENT

    (a) A lawyer employed or retained by an organization
represents the organization acting through its duly authorized
constituents.

    (b) If a lawyer for an organization knows that an officer,
employee, or other person associated with the organization is
engaged in action, intends to act, or refuses to act in a matter
related to the representation that is a violation of a legal
obligation to the organization or a violation of law which
reasonably might be imputed to the organization and is likely to
result in substantial injury to the organization, the lawyer
shall proceed as is reasonably necessary in the best interest of
the organization.  In determining how to proceed, the lawyer
shall give due consideration to the seriousness of the violation
and its consequences, the scope and nature of the lawyer's
representation, the responsibility in the organization and the
apparent motivation of the person involved, the policies of the
organization concerning such matters, and any other relevant
considerations.  Any measures taken shall be designed to minimize
disruption of the organization and the risk of revealing
information relating to the representation to persons outside the
organization.  Such measures may include among others:

    (1) Asking reconsideration of the matter;

    (2) Advising that a separate legal opinion on the matter be
sought for presentation to appropriate authority in the
organization; and

    (3) Referring the matter to higher authority in the
organization, including, if warranted by the seriousness of the
matter, referral to the highest authority that can act in behalf
of the organization as determined by applicable law.

    (c) If, despite the lawyer's efforts in accordance with
paragraph (b), the highest authority that can act on behalf of
the organization insists upon action, or a refusal to act, that
is clearly a violation of law and is likely to result in
substantial injury to the organization, the lawyer may resign in
accordance with rule 4-1.16.

    (d) In dealing with an organization's directors, officers,
employees, members, shareholders, or other constituents, a lawyer
shall explain the identity of the client when it is apparent that
the organization's interests are adverse to those of the
constituents with whom the lawyer is dealing.

    (e) A lawyer representing an organization may also represent
any of its directors, officers, employees, members, shareholders,
or other constituents, subject to provisions of rule 4-1.17.  If
the organization's consent to the dual representation is required
by rule 4-1.17, the consent shall be given by an appropriate
official of the organization other than the individual who is to
be represented, or by the shareholders.

Comment

The entity as the client

    An organizational client is a legal entity, but it cannot act
except through its officers, directors, employees, shareholders,
and other constituents.  Officers, directors, employees, and
shareholders are the constituents of the corporate organizational
client.  The duties defined in this comment apply equally to
unincorporated associations.  "Other constituents" as used in
this comment means the positions equivalent to officers,
directors, employees, and shareholders held by persons acting for
organizational clients that are not corporations.

    When one of the constituents of an organizational client
communicates with the organization's lawyer in that person's
organizational capacity, the communication is protected by rule
4-1.6.  Thus, by way of example, if an organizational client
requests its lawyer to investigate allegations of wrongdoing,
interviews made in the course of that investigation between the
lawyer and the client's employees or other constituents are
covered by rule 4-1.6.  This does not mean, however, that
constituents of an organizational client ware the clients of the
lawyer.  The lawyer may not disclose to such constituents
information relating to the representation except for disclosures
explicitly or impliedly authorized by the organizational client
in order to carry out the representation or as otherwise
permitted by rule 4-1.6.

    When constituents of the organization make decisions for it,
the decisions ordinarily must be accepted by the lawyer even if
their utility or prudence is doubtful.  Decisions concerning
policy and operations, including ones entailing serious risk, are
not as such in the lawyer's province.  However, different
considerations arise when the lawyer knows that the organization
may be substantially injured by action of a constituent that is
in violation of law.  In such a circumstance, it may be
reasonably necessary for the lawyer to ask the constituent to
reconsider the matter.  If that fails, or if the matter is of
sufficient seriousness and importance to the organization, it may
be reasonably necessary for the lawyer to take steps to have the
matter reviewed by a higher authority in the organization.  Clear
justification should exist for seeking review over the head of
the constituent normally responsible for it.  The stated policy
of the organization may define circumstances and prescribe
channels for such review, and a lawyer should encourage the
formulation of such a policy.  Even in the absence of
organization policy, however, the lawyer may have an obligation
to refer a matter to higher authority, depending on the
seriousness of the matter and whether the constituent in question
has apparent motives to act at variance with the organization's
interest.  Review by the chief executive officer or by the
importance commensurate with their authority.  At some point it
may be useful or essential to obtain an independent legal
opinion.

    In an extreme case, it may be reasonably necessary for the
lawyer to refer the matter to the organization's highest
authority.  Ordinarily, that is the board of directors or similar
governing body.  However, applicable law may prescribe that under
certain conditions highest authority reposes elsewhere; for
example, in the independent directors of a corporation.

Relation to other rules

    The authority and responsibility provided in paragraph (b)
are concurrent with the authority and responsibility provided in
other rules.  In particular, this rule does not limit or expand
the lawyer's responsibility under rule 4-1.6, 4-1.8, 4-1.16, 4-
3.3, or 4-4.1.  If the lawyer's services are being used by an
organization to further a crime or fraud by the organization,
rule 4-1.2(d) can be applicable.

Government agency

    The duty defined in this rule applies to governmental
organizations.  However, when the client is a governmental
organization, a different balance may be appropriate between
maintaining confidentiality and assuring that the wrongful
official act is prevented or rectified, for public business is
involved.  In addition, duties of lawyers employed by the
government or lawyers in military service may be defined by
statutes and regulation.  Therefore, defining precisely the
identity of the client and prescribing the resulting obligations
of such lawyers may be more difficult in the government context.
Although in some circumstances the client may be a specific
agency, it is generally the government as a whole.  For example,
if the action or failure to act involves the head of a bureau,
either the department of which the bureau is a part or the
government as a whole may be the client for purposes of this
rule.  Moreover, in a matter involving the conduct of government
officials, a government lawyer may have authority to question
such conduct more extensively than that of a lawyer for a private
organization in similar circumstances.  This rule does not limit
that authority.  See note on scope.

Clarifying the lawyer's role

    There are times when the organization's interest may be or
become adverse to those of one or more of its constituents.  In
such circumstances the lawyer should advise any constituent whose
interest the lawyer finds adverse to that of the organization of
the conflict or potential conflict of interest that the lawyer
cannot represent such constituent and that such person may wish
to obtain independent representation.  Care must be taken to
assure that the constituent understands that, when there is such
adversity of interest, the lawyer for the organization cannot
provide legal representation for that constituent and that
discussions between the lawyer for the organization and the
constituent may not be privileged.

    Whether such a warning should be given by the lawyer for the
organization to any constituent may turn on the facts of each
case.

Dual representation

    Paragraph (e) recognizes that a lawyer for an organization
may also represent a principal officer or major shareholder.

Derivative actions

    Under generally prevailing law, the shareholders or members
of a corporation may bring suit to compel the directors to
perform their legal obligations in the supervision of the
organization.  Members of unincorporated associations have
essentially the same right.  Such an action may be brought
nominally by the organization, but usually is, in fact, a legal
controversy over management of the organization.

    The question can arise whether counsel for the organization
may defend such an action.  The proposition that the organization
is the lawyer's client does not alone resolve the issue.  Most
derivative actions are a normal incident of an organization's
affairs, to be defended by the organization's lawyer like any
other suit.  However, if the claim involves serious charges of
wrongdoing by those in control of the organization, a conflict
may arise between the lawyer's duty to the organization and the
lawyer's relationship with the board.  In those circumstances,
rule 4-1.7 governs who should represent the directors and the
organization.

RULE 4-1.14 CLIENT UNDER A DISABILITY

    (a) When a client's ability to make adequately considered
decisions in connection with the representation is impaired,
whether because of minority, mental disability, or for some other
reason, the lawyer shall, as far as reasonably possible, maintain
a normal client-lawyer relationship with the client.

    (b) A lawyer may seek the appointment of a guardian or take
other protective action with respect to a client only when the
lawyer reasonably believes that the client cannot adequately act
in the client's own interest.

Comment

    The normal client-lawyer relationship is based on the
assumption that the client, when properly advised and assisted,
is capable of making decisions about important matters.  When the
client is a minor or suffers from a mental disorder or
disability, however, maintaining the ordinary client-lawyer
relationship may not be possible in all respects.  In particular,
an incapacitated person may have not power to make legally
binding decisions.  Nevertheless, a client lacking legal
competence often has the ability to understand, deliberate upon,
and reach conclusions about matters affecting the client's own
well-being.  Furthermore, to an increasing extent the law
recognizes intermediate degrees of competence.  For example,
children as young as five (5) or six (6) years of age, and
certainly those of ten (10) or twelve (12), are regarded as
having opinions that are entitled to weight in legal proceedings
concerning their custody.  So also, it is recognized that some
persons of advanced age can be quite capable of handling routine
financial matters while needing special legal protection
concerning major transactions.

    The fact that a client suffers a disability does not
diminish the lawyer's obligation to treat the client with
attention and respect.  If the person has no guardian or legal
representative, the lawyer often must act as de facto guardian.
Even if the person does have a legal representative, the lawyer
should as far as possible accord the represented person the
status of client, particularly in maintaining communication.

    If a legal representative has already been appointed for the
client, the lawyer should ordinarily look to the representative
for decisions on behalf of the client.  If a legal representative
has not been appointed, the lawyer should see to such an
appointment where it would serve the client's best interests.
Thus, if a disabled client has substantial property that should
be sold for the client's benefit, effective completion of the
transaction ordinarily requires appointment of a legal
representative.  In many circumstances, however, appointment of a
legal representative may be expensive or traumatic for the
client.  Evaluation of these considerations is a matter of
professional judgment on the lawyer's part.

    If the lawyer represents the guardian as distinct from the
ward and is aware that the guardian is acting adversely to the
ward's interest, the lawyer may have an obligation to prevent or
rectify the guardian's misconduct.  See rule 4-1.2(d).

Disclosure of client's condition

    Rules of procedure in litigation generally provide that
minors or persons suffering mental disability shall be
represented by a guardian or next friend if they do not have a
general guardian.  However, disclosure of the client's disability
can adversely affect the client's interests.  The lawyer may seek
guidance from an appropriate diagnostician.