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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-08-16
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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.
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 dire