Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/profcon3.asc

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/* Part 3 of 6 of the Model rules of Professional Conduct. */

RULE 4-1.15 SAFEKEEPING PROPERTY

    (a) A lawyer shall hold in trust, separate from the lawyer's
own property, funds and property of clients or third persons that
are in a lawyer's possession in connection with a representation.
All funds, including advances for costs and expenses, shall be
kept in a separate account maintained in the state where the
lawyer's office is situated or elsewhere with the consent of the
client or third person, provided that funds may be separately
held and maintained other than in a bank account if the lawyer
receives written permission from the client to do so and provided
that such written permission is received prior to maintaining the
funds other than in a separate bank account.  In no event may the
lawyer commingle the client's funds with those of his or hers or
those of his or her law firm.  Other property shall be identified
as such and appropriately safeguarded.  Complete records of such
account funds and other property, including client funds not
maintained in a separate bank account, shall be kept by the
lawyer.

    (b) Upon receiving funds or other property in which a client
or third person has an interest, a lawyer shall promptly notify
the client or third person.  Except as stated in this rule or
otherwise permitted by law or by agreement with the client, a
lawyer shall promptly deliver to the client or third person any
funds or other property that the client or third person is
entitled to receive and, upon request by the client or third
person, shall promptly render a full accounting regarding such
property.

    (c) When in the course of representation a lawyer is in
possession of property in which both the lawyer and another
person claim interests, the property shall be treated by the
lawyer as trust property, but the portion belonging to the lawyer
or law firm shall be withdrawn within a reasonable time after it
becomes due unless the right of the lawyer or law firm to receive
it is disputed, in which event the portion in dispute shall be
kept separate by the lawyer until the dispute is resolved.

Comment

    A lawyer should hold property of others with the care
required of a professional fiduciary.  Securities should be kept
in a safe deposit box, except when some other form of safekeeping
is warranted by special circumstances.  All property which is the
property of clients or third persons should be kept separate from
the lawyer's business and personal property and, if money, in one
or more trust accounts, unless requested otherwise in writing by
the client.  Separate trust accounts may be warranted when
administering estate money or acting in similar fiduciary
capacities.

    Lawyers often receive funds from third parties from which

the lawyer's fee will be paid.  If there is risk that the client
may divert the funds without paying the fee, the lawyer is not
required to remit the portion from which the fee is to be paid.
However, a lawyer may not hold funds to coerce a client into
accepting the lawyer's contention.  The disputed portion of the
funds should be kept in trust and the lawyer should suggest means
for prompt resolution of the dispute, such as arbitration.  The
undisputed portion of the funds shall be promptly distributed.

    Third parties, such as a client's creditors, may have just
claims against funds or other property in a lawyer's custody.  A
lawyer may have a duty under applicable law to protect such third
party claims against wrongful interference by the client and,
accordingly, may refuse to surrender the property to the client.
However, a lawyer should not unilaterally assume to arbitrate a
dispute between the client and the third party and where
appropriate the lawyer should consider the possibility of
depositing the property or funds in dispute into the registry of
the applicable court so that the matter may be adjudicated.

    The obligations of a lawyer under this rule are independent
of those arising from activity other than rendering legal
services.  For example, a lawyer who serves as an escrow agent is
governed by the applicable law relating to fiduciaries even
though the lawyer does not render legal services in the
transaction.

    Money or other property entrusted to a lawyer for a specific
purpose, including advances for costs and expenses, is held in
trust and must be applied only to that purpose.  Money and other
property of clients coming into the hands of a lawyer are not
subject to counterclaim or setoff for attorney's fees, and a
refusal to account for and deliver over such property upon demand
shall be a conversion.  This is not to preclude the retention of
money or other property upon which a lawyer has a valid lien for
services or to preclude the payment of agreed fees from the
proceeds of transactions or collections.

RULE 4-1.16 DECLINING OR TERMINATING REPRESENTATION

    (a) Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced, shall
withdraw from the representation of a client if:

    (1) The representation will result in violation of the rules
of professional conduct or law;

    (2) The lawyer's physical or mental condition materially
impairs the lawyer's ability to represent the client; or

    (3) The lawyer is discharged.

    (b) Except as stated in paragraph (c), a lawyer may withdraw
from representing a client if withdrawal can be accomplished
without material adverse effect on the interests of the client,
or if:

    (1) The client persists in a course of action involving the
lawyer's services that the lawyer reasonably believes is criminal
or fraudulent;

    (2) The client has used the lawyer's services to perpetrate
a crime or fraud;

    (3) A client insists upon pursuing an objective that the
lawyer considers repugnant or imprudent;

    (4) The client fails substantially to fulfill an obligation
to the lawyer regarding the lawyer's services and has been given
reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;

/* In English, this is withdrawal for failure to pay fees. */

    (5) The representation will result in an unreasonable
financial burden on the lawyer or has been rendered unreasonably
difficult by the client; or

    (6) Other good cause for withdrawal exists.

    (c) When ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding good cause for
terminating the representation.

/* This section has been rightfylly condemmed by many. If an
attorney wants to withdraw, how is the client served by the
continuing forced representation of counsel. */

    (d) Upon termination of representation, a lawyer shall take
steps to the extent reasonably practicable to protect a client's
interest, such as giving reasonable notice to the client,
allowing time for employment of other counsel, surrendering
papers and property to which the client is entitled and refunding
any advance payment of fee that has not been earned.  The lawyer
may retain papers and other property relating to or belonging to
the client to the extent permitted by law.

Comment

    A lawyer should not accept representation in a matter unless
it can be performed competently, promptly, without improper
conflict of interest and to completion.

Mandatory withdrawal

    A lawyer ordinarily must decline or withdraw from
representation if the client demands that the lawyer engage in
conduct that is illegal or violates the Rules of Professional
Conduct or law.  The lawyer is no obliged to decline or withdraw
simply because the client suggests such a course of conduct; a
client may make such a suggestion in the hope that a lawyer will
not be constrained by a professional obligation.

    When a lawyer has been appointed to represent a client,
withdrawal ordinarily requires approval of the appointing
authority.  See also rule 4-6.2.  Difficulty may be encountered
if withdrawal is based on the client's demand that the lawyer
engage in unprofessional conduct.  The court may wish an
explanation for the withdrawal, while the lawyer may be bound to
keep confidential the facts that would constitute such an
explanation.  The lawyer's statement that professional
considerations require termination of the representation
ordinarily should be accepted as sufficient.

Discharge

    A client has a right to discharge a lawyer at any time, with
or without cause, subject to liability for payment for the
lawyer's services.  Where future dispute about the withdrawal may
be anticipated, it may be advisable to prepare a written
statement reciting the circumstances.

    Whether a client can discharge appointed counsel may depend
on applicable law.  A client seeking to do so should be given a
full explanation of the consequences.  These consequences may
include a decision by the appointing authority that appointment
of successor counsel is unjustified, thus requiring the client to
represent himself.

    If the client is mentally incompetent, the client may lack
the legal capacity to discharge the lawyer, and in any event the
discharge may be seriously adverse to the client's interests.
The lawyer should make special effort to help the client consider
the consequences and, in an extreme case, may initiate
proceedings for a conservatorship or similar protection of the
client.  See rule 4-1.14.

Optional withdrawal

    A lawyer may withdraw from representation in some
circumstances.  The lawyer has the option to withdraw if it can
be accomplished without material adverse effect on the client's
interests.  Withdrawal is also justified if the client persists
in a course of action that the lawyer reasonably believes is
criminal or fraudulent, for a lawyer is not required to be
associated with such conduct even if the lawyer does not further
it.  Withdrawal is also permitted if the lawyer's services were
misused in the past even if that would materially prejudice the
client.  The lawyer also may withdraw where the client insists on
a repugnant or imprudent objective.

    A lawyer may withdraw if the client refuses to abide by the
terms of an agreement relating to the representation, such as an
agreement concerning fees or court costs or an agreement limiting
the objectives of the representation.

Assisting the client upon withdrawal

    Even if the lawyer has been unfairly discharged by the
client, a lawyer must take all reasonable steps to mitigate the
consequences to the client.  The lawyer may retain papers and
other property as security for a fee only to the extent permitted
by law.

/* In some states attorney's may retain papers until their fees
are paid. */

    Whether or not a lawyer for an organization may under
certain unusual circumstances have a legal obligation to the
organization after withdrawing or being discharged by the
organization's highest authority is beyond the scope of these
rules.

Refunding advance payment of unearned fee

    Upon termination of representation, a lawyer should refund to
the client any advance payment of a fee that has no been earned.
This does not preclude a lawyer from retaining any reasonable
nonrefundable fee which the client agreed would be deemed earned
when the lawyer commenced the client's representation.  See also
rule 4-1.5.

4-2.  COUNSELOR

RULE 4-2.1  ADVISER


    In representing a client, a lawyer shall exercise independent
professional judgment render candid advice.  In rendering advice,
a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors that may be
relevant to the client's situation.

Comment

Scope of advice

    A client is entitled to straightforward advice expressing the
lawyer's honest assessment.  Legal advice often involves
unpleasant facts and alternatives that a client may be
disinclined to confront.  In presenting advice, a lawyer
endeavors to sustain the client's morale and may put advice in as
acceptable a form as honesty permits.  However, a lawyer should
not be deterred from giving candid advice by the prospect that
the advice will be unpalatable to the client.

    Advice couched in narrowly legal terms may be of little
value to a client, especially where practical considerations,
such as cost or effects on other people, are predominant.  Purely
technical legal advice, therefore, can sometimes be inadequate.
It is proper for a lawyer to refer to relevant moral and ethical
considerations in giving advice.  Although a lawyer is not a
moral advisor as such, moral and ethical considerations impinge
upon most legal questions and may decisively influence how the
law will be applied.

    A client may expressly or impliedly ask the lawyer for
purely technical advice.  When such a request is made by a client
experienced in legal matters, the lawyer may accept it at face
value.  When such a request is made by a client inexperienced in
legal matters, however, the lawyer's responsibility as adviser
may include indicating that more may be involved than strictly
legal considerations.

    Matters that go beyond strictly legal questions may also be
in the domain of another profession.  Family matters can involve
problems within the professional competence of psychiatry,
clinical psychology, or social work business matters can involve
problems within the competence of the accounting profession or of
financial specialists.  Where consultation with a professional in
another field is itself something a competent lawyer would
recommend, the lawyer should make such a recommendation.  At the
same time, a lawyer's advice at its best often consists of
recommending a course of action in the face of conflicting
recommendations of experts.

Offering advice

    In general, a lawyer is not expected to give advice until
asked by the client.  However, when a lawyer knows that a client
proposes a course of action that is likely to result in
substantial adverse legal consequences to the client, duty to the
client under rule 4-1.4 may require that the lawyer act if the
client's course of action is related to the representation.  A
lawyer ordinarily has no duty to initiate investigation of a
client's affairs or to give advice that the client has indicated
is unwanted, but a lawyer may initiate advice to a client when
doing so appears to be in the client's interest.

RULE 4-2.2 INTERMEDIARY

    (a) A lawyer may act as intermediary between clients if:

    (1) The lawyer consults with each client concerning the
implications of the common representation, including the
advantages and risks involved, and the effect on the
attorney-client privileges and obtains each client's consent to
the common representation;

    (2) The lawyer reasonably believes that the matter can be
resolved on terms compatible with the clients' best interests,
that each client will be able to make adequately informed
decisions in the matter, and that there is little risk of
material prejudice to the interests of any of the clients if the
contemplated resolution is unsuccessful; and

    (3) The lawyer reasonably believes that the common
representation can be undertaken impartially and without improper
effect on other responsibilities the lawyer has to any of the
clients.

    (b) While acting as intermediary, the lawyer shall consult
with each client concerning the decisions to be made and the
considerations relevant in making them, so that each client can
make adequately informed decisions.

    (c) A lawyer shall withdraw as intermediary if any of the
clients so requests or if any of the conditions stated in
paragraph (a) is no longer satisfied.  Upon withdrawal, the
lawyer shall not continue to represent any of the clients in the
matter that was the subject of the intermediation.

/* One of the major changes is the new role as intra-client
mediator. */

Comment

    A lawyer acts as intermediary under this rule when the lawyer
represents two (2) or more parties with potentially conflicting
interests.  A key factor in defining the relationship is whether
the parties share responsibility for the lawyer's fee, but the
common representation may be inferred from other circumstances.
Because confusion can arise as to the lawyer's role where each
party is not separately represented, it is important that the
lawyer make clear the relationship.

    The rule does not apply to a lawyer acting as arbitrator or
mediator between or among parties who are not clients of the
lawyer, even where the lawyer has been appointed with the
concurrence of the parties.  In performing such a role the lawyer
may be subject to applicable codes of ethics, such as the Code of
Ethics for Arbitration in Commercial Disputes prepared by a joint
committee of the American Bar Association and the American
Arbitration Association.

    A lawyer acts as intermediary in seeking to establish or
adjust a relationship between clients on an amicable and mutually
advantageous basis; for example, in helping to organize a
business in which two (2) or more clients are entrepreneurs,
working out the financial reorganization of an enterprise in
which two (2) or more clients have an interest, arranging a
property distribution in settlement of an estate, or mediating a
dispute between clients.  The lawyer seeks to resolve potentially
conflicting interests by developing the parties' mutual
interests.  The alternative can be that each party may have to
obtain separate representation, with the possibility in some
situations of incurring additional cost, complication, or even
litigation.  Given these and other relevant factors, all the
clients may prefer that the lawyer act as intermediary.

    In considering whether to act as intermediary between
clients, a lawyer should be mindful that if the intermediation
fails the result can be additional cost, embarrassment and
recrimination.  In some situations the risk of failure is so
great that intermediation is plainly impossible.  For example, a
lawyer cannot undertake common representation of clients between
whom contentious litigation is imminent or who contemplate
contentious negotiations.  More generally, if the relationship
between the parties has already assumed definite antagonism, the
possibility that the client's interests can be adjusted by
intermediation ordinarily is not very good.

    The appropriateness of intermediation can depend on its
form.  Forms of intermediation range from informal arbitration,
where each client's case is presented by the respective client
and the lawyer decides the outcome, to mediation, to common
representation where the clients' interests are substantially
though not entirely compatible.  One form may be appropriate in
circumstances where another would not.  Other relevant factors
are whether the lawyer subsequently will represent bother parties
on a continuing basis and whether the situation involves creating
a relationship between the parties or terminating one.

Confidentiality and privilege


    A particularly important factor in determining the
appropriateness of intermediation is the effect on client-lawyer
confidentiality and the attorney-client privilege.  In a common
representation, the lawyer is still required both to keep each
client adequately informed and to maintain confidentiality of
information relating to the representation.  See rules 4-1.4 and
4-1.6.  Complying with both requirements while acting as
intermediary requires a delicate balance.  If the balance cannot
be maintained, the common representation is improper.  With
regard to the attorney-client privilege, the prevailing rule is
that as between commonly represented clients the privilege does
not attach.  Hence, it must be assumed that if litigation
eventuates between the clients, the privilege will not protect
any such communications, and the clients should be so advised.

    Since the lawyer is required to be impartial between
commonly represented clients, intermediation is improper when
that impartiality cannot be maintained.  For example, a lawyer
who has represented one of the clients for a long period and in a
variety of matters might have difficulty being impartial between
that client and one to whom the lawyer has only recently been
introduced.

Consultation

    In acting as intermediary between clients, the lawyer is
required to consult with the clients on the implications of doing
so and to proceed only upon consent based on such a consultation.
The consultation should make clear that the lawyer's role is not
that of partisanship normally expected in other circumstances.

    Paragraph (b) is an application of the principle expressed
rule 4-1.4.  Where the lawyer is intermediary, the clients
ordinarily must assume greater responsibility for decisions than
when each client is independently represented.

Withdrawal

    Common representation does not diminish the rights of each
client in the client-lawyer relationship.  Each has the right to
loyal and diligent representation, the right to discharge the
lawyer as stated in 4-1.16, and the protection of rule 4-1.9
concerning obligations to a former client.

RULE 4-2.3  EVALUATION FOR USE BY THIRD PERSONS

    (a) A lawyer may undertake an evaluation of a matter
affecting a client for the use of someone other than the client
if:

    (1) The lawyer reasonably believes that making the
evaluation is compatible with other aspects of the lawyer's
relationship with the client; and

    (2) The client consents after consultation.

    (b) In reporting the evaluation, the lawyer shall indicate
any material limitations that were imposed on the scope of the
inquiry or on the disclosure of information.

    (c) Except as disclosure is required in connection with a
report of an evaluation, information relating to the evaluation
is otherwise protected by rule 4-1.6.

Comment

Definition

    An evaluation may be performed at the client's direction but
for the primary purpose of establishing information for the
benefit of third parties;  for example, an opinion concerning the
title of property rendered at the behest of a vendor for the
information of a prospective purchaser or at the behest of a
borrower for the information of a prospective lender.  In some
situations, the evaluation may be required by a government
agency; for example, an opinion  concerning the legality of the
securities registered for sale under the securities laws.  In
other instances, the evaluation may be required by a third
person, such as a purchaser of a business.

     Lawyers for the government may be called upon to give a
formal opinion on the legality of contemplated government agency
action.  In making such an evaluation, the government lawyer acts
at the behest of the government as the client but for the purpose
of establishing the limits of the agency's authorized activity.
Such an opinion is to be distinguished from confidential legal
advice given agency officials.  The critical question is whether
the opinion is to be made public.

    A legal evaluation should be distinguished from an
investigation of a person with whom the lawyer does not have a
client-lawyer relationship.  For example, a lawyer retained by a
purchaser to analyze a vendor's title to property does not have a
client-lawyer relationship with the vendor.  So also, an
investigation into a person's affairs by a government lawyer, or
by special counsel employed by the government, is not an
evaluation as that term is used in this rule.  The question is
whether the lawyer is retained by the person whose affairs are
being examined.  When the lawyer is retained by that person, the
general rules concerning loyalty to client and preservation of
confidences apply, which is not the case if the lawyer is
retained by someone else.  For the reason, it is essential to
identify the person by whom the lawyer is retained.  This should
be made clear not only to the person under examination, but also
to others to whom the results are to be made available.

Duty to third person

    When the evaluation is intended for the information or use of
a third person, a legal duty to that person may or may not arise.
That legal question is beyond the scope of this rule.  However,
since such an evaluation involves a departure from the normal
client-lawyer relationship, careful analysis of the situation is
required.  The lawyer must be satisfied  as a matter of
professional judgment that making the evaluation is compatible
with other functions undertaken in behalf of the client.  For
example, if the lawyer is acting as an advocate in defending the
client against charges of fraud, it would normally be
incompatible with that responsibility for the lawyer to perform
an evaluation for others concerning the same or a related
transaction.  Assuming no such impediment is apparent, however,
the lawyer should advise the client of the implications of the
evaluation, particularly the lawyer's responsibilities to third
persons and the duty to disseminate the findings.

Access to and disclosure of information

    The quality of an evaluation depends on the freedom and
extent of the investigation upon which it is based.  Ordinarily,
a lawyer should have whatever latitude of investigation seems
necessary as a matter of professional judgment.  Under some
circumstances, however, the terms of the evaluation may be
limited.  For example, certain issues or sources may be
categorically excluded or the scope of search may be limited by
time constraints or the noncooperation of persons having relevant
information.  An such limitations which are material to the
evaluation should be described in the report.  If, after a lawyer
has commenced an evaluation, the client refuses to comply with
the terms upon which it was understood the evaluation was to have
been made, the lawyer's obligations are determined by law, having
reference to the terms of the client's agreement and the
surrounding circumstances.

Financial auditors' requests for information

    When a question concerning the legal situation of a client
arises at the instance of the client's financial auditor and the
question is referred to the lawyer, the lawyer's response may be
made in accordance with procedures recognized in the legal
profession.  Such a procedure is set forth in the American Bar
Association Statement of Policy Regarding Lawyer's Responses to
Auditors' Requests for Information, adopted in 1975.

4-3  ADVOCATE

RULE 4-3.1 MERITORIOUS CLAIMS AND CONTENTIONS

    A lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless there is a basis for doing
so that is not frivolous, which includes a good faith argument
for an extension, modification or reversal of existing law.  A
lawyer for the defendant in a criminal proceeding, or the
respondent in a proceeding that could result in incarceration,
may nevertheless so defend the proceeding as to require that
every element of the case be established.

Comment

    The advocate has a duty to use legal procedure for the
fullest benefit of the client's cause, but also a duty not to
abuse legal procedure.  The law, both procedural and substantive,
establishes the limits within which an advocate may proceed.
However, the law is not always clear and never is static.
Accordingly, in determining the proper scope of advocacy, account
must be taken of the law's ambiguities and potential for change.

    The filing of an action or defense or similar action taken
for a client is not frivolous merely because the facts have not
first been fully substantiated or because the lawyer expect to
develop vital evidence only by discovery.  Such action is not
frivolous even though the lawyer believes that the client's
position ultimately will not prevail.  The action is frivolous,
however, if the client desires to have the action taken primarily
for the purpose of harassing or maliciously injuring a person or
if the lawyer is unable either to make a good faith argument of
the merits of the action taken or to support the action taken by
a good faith argument for an extension, modification or reversal
of existing law.

Rule 4-3.2 EXPEDITING LITIGATION

    A lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client.

Comment

    Dilatory practices bring the administration of justice into
disrepute.  Delay should not be indulged merely for the
convenience of the advocates or for the purpose of frustrating an
opposing party's attempt to obtain rightful redress or repose.
It is not a justification that similar conduct is often tolerated
by the bench and bar.  The question is whether a competent lawyer
acting in good faith would regard the course of action as having
some substantial purpose other than delay.  Realizing financial
or other benefit from otherwise improper delay in litigation is
not legitimate interest of the client.

RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL

    (a) A lawyer shall not knowingly:

    (1) Make a false statement of material fact or law to a
tribunal;

    (2) Fail to disclose a material fact to a tribunal when
disclosure is necessary to avoid assisting a criminal or
fraudulent act by the client;

    (3) Fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by
opposing counsel; or

    (4) Permit any witness, including a criminal defendant, to
offer testimony or other evidence that the lawyer knows to be
false.  A lawyer may not offer testimony which he knows to be
false in the form of a narrative unless so ordered by the
tribunal.  If a lawyer has offered material evidence and
thereafter comes to know of its falsity, the lawyer shall take
reasonable remedial measures.

/* This section is often a cause for a great deal of difficulty
when a client in a criminal matter insists on lying, the attorney
wants to withdraw, but the court does not want to allow
withdrawal because it would delay the case. */

    (b) The duties stated in paragraph (a) continue beyond the
conclusion of the proceeding and apply even if compliance
requires disclosure of information otherwise protected by rule
4-1.6.

    (c) A lawyer may refuse to offer evidence that the lawyer
reasonably believes is false.

    (d) In an ex parte proceeding a lawyer shall inform the
tribunal of all material facts known to the lawyer which will
enable the tribunal to make an informed decision, whether or not
the facts are adverse.

Comment

    The advocate's take is to present the client's case with
persuasive force.  Performance of that duty while maintaining
confidences of the client is qualified by the advocate's duty of
candor to the tribunal.  However, an advocate does not vouch for
the evidence submitted in a cause; the tribunal is responsible
for assessing its probative value.

    Representations by a lawyer

    An advocate is responsible for pleadings and other documents
prepared for litigation, but is usually not required to have
personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by
someone on the client's behalf, and not assertions by the lawyer.
Compare rule 4-3.1.  However, an assertion purporting to be on
the lawyer's own knowledge, as in an affidavit by the lawyer or
in a statement in open court, may properly be made only when the
lawyer knows the assertion is true or believes it to be true on
the basis of a reasonably diligent inquiry.  These are
circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation.  The obligation
prescribed in rule 4-1.2(d) not to counsel a client to commit or
assist the client in committing a fraud applies in litigation.
Regarding compliance with rule 4-1.2(d), see the comment to that
rule.  See also the comment to rule 4-8.4(b).

Misleading legal argument

    Legal argument based on a knowingly false representation of
law constitutes dishonesty toward the tribunal.  A lawyer is not
required to make a disinterested exposition of the law, but must
recognize the existence of pertinent legal authorities.
Furthermore, as stated in paragraph (a)(3), an advocate has a
duty to disclose directly adverse authority in the controlling
jurisdiction which has not been disclosed by the opposing party.
The underlying concept is the legal argument is a discussion
seeking to determine the legal premises properly applicable to
the case.

False evidence

    When evidence that a lawyer knows to be false is provided by
a person who is not the client, the lawyer must refuse to offer
it regardless of the client's wishes.

    When false evidence is offered by the client, however, a
conflict may arise between the lawyer's duty to keep the client's
revelations confidential and the duty of candor to the court.
Upon ascertaining that material evidence is false, the lawyer
should seek to persuade the client that the evidence should not
be offered or, if it has been offered that its false character
should immediately be disclosed.  If the persuasion is
ineffective, the lawyer must take reasonable remedial measures.

    Except in the defense of a criminal accused, the rule
generally recognized is that, if necessary to rectify the
situation, an advocate must disclose the existence of the
client's deception to the court or to the other party.  Such a
disclosure can result in grave consequences to the client,
including not only a sense of betrayal but also loss of the case
and perhaps a prosecution of perjury.  But the alternative is
that the lawyer cooperate in deceiving the court, thereby
subverting the truth-finding process which the adversary system
is designed to implement.  See rule 4-1.2(d).  Furthermore,
unless it is clearly understood that the lawyer will act upon the
duty to disclose the existence of false evidence the client can
simply reject the lawyer's advice to reveal the false evidence
and insist that the lawyer keep silent.  Thus, the client could
in effect coerce the lawyer into being a party to fraud on the
court.

Perjury by a criminal defendant

    Whether an advocate for a criminally accused has the same
duty of disclosure has been intensely debated.  While it is
agreed that the lawyer should seek to persuade the client to
refrain from perjurious testimony, there has been dispute
concerning the lawyer's duty when that persuasion fails.  If the
confrontation with the client occurs before trial, the lawyer
ordinarily can withdraw.  Withdrawal before trial may not be
possible if trial is imminent, if the confrontation with the
client does not take place until the trial itself, or if no other
counsel is available.

    The most difficult situation, therefore, arises in a
criminal case where the accused insists on testifying when the
lawyer knows that the testimony is perjurious.  The lawyer's
effort to rectify the situation can increase the likelihood of
the client's being convicted as well as opening the possibility
of a prosecution of perjury.  On the other hand, if the lawyer
does not exercise control over the proof, the lawyer
participates, although in a merely passive way, in deception of
the court.

Remedial measures

    If perjured testimony or false evidence has been offered,
the advocate's proper course ordinarily is to remonstrate with
the client confidentially.  If that fails, the advocate should
seek to withdraw if that will remedy the situation.  Subject to
the caveat expressed in the next section of this comment, if
withdrawal will not remedy the situation or is impossible and the
advocate determines that disclosure is the only measure that will
avert a fraud on the court, the advocate should make disclosure
to the court.  It is for the court then to determine what should
be done-making a statement about the matter to the trier of fact,
ordering a mistrial, or perhaps nothing.  If the false testimony
was that of the client, the client may controvert the lawyer's
version of their communication when the lawyer discloses the
situation to the court.  If there is an issue whether the client
has committed perjury, the lawyer cannot represent the client in
resolution of the issue and a mistrial may be unavoidable.  An
unscrupulous client might in this way attempt to produce a series
of mistrials and thus escape prosecution.  However, a second such
encounter could be construed as deliberate abuse of the right to
counsel and as such a waiver of the right to further
representation.

Constitutional requirements

    The general rule-that an advocate must disclose the existence
of perjury with respect to a material fact, even that of a
client-applies to defense counsel in criminal cases, as well as
in other instances.  However, the definition of the lawyer's
ethical duty in such a situation may be qualified by
constitutional provisions for due process and the right to
counsel in criminal cases.

Refusing to offer proof believed to be false

    Generally speaking, a lawyer has authority to refuse to
offer testimony or other proof that the lawyer believes is
untrustworthy.  Offering such proof may reflect adversely on the
lawyer's ability to discriminate in the quality of evidence and
thus impair the lawyer's effectiveness as an advocate.  In
criminal cases, however, a lawyer may, in some jurisdictions, be
denied this authority by constitutional requirements governing
the right to counsel.

    A lawyer may not assist his client or any witness in
offering false testimony or other false evidence, not may the
lawyer permit his client or any other witness to testify falsely
in the narrative form unless ordered to do so by the tribunal.
If a lawyer knows that his client intends to commit perjury, the
lawyer's first duty is to attempt to convince the client to
testify truthfully.  If the client still insists on committing
perjury the lawyer must threaten to disclose the client's intent
to commit perjury to the judge.  If the threat of disclosure does
not successfully convince the client to testify truthfully, the
lawyer must disclose the fact that his client intends to lie to
the tribunal and, per 4-1.6, information sufficient to prevent
the commission of the crime of perjury.

    The lawyer's duty not to assist witnesses, including his own
client, in offering false evidence stems from the Rules of
Professional Conduct, statutes and caselaw.

    Rule 4-1.2(d) prohibits the lawyer from assisting a client
in conduct that the lawyer knows or reasonable should know is
criminal or fraudulent.

    Rule 4-3.4(b) prohibits a lawyer from fabricating evidence
or assisting a witness to testify falsely.
    Rule 4-8.4(a) prohibits the lawyer from violating the Rules
of Professiona Conduct or knowingly assisting another to do so.

    Rule 4-8.4(b) prohibits a lawyer from committing a criminal
act that reflects adversely on the lawyer's honesty,
trustworthiness, or fitness as a lawyer.

    Rule 4-8.4(c) prohibits a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation.

    Rule 4-8.4(d) prohibits a lawyer from engaging in conduct
that is prejudicial to the administration of justice.

    Rule 4-1.6(b) requires a lawyer to reveal information to the
extent the lawyer reasonably believes necessary to prevent a
client from committing a crime.

    This rule, 4-3.3(a)(2), requires a lawyer to reveal a
material fact to the tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act by the client, and
4-3.3(a)(4) prohibits a lawyer from offering false evidence and
requires the lawyer to take reasonable remedial measures when
false material evidence has been offered.

    Rule 4-1.6 prohibits a lawyer from representing a client if
the representation will result in a violation of the Rules of
Professional Conduct or law and permits the lawyer to withdraw
from representation if the client persists in a course of action
which the lawyer reasonable believes in criminal or fraudulent or
repugnant or imprudent.  Rule 4-1.6(c) recognizes that
notwithstanding good cause for terminating representation of a
client, a lawyer is obliged to continue representation if so
ordered by a tribunal.

Ex parte proceedings

    Ordinarily, an advocate has the limited responsibility of
presenting one side of the matters that a tribunal should
consider in reaching a decision; the conflicting position is
expected to be presented by the opposing party.  However, in an
ex parte proceeding, such as an application for a temporary
restraining order, there is no balance of presentation by
opposing advocates.  The object of an ex parte proceeding is
nevertheless to yield a substantially just result.  The judge has
an affirmative responsibility to accord the absent party just
consideration.  The lawyer for the represented party has the
correlative duty to make disclosures of material facts known to
the lawyer and that the lawyer reasonably believes are necessary
to an informed decision.

RULE 4-3.4 FAIRNESS OF OPPOSING PARTY AND COUNSEL

    A lawyer shall not:

    (a) Unlawfully obstruct another party's access to evidence;
or otherwise unlawfully alter, destroy, or conceal a document or
other material that the lawyer knows or reasonably foreseeable
proceeding.  A lawyer shall not counsel or assist another person
to do any such act.

    (b) Fabricate evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness that is
prohibited by law.

    (c) Knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion that no
valid obligation exist.

    (d) In pretrial procedure, make a frivolous discovery
request or intentionally fail to comply with a legally proper
discovery request by an opposing party.

    (e) In trial, allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by
admissible, evidence, assert personal knowledge of facts in issue
except when testifying as a witness, or state a personal opinion
as to the justness of a cause, the credibility of a witness, the
culpability of a civil litigant, or the guilt or innocence of an
accused.

    (f) Request a person other than a client to refrain from
voluntarily giving relevant information to another party unless:

    (1) The person is a relative or an employee or other agent
of a client; and

    (2) It is reasonable to believe that the person's interests
will not be adversely affected by refraining from giving such
information.

Comment

    The procedure of the adversary system contemplates that the
evidence in a case is to be marshalled competitively by the
contending parties.  Fair competition in the adversary system is
secured by prohibitions against destruction or concealment of
evidence, improperly influencing witnesses, obstructive tactics
in discovery procedure, and the like.

    Documents and other items of evidence are often essential to
establish a claim or defense.  Subject to evidentiary privileges,
the right of an opposing party, including the government, to
obtain evidence through discovery or subpoena is an important
procedural right.  The exercise of that right can be frustrated
if relevant material is altered, concealed or destroyed.
Applicable law in many jurisdictions makes it an offense to
destroy material for the purpose of impairing its availability in
a pending proceeding or one whose commencement can be foreseen.
Falsifying evidence is also generally a criminal offense.
Paragraph (a) applies to evidentiary material generally,
including computerized information.

    With regard to paragraph (b), it is not improper to pay a
witness's expenses or to compensate an expert witness on terms
permitted by law.  The common law rule in most jurisdictions is
that it is improper to pay an occurrence witness any fee for
testifying and that it is improper to pay an expert witness a
contingent fee.

    Paragraph (f) permits a lawyer to advise employees of a
client to refrain from giving information to another party, for
the employees may identify their interests with those of the
client.  See also rule 4-4.2.

RULE 4-3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL

    (a) A lawyer shall not seek to influence a judge, juror,
prospective juror, or other decision maker except as permitted by
law or the rules of court.

    (b) In an adversary proceeding a lawyer shall not
communicate or cause another to communicate as to the merits of
the cause with a judge or an official before whom the proceeding
is pending except:

    (1) In the course of the official proceeding in the cause;

    (2) In writing if the lawyer promptly delivers a copy of the
writing to the opposing counsel or to the adverse party if not
represented by a lawyer;

    (3) Orally upon notice to opposing counsel or to the adverse
party if not represented by a lawyer; or

    (4) As otherwise authorized by law.

    (c) A lawyer shall not engage in conduct intended to disrupt
a tribunal.

    (d) A lawyer shall not:

    (1) Before the trial of a case with which he or she is
connected, communicate or cause another to communicate with
anyone he or she knows to be a member of the venire from which
the jury will be selected.

    (2) During the trial of a case with which he or she is
connected, communicate or cause another to communicate with any
member of the jury.

    (3) During the trial of a case with which he or she is not
connected, communicate or cause another to communicate with a
juror concerning the case.

    (4) After dismissal of the jury in a case with which he or
she is connected, initiate communication with or cause another to
initiate communication with any juror regarding the trial except
to determine whether the verdict may be subject to legal
challenge.  Provided, a lawyer may not interview jurors for this
purpose unless he or she has reason to believe that grounds for
such challenge may exist.  Provided further, before conducting
any such interview the lawyer must file in the cause a notice of
intention to interview setting forth the name of the juror or
jurors to be interviewed.  A copy of the notice must be delivered
to the trial judge and opposing counsel a reasonable time before
such interview.  The provisions of this rule do not prohibit a
lawyer from communicating with veniremen or jurors in the course
of official proceedings or as authorized by court rule or written
order of the court.

Comment

    Many forms of improper influence upon a tribunal are
proscribed by criminal law.  Others are specified in the Code of
Judicial Conduct, with which an advocate should be familiar.  A
lawyer is required to avoid contributing to a violation of such
provisions.

    The advocate's function is to present evidence and argument
so that the cause may be decided according to law.  Refraining
from abusive or obstreperous conduct is corollary of the
advocate's right to speak on behalf of the litigants.  A lawyer
may stand firm against abuse by judge but should avoid
reciprocation; the judge's default is not justification for
similar dereliction by an advocate.  An advocate can present the
cause, protect the record for subsequent review and preserve
professional integrity by patient firmness no less effectively
than by belligerence or theatrics.

RULE 4-3.6 TRIAL PUBLICITY

    (a) A lawyer shall not make an extrajudicial statement that
a reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or reasonable should
know that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding.  A lawyer shall not
counsel or assist another person to make such a statement.
Prosecutors and defense counsel shall exercise reasonable care to
prevent investigators, employees, or other persons assisting in
or associated with a criminal case from making extrajudicial
statements that are prohibited under this rule.

    (b) A statement referred to in paragraph (a) ordinarily is
likely to have such an effect when it refers to a civil matter
triable to a jury, a criminal matter, or any other proceeding
that could result in incarceration, and the statement relates to:

    (1) The character, credibility, reputation, or criminal
record of a party, suspect in a criminal investigation, or
witness or the identity of a witness or the expected testimony of
a party or witness;

    (2) In a criminal case or proceeding that could result in
incarceration, the possibility of a plea of guilty to the
offense, or the existence or contents of any confession,
admission, or statement given by a defendant or suspect or that
person's refusal or failure to make a statement;

    (3) The performance or results of any examination or test or
the refusal or failure of a person to submit to an examination or
test or the identity or nature of physical evidence expected to
be presented;

    (4) Any opinion as to the guilt or innocence of a defendant
or suspect in a criminal case or proceeding that could result in
incarceration;

    (5) Information the lawyer knows or reasonable should know
is likely to be inadmissible as evidence in a trial and would if
disclosed create a substantial risk of prejudicing an impartial
trial; or

    (6) The fact that a defendant has been charged with a crime,
unless there is included therein a statement explaining that the
charge is merely an accusation and that the defendant is presumed
innocent until and unless proven guilty.
    (c) Notwithstanding paragraphs (a) and (b)(1) through (5), a
lawyer involved in the investigation or litigation of a matter
may state without elaboration:

    (1) The general nature of the claim or defense;

    (2) The information contained in a public record;

    (3) That an investigation of the matte is in progress,
including the general scope of the investigation, the offense or
claim, or defense involved and, except when prohibited by law,
the identity of the persons involved;

    (4) The scheduling or result of any step in litigation;

    (5) A request for assistance in obtaining evidence and
information necessary thereto;

    (6) A warning of danger concerning the behavior of a person
involved when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public
interest; and

    (7) In a criminal case:

    a. The identity, residence, occupation, and family status of
the accused;

    b. If the accused has not been apprehended, information
necessary to aid in apprehension of the person;

    c. The fact, time, and place of arrest; and

    d. The identity of investigating and arresting officers or
agencies and the length of the investigation.

Comment

    It is difficult to strike a balance between protecting the
right to a fair trial and safeguarding the right of free
expression.  Preserving the right to a fair trial necessarily
entails some curtailment of the information that may be
disseminated about a party prior to trial, particularly where
trial by jury is involved.  If there were no such limits, the
result would be the practical nullification of the protective
effect of the rules of forensic decorum and the exclusionary
rules of evidence.  On the other hand, there are vital social
interests served by the free dissemination of information about
events having legal consequences and about legal proceedings
themselves.  The public has a right to know about events having
legal consequences and about legal proceedings themselves.  The
public has a right to know about threats to its safety and
measures aimed at assuring its security.  It also has a
legitimate interest in the conduct of judicial proceedings,
particularly in matters of general public concern.  Furthermore,
the subject matter of legal proceedings is often of direct
significance in debate and deliberation over questions of public
policy.

    Special rules of confidentiality may validly govern
proceedings in juvenile, domestic relations and mental disability
proceedings and perhaps other types of litigation.  Rule 4-3.4(c)
requires compliance with such rules.