Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/profcon4.asc

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/* Part 4 of 6 */

RULE 4-3.7 LAWYER AS WITNESS

    (a) A lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness on behalf of his
or her client except where:

    (1) The testimony relates to an uncontested issue;

    (2) The testimony will relate solely to a matter of
formality and there is no reason to believe that substantial
evidence will be offered in opposition to the testimony;

    (3) The testimony relates to the nature and value of legal
services rendered in the case; or

    (4) Disqualification of the lawyer would work substantial
hardship on the client.

    (b) A lawyer may act as advocate in a trial in which another
lawyer in the lawyer's firm is likely to be called as a witness
unless precluded from doing so by rule 4-1.7 or 4-1.9.

/* A change from prior rules. */

Comment

    Combining the roles of advocate and witness can prejudice
the opposing party and can involve a conflict of interest between
the lawyer and client.

    The opposing party has proper objection where the
combination of roles may prejudice that party's rights in the
litigation.  A witness is required to testify on the basis of
personal knowledge, while an advocate is expected to explain and
comment on evidence given by others.  It may not be clear whether
a statement by an advocate-witness should be taken as proof or as
an analysis of the proof.

    Paragraph (a)(1) recognizes that if the testimony will be
uncontested,t he ambiguities in the dual role are purely
theoretical.  Paragraphs (a)(2) and (3) recognize that, where the
testimony concerns the extent and value of legal services
rendered in the action in which the testimony is offered,
permitting the lawyers to testify avoids the need for a second
trial with new counsel to resolve that issue.  Moreover, is such
a situation the judge has first hand knowledge of the matter in
issue; hence, there is less dependence on the adversary process
to test the credibility of the testimony.

    Apart from these two (2) exceptions, paragraph (a)(4)
recognizes that a balancing is required between the interests of
the client and those of the opposing party.  Whether the opposing
party is likely to suffer prejudice depends on the nature of the
case, the importance and probable tenor of the lawyer's
testimony, and the probability that the lawyer's testimony will

conflict with that of other witnesses.  Even if there is risk of
such prejudice, in determining whether the lawyer should be
disqualified due regard must be given to the effect of
disqualification on the lawyer's client.  It is relevant that one
or both parties could reasonably foresee that the lawyer would
probably be a witness.  The principle of imputed disqualification
stated in rule 4-1.10 has no application to this aspect of the
problem.

    Whether the combination of roles involves an improper
conflict of interest with respect to the client is determined by
rule 4-1.7 or 4-1.9.  For example, if there is likely to be
substantial conflict between the testimony of the client and that
of the lawyer or a member of the lawyer's firm, the
representation is improper.  The problem can arise whether the
lawyer is called as a witness on behalf of the client or is
called by the opposing party.  Determining whether or not such a
conflict exists is primarily the responsibility of the lawyer
involved.  See comment to rule 4-1.7.  If a lawyer who is a
member of a firm may not act as both advocate and witness by
reason of conflict of interest, rule 4-1.10 disqualifies the firm
also.

RULE 4-3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

    The prosecutor in a criminal case shall:

    (a) Refrain from prosecuting a charge that the prosecutor
knows is not supported by probable cause;

    (b) Not seek to obtain from an unrepresented accused a
waiver of important pre-trial rights such as a right to a
preliminary hearing;

    (c) Make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the
guilt of the accused or mitigates the offense, and, in connection
whit sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by
a protective order of the tribunal.

Comment


    A prosecutor has the responsibility of a minister of justice
and not simply that of an advocate.  This responsibility carries
with it specific obligations such as making a reasonable effort
to assure that the accused has been advised of the right to, and
the procedure for, obtaining counsel and has been given a
reasonable opportunity to obtain counsel so that guilt is decided
upon the basis of sufficient evidence.  Precisely how far the
prosecutor is required to go in this direction is a matter of
debate.

     Paragraph (b) does not apply to an accused appearing pro se
with the approval of the tribunal, nor doe it forbid the lawful
questioning of a suspect who has knowingly waived the rights to
counsel and silence.

    The exception is paragraph (c) recognizes that a prosecutor
may seek an appropriate protective order from the tribunal if
disclosure of information to the defense could result in
substantial harm to an individual or to the public interest.

RULE 4-3.9 ADVOCATE IN NONADJUDICATIVE PROCEEDINGS

    A lawyer representing a client before a legislative or
administrative tribunal in a nonadjudicative proceeding shall
disclose that the appearance is in a representative capacity and
shall conform to the provisions of rules 4-3.3(a) through (c),
4-3.4(a) through (c), and 4-3.5(a), (c), and (d).

Comment

    In representation before bodies such as legislatures,
municipal councils, and executive and administrative agencies
acting in a rule-making or policy-making capacity, lawyers
present facts, formulate issues, and advance argument in the
matters under consideration.  The decision-making body, like a
court, should be able to rely on the integrity of the submissions
made to it.  A lawyer appearing before such a body should deal
with the tribunal honestly and in conformity with applicable
rules of procedure.

    Lawyers have no exclusive right to appear before
nonadjudicative bodies, as they do before a court.  The
requirements of this rule therefore may subject lawyers to
regulations inapplicable to advocates who are not lawyers.
However, legislatures and administrative agencies have a right to
expect lawyers to deal with them as they deal with courts.

    This rule does not apply to representation of a client in a
negotiation or other bilateral transaction with a governmental
agency; representation in such a transaction is governed by rule
4-4.1 through 4-4.4.

4-4. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

RULE 4-4.1 TRUTHFULNESS IN STATEMENT TO OTHERS


    In the course of representing a client a lawyer shall not
knowingly:

    (a) Make a false statement of material fact or law to a
third person; or

    (b) Fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited by
rule 4-1.6.

Comment

Misrepresentation

    A lawyer is required to be truthful when dealing with others
on a client's behalf, but generally has no affirmative duty to
inform an opposing party of relevant facts.  A misrepresentation
can occur if the lawyer incorporates or affirms a statement of
another person that the lawyer knows is false.
Misrepresentations can also occur by failure to act.

Statements of fact

    This rule refers to statements of fact.  Whether a
particular statement should be regarded as one of fact can depend
on the circumstances.  Under generally accepted conventions in
negotiation, certain types of statements ordinarily are not taken
as statements of material fact.  Estimates of price or value
placed on the subject of a transaction and a party's intentions
as to an acceptable settlement of a claim are in this category
and so is the existence of an undisclosed principal except where
nondisclosure of the principal would constitute fraud.

Fraud by client

    Paragraph (b) recognizes that substantive law may require a
lawyer to disclose certain information to avoid being deemed to
have assisted the client's crime or fraud.  The requirement of
disclosure created by this paragraph is, however, subject to the
obligations created by rule 4-1.6.

RULE 4-4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

    In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer.

/* This is why attorneys simply will not talk to clients
represented by other attorneys. */

Comment

    This rule does not prohibit communication with a party, or an
employee or agent of a party, concerning matters outside the
representation.  For example, the existence of a controversy
between a government agency and a private party, or between two
(2) organizations, does not prohibit a lawyer for either from
communicating with nonlawyer representatives of the other
regarding a separate matter.  Also, parties to a matter may
communicate directly with each other and a lawyer having
independent justification for communicating with the other party
is permitted to do so.  Communications authorized by law include,
for example, the right of a party to a controversy with a
government agency to speak with government officials about the
matter.

    In the case of an organization, this rule prohibits
communications by a lawyer for one party concerning the matter in
representation with persons having a managerial responsibility on
behalf of the organization and with any other person whose act or
omission in connection with that matter may be imputed to the
organization for purposes of civil or criminal liability or whose
statement may constitute an admission on the part of the
organization.  If an agent or employee of the organization is
represented in the matter by his or her own counsel, the consent
by that counsel to a communication will be sufficient for
purposes of this rule.  Compare rule 4-3.4(f).  This rule also
covers any person, whether or not a party to a formal proceeding,
who is represented by counsel concerning the matter in question.

RULE 4-4.3 DEALING WITH UNREPRESENTED PERSONS

    In dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply that
the lawyer is disinterested.  When the lawyer knows or reasonably
should know that the unrepresented person misunderstands the
lawyer's role in the matter, the lawyer shall make reasonable
efforts to correct the misunderstanding.

Comment

    An unrepresented person, particularly one not experienced in
dealing with legal matters, might assume that a lawyer is
disinterested in loyalties or is a disinterested authority on the
law even when the lawyer represents a client.  During the course
of a lawyer's representation of a client, the lawyer should not
give advice to an unrepresented person other than the advice to
obtain counsel.

RULE 4-4.4 RESPECT FOR RIGHTS OF THIRD PERSONS

    In representing a client a lawyer shall not use means that
have no substantial purpose other than to embarrass, delay, or
burden a third person or knowingly use methods of obtaining
evidence that violate the legal rights of such person.

Comment

    Responsibility to a client requires a lawyer to subordinate
the interests of others to those of the client, but that
responsibility does not imply that a lawyer may disregard the
rights of third persons.  It is impractical to catalogue all such
rights, but they include legal restriction on methods of
obtaining evidence from third persons.

4-5.  LAW FIRMS AND ASSOCIATIONS

RULE 4-5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER

    (a) A partner in a law firm shall make reasonable efforts to
ensure that the firm has in effect measures giving reasonable
assurance that all lawyers in the firm conform to the Rules of
Professional Conduct.

    (b) A lawyer having direct supervisory authority over
another lawyer shall make reasonable efforts to ensure that the
other lawyer conforms to the Rules of Professional Conduct.

    (c) A lawyer shall be responsible for another lawyer's
violation of the Rules of Professional Conduct if:

    (1) The lawyer orders or, with knowledge of the specific
conduct, ratifies the conduct involved; or

    (2) The lawyer is a partner in the law firm in which the
other lawyer practices, or has direct supervisory authority over
the other lawyer, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take
reasonable remedial action.

Comment

    Paragraphs (a) and (b) refer to lawyers who have supervisory
authority over the professional work of a firm or legal
department of a government agency.  This includes members of a
partnership and the shareholders in a law firm organized as a
professional corporation; lawyers have supervisory authority in
the law department of an enterprise or government agency; and
lawyers who have intermediate managerial responsibilities in a
firm.

    The measures required to fulfill the responsibility
prescribed in paragraphs (a) and (b) can depend on the firm's
structure and the nature of its practice.  In a small firm,
informal supervision and occasional admonition ordinarily might
be sufficient.  In a large firm, or in practice situations in
which intensely difficult ethical problems frequently arise, more
elaborate procedures may be necessary.  Some firms, for example,
have a procedure whereby junior lawyers can make confidential
referral of ethical problems directly to a designated senior
partner or special committee.  See rule 4-5.2.  Firms, whether
large or small, may also rely on continuing legal education in
professional ethics.  In any event the ethical atmosphere of a
firm can influence the conduct of all its members and a lawyer
having authority over the work of another may not assume that the
subordinate lawyer will inevitably conform to the rules.

    Paragraph (c)(1) expresses a general principle of
responsibility for acts of another.  See also rule 4-8.4(a).

     Paragraph (c)(2) defines the duty of a lawyer having direct
supervisory authority over performance of specific legal work by
another lawyer.  Whether a lawyer has such supervisory authority
in particular circumstances is a question of fact.  Partners of a
private firm have at least indirect responsibility for all work
being done by the firm, while a partner in charge of a particular
matter ordinarily has direct authority over other firm lawyers
engaged in the matter.  Appropriate remedial action by a partner
would depend on the immediacy of the partner's involvement and
the seriousness of the misconduct.  The supervisor is required to
intervene to prevent avoidable consequences of misconduct if the
supervising lawyer knows that a subordinate misrepresented a
matter to an opposing party in negotiation, the supervisor as
well as the subordinate has a duty to correct the resulting
misapprehension.

    Professional misconduct by a lawyer under supervision could
reveal a violation of paragraph (b) on the part of the
supervisory lawyer even though it does not entail a violation of
paragraph (c) because there was no direction, ratification, or
knowledge of the violation.

    Apart from this rule and rule 4-8.4(a), a lawyer does not
have disciplinary liability for the conduct of a partner,
associate, or subordinate.  Whether a lawyer may be liable
civilly or criminally for another lawyer's conduct is a question
of law beyond the scope of these rules.

RULE 4-5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER

    (a) A lawyer is bound by the Rules of Professional Conduct
notwithstanding that the lawyer acted at the direction of another
person.

    (b) A subordinate lawyer does not violate the Rules of
Professional Conduct if that lawyer acts in accordance with a
supervisory lawyer's reasonable resolution of an arguable
question of professional duty.

/* An extremely unusual concession to the large firms,
governmental agencies etc. allowing supervisors the right to
direct the activities of supposedly independent, educated,
professionals. */

Comment

    Although a lawyer is not relieved of responsibility for a
violation by the fact that the lawyer acted at the direction of a
supervisor, that fact may be relevant in determining whether a
lawyer had the knowledge required to render conduct a violation
of the rules.  For example, if a subordinate filed a frivolous
pleading at the direction of a supervisor, the subordinate would
not be guilty of a professional violation unless the subordinate
knew of the document's frivolous character.

    When lawyers in a supervisor-subordinate relationship
encounter a matte involving professional judgment as to ethical
duty, the supervisor may assume responsibility for making the
judgment as to ethical duty, the supervisor may assume
responsibility for making the judgment.  Otherwise a consistent
course of action or position could not be taken.  If the question
can reasonably be answered only one way, the duty of both lawyers
is clear and they are equally responsible for fulfilling it.
However, if the question is reasonably arguable, someone has to
decide upon the course of action.  That authority ordinarily
reposes in the supervisor, and a subordinate may be guided
accordingly.  For example, if a question arises whether the
interests of two (2) clients conflict under rule 4-1.7, the
supervisor's reasonable resolution of the question should protect
the subordinate professionally if the resolution is subsequently
challenged.

RULE 4-5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

    With respect to a nonlawyer employed or retained by or
associated with a lawyer.

    (a) A partner in a law firm shall make reasonable efforts to
ensure that the firm has in effect measures giving reasonable
assurance that the person's conduct is compatible with the
professional obligation of the lawyer;

    (b) A lawyer having direct supervisory authority over the
nonlawyer shall make reasonable efforts to ensure that the
person's conduct is compatible with the professional obligations
of the lawyer; and

    (c) A lawyer shall be responsible for conduct of such a
person that would be a violation of the Rules of Professional
Conduct if engaged in by a lawyer:

    (1) The lawyer orders or, with the knowledge of the specific
conduct, ratifies the conduct involved; or

    (2) The lawyer is a partner in the law firm in which the
person is employed, or had direct supervisory authority over the
person, and knows of the conduct at a time when its consequences
can be avoided or mitigated but fails to take reasonable remedial
action.

Comment

    Lawyers generally employ assistants in their practice,
including secretaries, investigators, law student interns, and
paraprofessionals.  Such assistants, whether employees or
independent contractors, act for the lawyer in rendition of the
lawyer's professional services.   A lawyer should give such
assistants appropriate instruction and supervision concerning the
ethical aspects of their employment, particularly regarding the
obligation not to disclose information relating to representation
of the client, and should be responsible for their work product.
The measures employed in supervising nonlawyers should take
account of the fact that they do not have legal training and are
not subject to professional discipline.

RULE 4-5.4  PROFESSIONAL INDEPENDENCE OF A LAWYER

    (a) A lawyer or law firm shall not share legal fees with a
nonlawyer, except that:

    (1) An agreement by a lawyer with the lawyer's firm,
partner, or associate may provide for the payment of money, over
a reasonable period of time after the lawyer's death, to the
lawyer's estate, or to one or more specified persons;

    (2) A lawyer who undertakes to complete unfinished legal
business of a deceased lawyer may pay to the estate of the
deceased lawyer that proportion of the total compensation which
fairly represents the services rendered by the deceased lawyer;
and

    (3) A lawyer or law firm may include nonlawyer employees in
a compensation or retirement plan, even though the plan is based
in whole or in part on a profit-sharing arrangement.

    (b) A lawyer shall not form a partnership with a nonlawyer
if any of the activities of the partnership consist of the
practice of law.

    (c) A lawyer shall no permit a person who recommends,
employs, or pays the lawyer to render legal services for another
to direct or regulate the lawyer's professional judgment in
rendering such legal services.

    (d) A lawyer shall not practice with or in the form of a
professional corporation or association authorized to practice
law for a profit if:

    (1) A nonlawyer owns any interest therein, except that a
fiduciary representative of the estate of a lawyer may hold the
stock or interest of the lawyer for a reasonable time during
administration; or

    (2) A nonlawyer has the right to direct or control the
professional judgment of a lawyer.
Amended and effective June 8, 1989 (544 So.2d 193).

Comment

    The provisions of this rule express traditional limitations
on sharing fees.  These limitations are to protect the lawyer's
professional independence of judgment.  Where someone other than
the client pays the lawyer's fee or salary, or recommends
employment of the lawyer, that arrangement does not modify the
lawyer's obligation to the client.  As stated in paragraph (c),
such arrangements should not interfere with the lawyer's
professional judgment.

RULE 4-5.5 UNLICENSED PRACTICE OF LAW

A lawyer shall not:

    (a) Practice law in a jurisdiction where doing so violates
the regulation of the legal profession in that jurisdiction; or

    (b) Assist a person who is not a member of the bar in the
performance of activity that constitutes the unlicensed practice
of law.

Comment

    The definition of the practice of law is established by law
and varies from one jurisdiction to another.  Whatever the
definition, limiting the practice of law to members of the bar
protects the public against rendition of legal services by
unqualified persons.  Paragraph (b) does not prohibit a lawyer
from employing the services of paraprofessionals and delegating
functions to them, so long as the lawyer supervises the delegated
work and retains responsibility for their work.  See rule 4-5.3.
Likewise, it does not prohibit lawyers from providing
professional advice and instruction to nonlawyers whose
employment requires knowledge of law; for example, claims
adjusters, employees of financial or commercial institutions,
social workers, accountants, and persons employed in government
agencies.  In addition, a lawyer may counsel nonlawyers who wish
to proceed pro se.

RULE 4-5.6 RESTRICTIONS ON RIGHT TO PRACTICE

    A lawyer shall not participate in offering or making:

    (a) A partnership of employment agreement that restricts the
rights of a lawyer to practice after termination of the
relationship, except an agreement concerning benefits upon
retirement; or

    (b) An agreement in which a restriction on the lawyer's
right to practice is part of the settlement of a controversy
between private parties.

/* Unlike doctors, non-competition clauses are simply made
unlawful. */

Comment

    An agreement restricting the right of partners or associates
to practice after leaving a firm not only limits their
professional autonomy, but also limits the freedom of clients to
choose a lawyer.  Paragraph (a) prohibits such agreements except
for restrictions incident to provisions concerning retirement
benefits for service with the firm.

    Paragraph (b) prohibits a lawyer from agreeing not to
represent other persons in connections with settling a claim on
behalf of a client.

4-6.  PUBLIC SERVICE

RULE 4-6.1  PROBONO PUBLIC SERVICE

    A lawyer should render public interest legal service,  A
lawyer may discharge this responsibility by:

    (a) Providing professional services at no fee or a reduced
fee to persons of limited means or to public service or
charitable groups or organizations;

    (b) Service without compensation in public interest
activities that improve the law, the legal system or the legal
profession; or

    (c) Financial support for organizations that provide legal
services to persons of limited means.

Comment

    Each lawyer engaged in the practice of law has a
responsibility to provide public interest legal services without
fee, or at a substantially reduced fee, in one or more of the
following areas:  poverty law, civil rights law, public rights
law, charitable organization representation, and the
administration of justice.  This rule expresses that policy but
is not intended to be enforced through disciplinary process.

    The rights and responsibilities of individuals and
organizations in the United States are increasingly defined in
legal terms.  As a consequence, legal assistance in coping with
the web of statutes, rules, and regulations is imperative for all
persons.

    The basic responsibility for providing legal services for
those unable to pay ultimately rests upon the individual lawyer,
and personal involvement in the problems of the disadvantaged can
be on of the most rewarding experiences in the life of a lawyer.
Every lawyer, regardless of professional prominence or
professional workload, should find time to participate in or
otherwise support the provision of legal services to the
disadvantaged.  The provision of free legal services to those
unable to pay reasonable fees continues to be an obligation of
each lawyer as well as the profession generally, but the efforts
of individual lawyers are often not enough to meet the need.
Thus, it has been necessary for the profession and government to
institute additional programs to provide legal services.
Accordingly, legal aid offices, lawyer referral services, and
other related programs have been developed, and others will be
developed by the profession and government.  Every lawyer should
support all proper efforts to meet this need for legal services.

RULES 4-6.2 ACCEPTING APPOINTMENTS

     A lawyer shall not seek to avoid appointment by a tribunal
to represent a person except for good cause, such as:

    (a) Representing the client is likely to result in violation
of the Rules of Professional Conduct or law;

    (b) Representing the client is likely to result in an
unreasonable financial burden on the lawyer; or

    (c) The client or the cause is so repugnant to the lawyer as
to be likely to impair the client-lawyer relationship or the
lawyer's ability to represent the client.

Comment

    A lawyer ordinarily is not obliged to accept a client whose
character or cause the lawyer regards as repugnant.  The lawyer's
freedom to select clients is, however, qualified.  All lawyers
have a responsibility to assist in providing pro bono publico
service.  See rule 4-6.1.  An individual lawyer fulfills this
responsibility by accepting a fair share of unpopular matters or
indigent or unpopular clients.  A lawyer may also be subject to
appointment by a court to serve unpopular clients or persons
unable to afford legal services.

Appointed counsel

    For good cause a lawyer may seek to decline an appointment
to represent a person who cannot afford to retain counsel or
whose cause is unpopular.  Good cause exists if the lawyer could
not handle the matter competently, see rule 4-1.1, or if
undertaking the representation would result in an improper
conflict of interest, for example, when the client or the cause
is so repugnant to the lawyer as to be likely to impair the
client-lawyer relationship or the lawyer's ability to represent
the client.  A lawyer may also seek to decline an appointment if
acceptance would be unreasonably burdensome, for example, when it
would impose a financial sacrifice so great as to be unjust.
    An appointed lawyer has the same obligations to the client as
retained counsel, including the obligations of loyalty and
confidentiality, and is subject to the same limitations on the
client-lawyer relationship, such as the obligation to refrain
from assisting the client in violation of the rules.

RULE 4-6.3 MEMBERSHIP IN LEGAL SERVICES ORGANIZATION

    A lawyer may serve as a director, officer or member of a
legal services organization, apart from the law firm in which the
lawyer practices, notwithstanding that the organization serves
persons having interests adverse to the client of the lawyer.
The lawyer shall not knowingly participate in a decision or
action of the organization:

    (a) If participating in the decision would be incompatible
with the lawyer's obligations to a client under rule 4-1.7; or

    (b) Where the decision could have a material adverse effect
on the representation of a client of the organization whose
interests are adverse to a client of the lawyer.

Comment

    Lawyers should be encouraged to support and participate in
legal service organization.  A lawyer who is an officer or a
member of such an organization does not thereby have a
client-lawyer relationship with persons served by the
organization.  However, there is potential conflict between the
interests of such persons and the interests of the lawyer's
clients.  If the possibility of such conflict disqualified a
lawyer from serving on the board to a legal services
organization, the profession's involvement in such organizations
would be severely curtailed.

    It may be necessary in appropriate cases to reassure a
client of the organization that the representation will not be
affected by conflicting loyalties of a member of the board.
Established, written policies in this respect can enhance the
credibility of such assurances.

RULE 4-6.4 LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS

    A lawyer may serve as a director, officer, or member of an
organization involved in reform of the law or its administration
notwithstanding that the reform may affect the interests of a
client of the lawyer.  When the lawyer knows that the interests
of a client may be materially affected by a decision in which the
lawyer participates, the lawyer shall disclose the fact but need
not identify the client.

Comment

    Lawyers involved in organizations seeking law reform
generally do not have a client-lawyer relationship with the
organization.  Otherwise, it might follow that a lawyer could not
be involved in a bar association law reform program that might
indirectly affect a client.  See also rule 4-1.2(b).  For
example, a lawyer specializing in antitrust litigation might be
regarded as disqualified from participating in drafting revisions
of rules governing that subject.  In determining the nature and
scope of participation in such activities, a lawyer should be
mindful of obligations to clients under other rules, particularly
rule 4-1.7.  A lawyer is professionally obligated to protect the
integrity of the program by making an appropriate disclosure
within the organization when the lawyer knows a private client
might be materially affected.

4-7 INFORMATION ABOUT LEGAL SERVICES

RULE 4-7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

    A lawyer shall not make or permit to be made a false,
misleading, deceptive or unfair communication about the lawyer or
the lawyer's services.  A communication violates this rule if it:

    (a) Contains a material misrepresentation of fact or law or
omits a fact necessary to make the statement considered as a
whole not materially misleading;

    (b) Is likely to create an unjustified expectation about
results the lawyer can achieve or states or implies that the
lawyer can achieve results by means that violate the Rules of
Professional Conduct or other law;

    (c) Compares the lawyer's services with other lawyers'
services, unless the comparison can be factually substantiated;
or

    (d) Contains a testimonial.

/* Whether this provision, which is really a rule regarding
advertising will be upheld is now under consideration by various
courts, with the trend being against upholding the rule. */

Comment

    This rule governs all communications about a lawyer's
services, including advertising permitted by rule 4-7.2.
Whatever means are used to make known a lawyer's services,
statements about them must be truthful.  This precludes any
material misrepresentation or misleading omission, such as where
a lawyer states or implies certification or recognition as a
specialist other than in according with rule 4-7.5, where a
lawyer implies that any court, tribunal or other public body or
official can be improperly influenced, or where a lawyer
advertises a particular fee or a contingency fee without
disclosing whether the client will also be liable for costs.
Another example of a misleading omission is an advertisement for
a law firm which states that all the firm's lawyers are juris
doctors but does not disclose that a juris doctorate is a law
degree rather than a medical degree of some sort and that
virtually any law firm in the United States can make the same
claim.  Although rule 4-7.2 permits lawyers to list the
jurisdictions and courts to which they are admitted, it also
would be misleading for a lawyer who does not list other
jurisdictions or courts to state that he or she is a member of
The Florida bar.  Standing by itself, that otherwise truthful
statement implies falsely that the lawyer possesses a
qualification not common to virtually all lawyers practicing in
Florida.  The latter two examples of misleading omissions also
are examples of unfair advertising.

    The prohibition in paragraph (b) of statements that may
create "unjustified expectations" precludes advertisements about
results obtained on behalf of a client, such as the amount of a
damage award or the lawyer's record in obtaining favorable
verdicts, and advertisements obtaining favorable verdicts, and
advertisements containing client endorsements or testimonials.
Such information may create the unjustified expectation that
similar results can be obtained for others without reference to
the specific factual and legal circumstances.

    The prohibition in paragraph (c) of comparisons that cannot
be factually substantiated would preclude a lawyer from
representing that he or she or his or her law firm is "the best,"
"one of the best," or "on the most experienced" in a field of
law.

    The prohibition in paragraph (d) would preclude endorsements
or testimonials because they are inherently misleading to a
layman untrained in the law.  Potential clients are likely to
infer from the testimonial that the lawyer will reach similar
results in future cases.  Because the lawyer cannot directly make
this assertion, the lawyer is not permitted to indirectly make
that assertion through the use of testimonials.

RULE 4-7.2 ADVERTISING

    (a) Subject to all the requirements set forth in this
subchapter 4-7, including the filing requirements of rule 4-7.5,
a lawyer may advertise services through public media, such as a
telephone directory, legal directory, or other periodical,
billboards and other signs, radio television, and recorded
messages the public may access by dialing a telephone number, or
through written communication not involving solicitation as
defined in rule 4-7.4.

/* Note that these rules are probably unique to each
jurisidiction. */


    (b) Advertisements on the electronic media such as
television and radio may contain the same factual information and
illustrations as permitted in advertisements in the print media,
but the information shall be articulated by a single voice, with
no background sound other than instrumental music.  The voice may
be that of a full-time employee of the firm whose services are
advertised; it shall not be that of a celebrity whose voice is
recognizable to the public.  The lawyer or full-time employee of
the firm whose services are being advertised may appear on screen
or on radio.

    (c) All advertisements and written communications pursuant
to these rules shall include the name of at least one lawyer or
the lawyer or the lawyer referral service responsible for their
content.

    (d) Except as provided in this paragraph, all advertisements
shall contain the following disclosure:  "The hiring of a lawyer
is an important decision that should not be based solely upon
advertisements.  Before you decide, ask us to send you free
written information about our qualifications and experience."
This disclosure need not appear in electronic advertisements or
advertisements in the public print media that contain no
illustrations and no information other than that listed in
paragraph (n)(1)-(8) of this rule.

    (e) There shall be no dramatization in any advertisement in
any medium.

    (f) Illustrations used in advertisements shall present
information which can be factually substantiated and is not
merely self-laudatory.

    (g) Every advertisement and written communication that
indicates one or more areas of law in which the lawyer or law
firm practices shall conform to the requirements of rule 4-7.6.

    (h) Every advertisement and written communication that
contains information about the lawyer's fee, including those
which indicate no fee will be charged in the absence of a
recovery, shall disclose whether the client will be liable for
any expenses in addition to the fee.  Additionally,
advertisements and written communications indicating that the
charging of a fee is contingent on outcome or that the fee will
be a percentage of the recovery shall disclose (1) that the
client will be liable for expenses regardless of outcome, if the
lawyer so intends to hold the client liable; and (2) whether the
percentage fee will be computed before expenses are deducted from
the recovery, if the lawyer intends to compute the percentage fee
before deducting the expenses.

    (i) A lawyer who advertises a specific fee or range of fees
for particular service shall honor the advertised fee or range of
fees for at least 90 days unless the advertisement specifies a
shorter period; provided that, for advertisements in the yellow
pages of telephone directories or other media not published more
frequently than annually, the advertised fee or range of fees
shall be honored for no less than one year following publication.

    (j) A lawyer shall not make statements which are merely
self-laudatory or statements describing or characterizing the
quality of the lawyer's services in advertisements and written
communications; provided that, this provision shall not apply to
information furnished to a prospective client at that person's
request or to information supplied to existing clients.

    (k) A lawyer shall not advertise services under a name that
violates the provisions of rule 4-7.7.

    (l) All advertisements and written communications provided
for under these rules shall disclose the geographic location, by
the city or town, of the office in which the lawyer or lawyers
who will actually perform the services advertised principally
practice law.  If the office location is outside a city or town,
the county is which the office is located must be disclosed.

    (m) No lawyer shall, directly or indirectly, pay all or part
of the cost of an advertisement by a lawyer not in the same firm
unless the advertisement discloses the name and address of the
nonadvertising lawyer, the relationship between the advertising
lawyer and the nonadvertising lawyer, and whether the advertising
lawyer may refer any case received through the advertisement to
the nonadvertising lawyer.

    (n) The following information in advertisements and written
communications shall be presumed not to violate the provisions of
rule 4-7.1:

    (1) Subject to the requirements of this rule and rule 4-7.7,
the name of the lawyer or law firm, a listing of lawyers
associated with the firm, office addresses and telephone numbers,
office and telephone service hours, and a designation such as
"attorney" or "law firm."

    (2) Technical and professional licenses granted by the state
or other recognized licensing authorities.

    (4) Foreign language ability.

    (5) Fields of law in which the lawyer is certified or
designated, subject to the requirements of rule 4-7.6.

    (6) Prepaid or group legal service plans in which the lawyer
participates.

    (7) Acceptance of credit cards.

    (8) Fee for initial consultation and fee schedule, subject
to the requirements of paragraphs (h) and (i) of this rule.

    (9) A listing of the name and geographic location of a
lawyer or law firm as a sponsor of a public service announcement
or charitable, civic or community program or event.

    (o) Nothing in this rule prohibits a lawyer or law firm from
permitting the inclusion in law lists and law directories
intended primarily for the use of the legal profession of such
information as has traditionally been included in these
publications.

    (p) A copy or recording of an advertisement or written or
recorded communication shall be submitted to the Standing
Committee on Advertising in accordance with the requirements of
rule 4-7.5, and the lawyer shall retain a copy or recording for
three years after its last dissemination along with a record of
when and where it was used.

    (q) A lawyer shall not give anything of value to a person
for recommending the lawyer's services, except that a lawyer may
pay the reasonable cost of advertising or written or recorded
communication permitted by these rules and may pay the usual
charges of lawyer referral service or other legal service
organization.