The current Preamble is the same as the Model Rule Preamble before recent Ethics 2000 amendments. The Joint Committee proposes changes to the Preamble to follow the current Model Rule Preamble. The more notable changes are summarized. The reference in Comment [2] to intermediary is deleted as a consequence of the proposed repeal of Rule 2.2 relating to lawyers serving as intermediaries. New Comment [3] discusses the lawyer's role as third-party neutral, which is addressed by proposed changes to Rule 1.12 and by proposed new Rule 2.3. The new Comment also reminds lawyers that there are other rules that apply to lawyers when they are not active in the practice of law and to practicing lawyers when they are acting in a nonprofessional capacity.
There are substantial similarities between the current Scope section and the Model Rule Scope section. The Joint Committee proposes several changes to reflect Ethics 2000 revisions to the Model Rule Scope.
The proposed change in Comment [1] clarifies what is meant by "professional discretion". The additional language in Comment [2] reflects additions in various Comments which are considered helpful to practicing lawyers, particularly where obligations imposed by different laws may be more onerous than those imposed by the Rules. The reference to Rule 1.18 is included in Comment [3] to draw attention to the fact that there are duties under the Rules that attach before the formation of the lawyer-client relationship. Proposed changes in Comment [4] discuss the relationship of rule compliance or violation to causes of action and determining breaches of standards of conduct.
The Joint Committee proposes following the Model Rule approach in setting out in a separate Rule regularly used important terms and their definitions. The proposed changes incorporate several Model Rule definitions into existing definitions that follow the Model Rule.
A definition of "consent in writing" is provided which is based on the Model Rule definition of "confirmed in writing". The Model Rule definition is linked to the central role played in the Model Rules of the concept of "informed consent", which the Joint Committee declined to follow. The Model Rules uniformly replaced "consent after consultation" with "gives informed consent". The informed consent requirement was accompanied by a requirement that the consent be confirmed in writing. While the Model Rule drafter's explanation of the shift to informed consent suggests no substantive change was intended, the Joint Committee concluded there was a risk that the informed consent concept applied in medical malpractice litigation may be imported into matters governed by the Rules. Consequently, the Joint Committee elected alternatively to adopt a writing requirement in certain circumstances with respect to consent and consultation by the client.
Proposed changes to "firm" or "law firm" follow the proposed changes to the Comment to Rule 1.10. The reference to "other association authorized to practice law" is added in the definition to encompass lawyers practicing in limited liability entities. The reference in Comment [3] of this new Terminology rule to "including government" clarifies that legal departments of governmental entities are included within the definition of "firm".
The Joint Committee proposes adding a definition of "jurisdiction" in paragraph (f) for purposes of assisting in addressing multijurisdictional practice issues.
The definition of "matter", as set out in current Rule 1.7, is relocated with slight modifications to paragraph (i) and limited in application to Rules 1.7 through 1.12.
A definition of "screened" is included, as it is in the Model Rule, for purposes of Rules 1.11, 1.12, and 1.18. The concept prevents the imputation of conflicts of interest in certain situations when the personally disqualified lawyer is "screened" from any participation in the matter.
Given the various writing requirements in the Rules, paragraph (q) defines "writing" and "written" and includes tangible and electronic records.
The Joint Committee proposes following the Model Rule, with differences related to those noted above, in incorporating Comment provisions regarding definitions of consent in writing, firm, fraud, and screened.
The Joint Committee does not propose any changes to the black-letter Rule as the Rule and the Model Rule are the same.
The Joint Committee proposes minor changes to the Comment to incorporate Model Rule Comment language.
RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
The current Rule is the same as the Model Rule before recent Ethics 2000 revisions. The Joint Committee proposes changes to the black-letter Rule, including the title, which would follow the current Model Rule.
Proposed changes to paragraph (a) concerning objectives of representation relocate the phrase "subject to paragraphs (c) and (d)" to clarify that all of the actions a lawyer may take under paragraph (a) are subject to the restrictions under paragraph (d) and some of them may be subject to the limitation in paragraph (c). The reference to Rule 1.14 is included to reflect that the lawyer's duty to communicate with the client should be addressed in that rule, rather than Rule 1.2. The changes also clarify that a lawyer need not always consult in order to acquire authority to act for the client, but may take action as impliedly authorized to carry out the representation.
Proposed changes to paragraph (c), in substituting "scope" for "objectives" regarding representation reflect that only the client can limit the client's objectives, while the scope of representation may be limited by the lawyer.
Paragraph (e) is deleted as it is relocated to Rule 1.4(a)(5).
The Joint Committee proposes changes to the Comment to follow the Model Rule Comment.
The current rule and the Model Rule are identical. The Joint Committee does not propose any changes to the black-letter Rule.
The current Comment is the same as the Model Rule Comment before recent Ethics 2000 revisions. The Joint Committee proposes changes to the Comment to follow the current Model Rule Comment.
The Joint Committee proposes changes to the black-letter rule to follow the Model Rule with the exception of retaining the current Rule's direction that a lawyer shall "make reasonable efforts" to keep the client reasonably informed [paragraph (a)(3)].
The Joint Committee proposes only minor changes to Comment [3] to include reference to a person with limited capacity, rather than suffering from mental disability. The "limited capacity" reference is derived from proposed changes to Rule 1.14.
The Joint Committee proposes changes to the black-letter Rule to follow, in part, the Model Rule.
The proposed change to paragraph (a) shifts the focus from requiring a reasonable fee to prohibiting an unreasonable fee. The change also prohibits unreasonable amounts for expenses.
Proposed changes to paragraph (b) follow the Model Rule in including expenses for which the client will be responsible as a matter that must be communicated to the client. Fee and expense information should preferably be communicated in writing.
Proposed changes to paragraph (c) require that a contingent fee agreement must be signed by the client and must identify any expenses for which the client may be liable, whether or not the client is the prevailing party. Language is also added requiring an itemization of expenses.
The Joint Committee proposes changes to the Comment to follow the Model Rule Comment. Notable changes are summarized. New Comment [1] introduces paragraph (a) and explains that the factors set out in the paragraph are not exclusive and that lawyers may properly charge for services performed or incurred in-house. New Comment [3] confirms that contingent fees are subject to the reasonableness standard of paragraph (a). It refers to applicable law, which may impose limitations on contingent fees or require a lawyer to offer clients an alternative basis for the fee. Proposed changes to Comment [4] replace the "special scrutiny" provision concerning fees paid in property with a cross-reference to the requirements of Rule 1.8(a), which addresses business transactions with a client when a fee is to paid in property.
RULE 1.6 CONFIDENTIALITY OF INFORMATION
The Joint Committee proposes changes to the black-letter Rule to incorporate most of the current Model Rule regarding disclosure of information relating to the representation of a client.
Proposed changes to paragraph (a) prohibit disclosure of information unless the client consents, disclosure is impliedly authorized in order to carry out the representation, or the disclosure is required by new paragraph (b) or permitted by new paragraph (c). Current paragraphs (b) and (c) are relocated to paragraph (a).
Proposed paragraph (b) retains the current required disclosure of information. The provision follows the Model Rule language, however, of disclosure if considered reasonably necessary to prevent reasonably certain, rather than imminent, death or substantial bodily harm.
New paragraph (c)(1) departs from the current Rule in permitting disclosure to prevent the commission of a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another. In following the Model Rule, the changes delete the current language regarding criminal or fraudulent acts that are reasonably believed to likely result in non-imminent death or substantial bodily harm. This disclosure, however, is generally addressed in new paragraph (b). New paragraph (c)(2) permits disclosure to prevent, mitigate, or rectify substantial injury to the financial interests or property of another, a ground for disclosure currently addressed in part by paragraph (f). New paragraph (c)(3) permits disclosure to secure legal advice about the lawyer's compliance with the Rules.
The Joint Committee proposes several changes to the Comment to follow the Model Rule Comment as the proposed black-letter changes also follow the Model Rule, with the noted exception regarding mandatory disclosure. Comment [6] explains application of the mandatory disclosure provision. Language is also included to aid in determining when death or substantial bodily harm is "reasonably certain" to occur.
RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE
The Joint Committee proposes relatively minor changes to the black-letter Rule. A writing requirement is added to paragraphs (c)(2) and (d) regarding, respectively, client consent concerning representation of a client if representation may be adversely affected by competing interests and client consent to use of information to the disadvantage of the client. Paragraph (e) regarding the definition of "matter" is deleted and relocated to new Rule 1.0.
The Joint Committee proposes several changes to the Comment to incorporate Model Rule Comment provisions considered useful in assessing conflict situations. The changes to the Comment are intended to clearly describe how a conflict is analyzed. For purposes of applying the Rule, Comment [3] provides an explanation of what constitutes an adverse effect that would preclude representation of a client. Comment [4] clearly articulates the steps a lawyer should take in resolving a conflict of interest problem. Comments [11] and [12] offer specific explanations concerning the role and obligations of government lawyers. The balance of the proposed changes to the Comment reflect the Model Rule Comment or adaptations of the those Comment provisions to further explain the application of the current black-letter rule, as modified.
RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS
The Joint Committee proposes changes to the black-letter Rule to incorporate certain Model Rule provisions and to generally follow the Model Rule structure. Significant portions of the current Rule are retained.
In keeping with the Joint Committee's conclusion not to follow the Model Rule's informed consent approach, a writing requirement is included at several points in the Rule: paragraph (a)(2), paragraph (b), and paragraph (g). The Joint Committee declined to propose a writing requirement for client consent under paragraph (f), which governs accepting compensation for representing a client from someone other than the client.
Proposed changes to paragraph (c) incorporate the Model Rule's definition of related persons for purposes of the prohibition against a lawyer preparing an instrument giving the lawyer or a person related to the lawyer a substantial gift from the client.
Paragraph (h) is modified to generally follow the Model Rule structure and to incorporate the reference to "potential claims" in paragraph (h)(2). The additional language clarifies that the Rule applies even when the client has not actually asserted a claim. The opening sentences of current paragraph (i) are relocated to paragraph (h)(1) and the remainder of paragraph (i) is deleted to follow the Model Rule.
New paragraph (i) generally prohibiting the acquiring of a proprietary interest in the cause of action is added to follow the Model Rule with the exception of including a reference to Rule 1.5 in paragraph (i)(2). The Rule reference is considered more useful than the Model Rule's general reference to a "reasonable" contingent fee.
Current paragraph (j) regarding the practice of law by a part-time prosecutor or judge is retained and relocated to paragraph (k).
New paragraph (j) incorporates the Model Rule provision generally prohibiting sexual relations with a client.
The Joint Committee proposes several changes to conform the Comment to the current Model Rule Comment. Comment [20] is retained in that it is related to new paragraph (k), a provision unique to the current Rule in addressing the practice of law by part-time prosecutors or judges.
RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT
The Joint Committee proposes limited changes to the black-letter Rule.
Paragraph (b) is modified to include a writing requirement for a former client's consent to representation in a substantially related matter in which the person's interests are adverse to those of the former client.
Paragraph (c) is modified to permit a lawyer's use of information relating to the representation if the information has become generally known. This provision is relocated from Rule 1.6(h).
The Joint Committee proposes changes to the Comment to generally align the Comment with the Model Rule Comment.
RULE 1.10 IMPUTED DISQUALIFICATION: GENERAL RULE
The Joint Committee proposes two notable changes to the black-letter Rule.
Paragraph (a) is modified to incorporate the Model Rule language providing an exception from imputed conflicts based on personal interest. The language would eliminate imputation in the case of conflicts between a lawyer's own personal interest and the interest of a client. The Joint Committee also proposes adding a definition of "personal interest" that is adapted from the definition of personal interest set out in The Law and Ethics of Lawyering, 4th edition (p. 426), by Geoffrey Hazard.
Paragraph (b) is amended to more clearly articulate circumstances under which lawyers in a firm may represent a client if another lawyer in the firm is prohibited under Rule 1.9 from representing the client.
Paragraph (c)(3) is modified to include a reference to "has had access to" material information with respect to the prohibition against a firm representing a person if any lawyer in the firm has information protected by Rule 1.6. The proposed change responds to the impact of Heringer v. Haskell, 536 N.W.2d 362 (N.D.1995), which concluded that the disqualification under paragraph (c)(3) applied to situations in which a lawyer who has left a firm not only had information protected by the Rule, but also had access to the information. The language added to paragraph (c)(3) would explicitly address this situation.
Paragraph (d) is modified to include a writing requirement through which a client may consent to waive disqualification from representation if the representation does not involve a claim by one client against another client represented by the same firm in the same litigation or other proceeding.
The Joint Committee proposes changes to the Comment to conform to the black-letter Rule changes. Additionally, Comment [5] is added to complement the personal interest provisions included in paragraph (a). Comment [9] is modified to reflect the change to paragraph (c)(3). The definition of "matter" is deleted as it is now addressed in Rule 1.0.
RULE 1.11 SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT
The Joint Committee proposes changes to the black-letter Rule to follow the Model Rule.
The proposed change to paragraph (a)(1) clarifies that a former government lawyer is subject to Rule 1.9(c) regarding confidentiality of information relating to the former representation of a government client. Paragraph (a)(2) requires consent from the government agency before a former government lawyer may represent a client in connection with a matter in which the lawyer participated as a public officer or employee.
Proposed changes to paragraph (b) clarify that conflicts under paragraph (a), including former client conflicts, are not imputed to other associated lawyers when the individual lawyer is properly screened and written notice is promptly given to the appropriate government agency.
Proposed changes to paragraph (c) generally preclude representation of a private client with adverse interests to a person about whom a lawyer has received confidential government information while a public officer or employee. A definition of "confidential government information" is provided. A screening provision is also included.
Proposed changes to paragraph (d) address situations in which a private lawyer moves to government employment. The language provides that a lawyer serving as a current public officer or employee is subject to Rules 1.7 and 1.9 and cannot participate in a matter in which the lawyer participated while in private practice, unless the government agency consents. Limitations are placed on the lawyer's ability to negotiate private employment with any person involved as a party or lawyer in a matter in which the lawyer participated. A definition of "matter" is included in paragraph (e).
The Joint Committee proposes changes to the Comment to follow the Model Rule Comment.
The Joint Committee proposes changes to the black-letter Rule to follow the Model Rule, with one exception, in broadening application to include arbitrators, mediators, and third-party neutrals.
The proposed changes extend the listing of affected positions to paragraph (b), while the Model Rule does not. Paragraph (a) incorporates a writing requirement for party consent to representation. The changes to paragraph (c)(1) and (2) regarding timely screening and notice reflect the Model Rule. Paragraph (d) is retained unchanged as it is the same as the Model Rule provision.
The Joint Committee proposes changes to the Comment to conform to the Model Rule. Comment [2] explains the expanded application of paragraph (a) to arbitrators, mediators, and third-party neutrals. Comment [3] discusses the rationale for imputing the conflicts of a personally disqualified lawyer unless there is compliance with paragraph (c). Comment [4] addresses the requirements imposed by paragraph (c) and cross-references the definition of screening in Rule 1.0. Comment [5] discusses requirements imposed under paragraph (c)(2).
RULE 1.13 ORGANIZATION AS CLIENT
The Joint Committee proposes changes to the black-letter Rule to incorporate post-Ethics 2000 changes to the Model Rule and, as a result, align the current Rule with the Model Rule. The Rule is intended to guide lawyers in the proper handling of their role in the lawyer-client relationship when the client is an entity, rather than a person. The post-Ethics 2000 changes to the Model Rule were in response to the Sarbanes-Oxley Act enacted in 2002 which imposed greater obligations on lawyers to report certain violations of their corporate clients. These "up the ladder" reporting requirements or considerations are addressed in the Comment to the current Rule.
The proposed changes to paragraph (b) incorporate in the black-letter Rule the Model Rule's requirement that a lawyer report an employer's misconduct "up the ladder".
Language added to paragraph (c) also permits a lawyer to reveal information relating to representation of the organization if the highest authority in the organization does not address a violation of law or an obligation to the organization.
Proposed changes to paragraph (d) provide an exception to the permitted revelation under paragraph (c). Changes to paragraph (e) require the lawyer to take reasonable steps to inform the highest authority in the organization if the lawyer reasonably believes the lawyer has been discharged for actions taken under paragraph (b) or (c).
The Joint Committee proposes changes to the Comment to follow the Model Rule Comment.
RULE 1.14 CLIENT WITH LIMITED CAPACITY
The Joint Committee proposes changes to the black-letter Rule to substitute the Model Rule, with one exception. The Model Rule refers to clients with "diminished capacity". The Joint Committee concluded "limited capacity" is a more appropriate reference since the focus of the rule is representation of clients whose decision-making capacity is limited in such a way that the lawyer may be required to seek some form of assistance for the client. Additionally, "diminished capacity" has a settled criminal law meaning and application that is inapt in the context of the Rule's purpose.
The Joint Committee proposes changes to the Comment to conform to the Model Rule Comment, with changed references to "limited capacity".
RULE 1.15 SAFEKEEPING PROPERTY
Paragraphs (a) through (e) of the current Rule are essentially similar to the Model Rule before recent Ethics 2000 revisions. The Joint Committee proposes changes to the black-letter provisions to follow the Model Rule as modified by the Ethics 2000 changes.
New paragraph (b) permits a lawyer to deposit funds in a trust account for the purpose of paying bank service charges. Language is also added concerning deposit of funds for fees associated with credit card payments or wire transfer fees.
New paragraph (c) provides guidance to lawyers on how to handle advance deposits of fees and expenses.
Proposed changes to paragraph (e) clarify that conflicting claims to funds in a trust account may involve third parties and provide that funds not in dispute may not be held while the dispute is resolved.
New paragraphs (f) through (i) retain the current Rule's provisions pertaining to IOLTA.
The Joint Committee proposes changes to the Comment to conform to the Model Rule Comment, with the exception of new Comment [6] which directs lawyers to the IOLTA Committee for guidance regarding the administration of trust accounts.
RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
The Joint Committee proposes limited changes to the black-letter Rule. The current Rule is, in substantial part, similar to the Model Rule.
The reference in paragraph (b) to withdrawal without adverse effect is relocated to subparagraph (1).
Paragraph (b)(4) is modified to permit withdrawal from representation if the lawyer has a fundamental disagreement with the objectives sought by the client.
Paragraph (c) is modified to require refunding any advance payment for an expense that has not been incurred.
In light of the limited proposed changes to the current Rule, the Joint Committee proposes limited changes to the Comment based on the Model Rule Comment. Comment [1] includes language addressing the question of when a representation is completed and cross-referencing other Rules, including those in which services are limited or intended to be short-term in nature. Language added to Comment [3] further explains the obligation of a lawyer to continue representation if withdrawal is denied. Proposed language in Comment [4] includes references to Rules 1.6 and 3.3 regarding any exchange with the court requesting an explanation for the lawyer's request to withdraw. Language added to Comment [8] tracks the proposed change to paragraph (b)(4). Proposed language in Comment [10] directs lawyers to Rule 1.19 regarding disposition of files and papers in the event of withdrawal from representation.
RULE 1.17 SALE OF A LAW PRACTICE
The current Rule is substantially similar to the Model Rule and the Joint Committee does not propose any changes to the black-letter Rule.
The Joint Committee proposes changes to the Comment to incorporate language from the Model Rule Comment that is not inconsistent with the current Rule.
RULE 1.18 DUTIES TO POTENTIAL CLIENT (New Rule)
The current Rule mirrors Rule 1.13 except that it pertains to government entities, rather than organizations, as clients. There is no counterpart to current rule 1.18 in the Model Rules. The Joint Committee proposes that current Rule 1.18 be replaced with Model Rule 1.18 in its entirety, with some noted modifications. The subject of the Model Rule is duties to "prospective clients". The Joint Committee proposes replacing that reference throughout with "potential client" to avoid confusion with the use of "prospective client" in Rule 7.3, which is explained in Comment [1].
Paragraphs (b), (c), and (d) are modified from the Model Rule to refer to receipt, use, or revelation of "significantly harmful" information, rather than "disqualifying" information as used in the Model Rule. This change resulted from concerns expressed by the SBAND Board of Governors regarding the use of the disqualifying reference. Paragraph (c) was also modified from its Model Rule construction to delete a screening requirement concerning permissible representation if the lawyer has received significantly harmful information regarding a client.
The Joint Committee does not propose any changes to the black-letter rule as the North Dakota Rule and the Model Rule are identical.
The Joint Committee proposes only minor changes to the Comment: essentially grammatical changes in Comment [2] and the addition in Comment [5] of language regarding offering a client information about other forms of dispute resolution that may be alternatives to litigation. The additional language reflects the Model Rule Comment.
In keeping with the Model Rule approach, the Joint Committee proposes the repeal of current Rule 2.2. Issues concerning common representation are discussed in the Comment to Rule 1.7 - the approach followed by the Model Rule.
NEW RULE 2.2 EVALUATION FOR USE BY THIRD PERSONS
In light of the proposed repeal of Rule 2.2, the Joint Committee proposes that current Rule 2.3 be renumbered as Rule 2.2. Additionally, the Joint Committee proposes changes to paragraph (a) that are essentially structural in nature, and changes to paragraph (b) which clarify when a lawyer may not provide an evaluation of a matter without client consent. These changes reflect the Model Rule. The Joint Committee also proposes including a writing requirement with respect to the client's consent after consultation to the evaluation.
The Joint Committee proposes minor changes to the Comment, all reflective of the Model Rule Comment. Language is added to Comment [1] regarding implied authorization for performance of an evaluation and language is added to Comment [5] explaining the prohibition against making a false statement of material fact or law in providing an evaluation.
NEW RULE 2.3 LAWYER SERVING AS THIRD-PARTY NEUTRAL
The Joint Committee proposes the adoption of new Rule 2.3, which is set out in the Model Rules as Rule 2.4. New Rule 2.3, in reflecting the Model Rule, is designed to promote understanding of the lawyer-neutral's role by parties to dispute resolution. The Rule defines "third-party neutral" in paragraph (a) and in paragraph (b) informs the parties of the nature of the lawyer's role.
The various paragraphs of the proposed Comment describe dispute-resolution processes, describe the role of a third-party neutral, refer to other law and ethics codes that may apply, explain the purpose of the advisory in paragraph (b), and draw attention to conflict issues that may arise and which are governed by Rule 1.12.
RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS
The current rule and the Model Rule are nearly identical. The Joint Committee proposes only the addition in the black-letter rule of a reference to "in law and fact", which would reflect the Model Rule. This change only makes explicit the requirement that a claim must have a non-frivolous basis in law and fact. The Joint Committee also proposes adding a reference to "commitment" as the civil counterpart to incarceration and regarding which a lawyer may defend to the extent necessary to ensure every element of the case is established.
The Joint Committee proposes changes to the Comment which would result in the Comment fully reflecting, with one exception, the Model Rule Comment. Comment [4], which is contained in the current Comment, is retained as additional guidance for lawyers concerning other rules and statutes pertaining to lawyer duties.
RULE 3.2 EXPEDITING LITIGATION
The Joint Committee does not propose any changes to the black-letter rule. The current Rule and the Model Rule are identical.
The Joint Committee proposes retention of Comment [1] as useful explanation of the Rule's purpose. Proposed changes to Comment [2] reflect the Model Rule Comment.
RULE 3.3 CANDOR TOWARD THE TRIBUNAL
The Rule governs a lawyer's obligation of candor to the tribunal with respect to testimony given and actions taken by the client and other witnesses. The Joint Committee proposes a number of changes to the black-letter rule to follow the Model Rule approach regarding candor toward the tribunal. However, the Joint Committee proposes no change to provisions upon which the current Rule and Model Rule differ most significantly. Under the current Rule [paragraph (d)], if a lawyer has offered testimony from a client and later learns the testimony is false, and the lawyer fails to convince the client to consent to disclosure, the lawyer must attempt to withdraw without disclosure. If withdrawal is refused by the court, the lawyer must continue in the representation. The Model Rule, on the other hand, provides that if false testimony from anyone, including the client, is offered the lawyer is required to take reasonable remedial measures, including, if necessary, disclosure. The current Rule's approach reflects the Supreme Court's early decision in Grievance Comm'n v. Malloy, 248 N.W.2d 43 (N.D.1976). The Joint Committee discussed at length whether to follow the Model Rule exclusively and abandon the Malloy approach. The Joint Committee concluded that while nearly all of the proposed changes to the Rule would reflect the Model Rule, the Malloy approach should be retained. The relevant language is included in proposed paragraph (a)(3). The Joint Committee also proposes additional language in paragraph (a)(3) to provide that a lawyer may not use or argue the client's false testimony. The remainder of the proposed changes, additions and deletions, to the black-letter Rule reflect the Model Rule.
In light of the proposed changes to the black-letter Rule, the Joint Committee proposes numerous changes to the Comment which reflect long-existing Model Rule Comment language in some areas, but most changes reflect revisions to the Model Rule Comment made as part of the ABA's Ethics 2000 review. Language specific to the Malloy approach is contained in Comment [10].
RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
Current Rule 3.4 is identical to the Model Rule except for additional language in paragraph (a) of the Model Rule regarding a prohibition against a lawyer counseling or assisting another person in committing an act otherwise prohibited by paragraph (a). This subject matter is addressed in Rule 8.4(a). The Joint Committee, therefore, does not propose any changes to the black-letter rule.
The Joint Committee proposes minor changes to Comments [1] and [2], which will conform the Comment to the Model Rule Comment.
RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
The Joint Committee proposes changes to the black-letter rule to follow the Model Rule. The prohibition against ex parte communications in current paragraph (a) is relocated to paragraph (b), with the retention from paragraph (b) of the reference to communicating about a "pending or impending proceeding". Paragraph (c) describes situations in which communication with a juror or prospective juror are prohibited.
The Joint Committee proposes additional language for the Comment regarding the Rule's ex parte provision (Comment[2]), communication with a juror or prospective juror (Comment [3]), and the duty to refrain from disruptive conduct (Comment [5]). These changes reflect the Model Rule Comment.
The Joint Committee proposes changes that would align the black-letter Rule with the Model Rule. Paragraph (a) is modified to provide that the assessment of the likelihood that an extrajudicial statement will be disseminated by public means is judged from the perspective of a reasonable lawyer ("lawyer knows or reasonably should know") rather than a reasonable "person". Paragraph (a) is additionally modified to prohibit an extrajudicial statement if the lawyer knows or reasonably should know the statement has a "substantial likelihood" of materially prejudicing the proceeding. The current Rule's prohibition hinges on whether the statement will create a "serious and imminent threat" of material prejudice. Proposed paragraphs (b) and (c) are from the Model Rule and set out the kinds of extrajudicial statements a lawyer is permitted to make during a trial. Paragraph (d), also from the Model Rule, extends the prohibition under paragraph (a) to lawyers associated in a firm or government agency with the affected lawyer.
The Joint Committee proposes changes to the Comment to follow the Model Rule Comment.
The Joint Committee proposes essentially minor changes to the black-letter Rule to reflect the Model Rule.
The Joint Committee proposes changes to the Comment that retain some current language that is not inconsistent with the Model Rule Comment, but otherwise incorporate language from the Model Rule Comment. In Comments [2], [3], and [4] references to the tribunal are included to clarify that the prohibition in paragraph (a) of the Rule is for the protection of the tribunal as well as the parties. New Comment [5] explains why paragraph (b) of the Rule permits a lawyer to act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness barring any conflicts of interest. Proposed changes to Comment [6] include language to alert lawyers to the kinds of conflicts that may arise. New Comment [7] discusses various disqualifications that may result if the lawyer-witness is precluded from serving as an advocate under applicable rules.
RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The Joint Committee proposes changes to the black-letter Rule which, with one exception, will align the Rule with the Model Rule. The Joint Committee concluded the current requirement in paragraph (d) that the prosecutor disclose information "at the earliest practical time" is preferable to the Model Rule's direction to make "timely" disclosure. Paragraph (e), from the Model Rule, articulates circumstances in which a prosecutor is permitted to subpoena a lawyer in a grand jury or other criminal proceeding to present evidence. Proposed changes to paragraph (f) generally prohibit the prosecutor from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused.
The Joint Committee proposes changes to the Comment to reflect the Model Rule Comment.
RULE 3.9 ADVOCATE IN NONADJUDICATIVE PROCEEDING
The Joint Committee proposes minor changes to the black-letter Rule to reflect the Model Rule. Language unique to the current Rule concerning ex parte communications with members of a legislative body is retained.
The Joint Committee proposes changes to the Comment to reflect the Model Rule Comment.
RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
The Joint Committee proposes no changes to Rule 4.1. The current Rule prohibits, as does the Model Rule, knowing falsehood in a statement made by a lawyer to a third person while the lawyer is representing a client. However, the Model Rule also prohibits the failure to disclose a material fact. The Joint Committee concluded materiality should not be, as it is not now, a factor in the prohibition against knowingly making a false statement of fact or law.
In light of no changes being proposed for the black-letter Rule, the Joint Committee proposes only minor additions to the Comment. Language is added further explaining that misrepresentation can also result from partially true but misleading statements or omissions. Language is also added concerning application of Rule 8.4 to statements by a lawyer other than in the course of representing a client. These additions reflect Model Rule Comment language but are consistent with the current black-letter Rule.
RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
The Joint Committee proposes only minor changes to the black-letter Rule to reflect the Model Rule.
The Joint Committee proposes several changes to the Comment to reflect the Model Rule Comment. Particularly, Comment [1] states the purpose of the Rule and emphasizes the Rule contributes to the proper functioning of the legal system by protecting clients represented by a lawyer. Language in Comment [2] clarifies that the Rule does not preclude communicating with a represented person seeking a second opinion. Changes to Comment [3] clarify that communications authorized by law may include constitutionally protected communications with the government. The added language also emphasizes the extra obligation imposed when communicating with an accused in a criminal matter. Comment [4] explains two circumstances in which a lawyer may seek a court order authorizing a communication: where it is uncertain the communication is permitted by the rule, and where the communication is prohibited but there are exceptional circumstances. Comment [6] is modified to more clearly identify the constituents of a represented organization with whom a lawyer may not communicate without consent of the organization's lawyer. New Comment [8] makes clear that the Rule's protections may not be waived by the client. The Comment additionally reminds lawyers that they must terminate communication once it is learned the person is represented by counsel in a matter to which the communication relates.
RULE 4.3 DEALING WITH UNREPRESENTED PERSONS
The current Rule is the same as the first two sentences of the Model Rule. The Joint Committee proposes the addition of the last sentence from the Model Rule. The added language prohibits the giving of legal advice to an unrepresented person if the lawyer knows or reasonably should know there is a possibility of there being a conflict between the lawyer's client and the unrepresented person.
As the black-letter Rule, with the added language, would follow the Model Rule, the Joint Committee proposes revisions to the Comment to also follow the Model Rule Comment. Language in Comment [1] is deleted as the general substance has been elevated to the black-letter Rule. Language is added to Comment [1] to indicate that, in order to avoid misunderstanding, the lawyer will typically need to explain that the lawyer's client has interests opposed to those of the unrepresented person. Comment [2] is added to give guidance regarding what constitutes impermissible advice-giving.
RULE 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
The Joint Committee proposes the minor addition of a reference to delay in the black-letter Rule, which would follow the Model Rule.
The Joint Committee proposes a minor change to the Comment which also follows the Model Rule Comment.
NEW RULE 4.5 INADVERTENT TRANSMISSION
The Joint Committee proposes new Rule 4.5 governing circumstances in which a lawyer receives documents relating to representation of the lawyer's client which have been inadvertently sent. The new Rule is based in part on paragraph (b) of Model Rule 4.4. Particularly, the opening language of paragraph (a), and subparagraph (1), of the new Rule restate paragraph (b) of Model Rule 4.4. The Joint Committee concluded the Model Rule provision provided insufficient guidance with respect to what constitutes an inadvertently sent document and what the lawyer should do upon receiving the document. The Joint Committee also concluded provisions on inadvertent transmissions would be better placed in a separate rule than as part of Rule 4.4. In addition to promptly notifying the sender as required by paragraph (a)(1), the lawyer would be required by paragraph (a)(2) to comply within a reasonable time with a request for return of the document, provided the request is accompanied by a promise of reimbursement of any out-of-pocket expenses. Paragraph (b) defines an inadvertently sent document as one the sending of which was a deliberate though mistaken act or resulted from the ignorance, negligence, or inattention of the sender or sender's agent. Paragraph (d) shelters the lawyer receiving the inadvertently sent document from alleged violations of Rule 1.2 or 1.4 if the lawyer does not communicate to or consult with the client about the receipt or return of the document.
Comments [1] and [2], with some modifications, are based upon the related Comment language in Model Rule 4.4.
RULE 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY ATTORNEYS (new title from Model Rule)
Rule 5.1 governs a lawyer's responsibilities for the actions of other lawyers in a law firm. The general approach under the current Rule is that every lawyer in the firm has some responsibility or potential responsibility for actions of other lawyers. The Joint Committee proposes changes to the black-letter Rule to follow the Model Rule, which places the responsibility on lawyers who are partners or who are in a similar supervisory or managerial role. Proposed changes to paragraph (a) reflect this change in focus. Proposed changes to paragraph (c) further identify those circumstances under which a lawyer is otherwise responsible for another lawyer's violation of the rules.
The Joint Committee proposes several changes to the Comment to incorporate language from and delete language inconsistent with the Model Rule Comment.
RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
In light of the proposed changes to Rule 5.1, the Joint Committee proposes the addition of paragraph (b) to black-letter Rule to follow the Model Rule. The added language provides that a subordinate lawyer does not violate the rules if the lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. The proposed change would result in the black-letter Rule being fully the same as the Model Rule.
The Joint Committee proposes changes to the Comment to incorporate language from and delete language inconsistent with the Model Rule Comment.
RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS
Consistent with the proposed changes to Rules 5.1 and 5.2, the Joint Committee proposes changes to the black-letter Rule to require that lawyers with managerial authority within a firm make reasonable efforts to ensure that nonlawyers act in a manner compatible with the rules. Language similar to that added in Rule 5.1(c) is added to paragraph (c) to further identify circumstances in which a lawyer is responsible for the conduct of a nonlawyer.
The Joint Committee does not propose any changes to Comment [1], which is the same as the Model Rule Comment provision. Comment [2] is added from the Model Rule Comment and distinguishes the responsibility to create a system to ensure rule compliance [paragraph (a)] from the supervisory responsibility governed by paragraph (b) and the personal responsibility addressed in paragraph (c). The Joint Committee proposes only minor changes to the remainder of the Comment.
RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
The Joint Committee proposes changes to the black-letter Rule to follow the Model Rule. Paragraph (a)(4) is added to allow a lawyer to share fees with a non-profit organization that employs or retains the lawyer. Language is added to paragraph (d)(2) to describe an additional situation in which a lawyer must not practice with or in the form of a professional corporation when a nonlawyer is involved. The language is more general in expression and expands the prohibition to include nonlawyers who occupy positions with responsibilities similar to those of corporate directors or officers.
The Joint Committee proposes the addition of Comment [2] to follow the Model Rule Comment. Comment [1] is the same as Model Rule Comment [1].
RULE 5.5 UNAUTHORIZED PRACTICE OF LAW
The Joint Committee does not propose any changes to the Rule, which was recently amended as part of the multijurisdictional practice rule changes.
RULE 5.6 RESTRICTIONS ON RIGHT TO PRACTICE
The Joint Committee proposes minor changes to the black-letter Rule to conform the Rule to the Model Rule. Language is added to paragraph (a) to include additional kinds of agreements that are prohibited under the rule, i.e., shareholders, operating, and other similar kinds of agreements. The reference in paragraph (b) to "controversy between private parties" is changed to "client controversy". This latter change clarifies that the Rule applies to settlements not only between private parties but also, for example, between a private party and the government. The reference to "retirement" is changed to "such termination" to encompass, as the Rule generally does, different kinds of terminations.
The Joint Committee proposes changes to Comment [1] in accordance with the Model Rule Comment. Replacing "partners and associates" with "lawyers" recognizes that lawyers associate together in organizations other than traditional law firm partnerships.
RULE 5.7 RESPONSIBILITIES REGARDING LAW-RELATED SERVICES
The current Rule and the Model Rule are nearly identical and the Joint Committee proposes minor changes to fully follow the Model Rule.
The Joint Committee proposes changes to the Comment to follow the Model Rule Comment. Language added to Comment [1] clarifies that a lawyer can provide law-related services in circumstances that are distinct from the lawyer's provision of legal services. Language added to Comment [2] clarifies that paragraph (a)(2) of the Rule applies in all cases in which provision of law-related services is distinct from the provision of legal services within the meaning of paragraph (a)(1), regardless of whether the law-related services are provided directly by the lawyer, the lawyer's firm, or by a separate entity controlled by the lawyer or law firm.
RULE 6.1 PRO BONO PUBLICO SERVICES
The Joint Committee does not propose any changes to the black-letter Rule. The Joint Committee reviewed several issues regarding the Rule and its Model Rule counterpart and concluded that, in light of the current practice and the history of the Rule, changes are not warranted.
The Joint Committee does propose a minor change adding Comment [4], from the Model Rule Comment, to emphasize that law firms should act reasonably to enable and encourage all lawyers in the firm to provide pro bono legal services.
RULE 6.2 APPOINTMENT BY A TRIBUNAL
The Joint Committee proposes only minor structural changes to the black-letter Rule. There are no proposed changes to the Comment language.
RULE 6.3 MEMBERSHIP IN LEGAL SERVICES ORGANIZATION
The current Rule and the Model Rule are identical except for the references to "action" in Model Rule paragraphs (a) and (b), which the Joint Committee proposes adding to the current Rule.
The Joint Committee does not propose any changes to the Comment language.
RULE 6.4 REFORM ACTIVITIES AFFECTING CLIENT INTERESTS
The Joint Committee does not propose any changes to the Rule or Comment language.
RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS
The current Rule and the Model Rule are identical. The Joint Committee does not propose and changes to the Rule.
The Joint Committee proposes a minor change to Comments [1] and [3] to fully follow the Model Rule Comment.
RULE 8.2 JUDICIAL AND LEGAL OFFICIALS
The Joint Committee does not propose any changes to the language of the Rule or Comment.
RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
The Joint Committee proposes minor changes to paragraphs (a) and (b) to substitute "who knows" for "having knowledge", which follows the Model Rule construction.
The Joint Committee proposes changes to the Comment to include language from and delete language inconsistent with the Model Rule Comment.
The Joint Committee proposes adding paragraphs (b) and (c) from the Model Rule which address, as forms of misconduct, criminal acts that adversely reflect on the lawyer's honesty, trustworthiness, or fitness and conduct that involves dishonesty, fraud, deceit, or misrepresentation. New language from the Model Rule is also added to paragraph (e) additionally identifying as misconduct stating or implying an ability to achieve results that violate the rules or other law. To clarify the scope of paragraph (c), language is also added describing the identified conduct as reflecting on the lawyer's fitness as a lawyer
The Joint Committee proposes adding Comment [1] and changing Comment [2] in conformance with the Model Rule Comment. Comment [3], also in the Model Rule Comment, more fully explains paragraph (f) regarding manifesting bias or prejudice as a form of misconduct. Comment [4] is changed for readability.
The Joint Committee does not propose any changes to the language of the Rule or Comment, which was recently reviewed and slightly amended as part of the multijurisdictional practice rule revision.