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Preamble: A Lawyer’s Responsibilities
A lawyer, as a member of the legal profession, is a
representative of clients, an officer of the legal system, and a public citizen
having special responsibility for the quality of justice.
As a representative of clients, a lawyer performs various
functions. As an adviser, a lawyer provides a client with an informed
understanding of the client's legal rights and obligations and explains their
practical implications. As an advocate, a lawyer zealously asserts the client's
position under the rules of the adversary system. As a negotiator, a lawyer
seeks a result advantageous to the client but consistent with requirements of
honest dealing with others. As an evaluator, a lawyer acts by examining a
client's legal affairs and reporting about them to the client or to others.
In addition to these representational functions, a lawyer may
serve as a third-party neutral, a nonrepresentational role helping the parties
to resolve a dispute or other matter. Some of these rules apply directly to
lawyers who are or have served as third-party neutrals. See, e.g., rules 4-1.12
and 4-2.4. In addition, there are rules that apply to lawyers who are not active
in the practice of law or to practicing lawyers even when they are acting in a
nonprofessional capacity. For example, a lawyer who commits fraud in the conduct
of a business is subject to discipline for engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation. See rule 4-8.4.
In all professional functions a lawyer should be competent,
prompt, and diligent. A lawyer should maintain communication with a client
concerning the representation. A lawyer should keep in confidence information
relating to representation of a client except so far as disclosure is required
or permitted by the Rules of Professional Conduct or by law.
A lawyer's conduct should conform to the requirements of the
law, both in professional service to clients and in the lawyer's business and
personal affairs. A lawyer should use the law's procedures only for legitimate
purposes and not to harass or intimidate others. A lawyer should demonstrate
respect for the legal system and for those who serve it, including judges, other
lawyers, and public officials. While it is a lawyer's duty, when necessary, to
challenge the rectitude of official action, it is also a lawyer's duty to uphold
legal process.
As a public citizen, a lawyer should seek improvement of the
law, access to the legal system, the administration of justice, and the quality
of service rendered by the legal profession. As a member of a learned
profession, a lawyer should cultivate knowledge of the law beyond its use for
clients, employ that knowledge in reform of the law, and work to strengthen
legal education. In addition, a lawyer should further the public's understanding
of and confidence in the rule of law and the justice system, because legal
institutions in a constitutional democracy depend on popular participation and
support to maintain their authority. A lawyer should be mindful of deficiencies
in the administration of justice and of the fact that the poor, and sometimes
persons who are not poor, cannot afford adequate legal assistance. Therefore,
all lawyers should devote professional time and resources and use civic
influence to ensure equal access to our system of justice for all those who
because of economic or social barriers cannot afford or secure adequate legal
counsel. A lawyer should aid the legal profession in pursuing these objectives
and should help the bar regulate itself in the public interest.
Many of the lawyer's professional responsibilities are
prescribed in the Rules of Professional Conduct and in substantive and
procedural law. A lawyer is also guided by personal conscience and the
approbation of professional peers. A lawyer should strive to attain the highest
level of skill, to improve the law and the legal profession, and to exemplify
the legal profession's ideals of public service.
A lawyer's responsibilities as a representative of clients,
an officer of the legal system, and a public citizen are usually harmonious.
Zealous advocacy is not inconsistent with justice. Moreover, unless violations
of law or injury to another or another's property is involved, preserving client
confidences ordinarily serves the public interest because people are more likely
to seek legal advice, and thereby heed their legal obligations, when they know
their communications will be private.
In the practice of law conflicting responsibilities are often
encountered. Difficult ethical problems may arise from a conflict between a
lawyer's responsibility to a client and the lawyer's own sense of personal
honor, including obligations to society and the legal profession. The Rules of
Professional Conduct often prescribe terms for resolving such conflicts. Within
the framework of these rules, however, many difficult issues of professional
discretion can arise. Such issues must be resolved through the exercise of
sensitive professional and moral judgment guided by the basic principles
underlying the rules. These principles include the lawyer's obligation to
protect and pursue a client's legitimate interests, within the bounds of the
law, while maintaining a professional, courteous, and civil attitude toward all
persons involved in the legal system.
Lawyers are officers of the court and they are responsible to
the judiciary for the propriety of their professional activities. Within that
context, the legal profession has been granted powers of self-government.
Self-regulation helps maintain the legal profession's independence from undue
government domination. An independent legal profession is an important force in
preserving government under law, for abuse of legal authority is more readily
challenged by a profession whose members are not dependent on the executive and
legislative branches of government for the right to practice. Supervision by an
independent judiciary, and conformity with the rules the judiciary adopts for
the profession, assures both independence and responsibility.
Thus, every lawyer is responsible for observance of the Rules
of Professional Conduct. A lawyer should also aid in securing their observance
by other lawyers. Neglect of these responsibilities compromises the independence
of the profession and the public interest that it serves.
Scope:
The Rules of Professional Conduct are rules of reason. They
should be interpreted with reference to the purposes of legal representation and
of the law itself. Some of the rules are imperatives, cast in the terms of
"shall" or "shall not." These define proper conduct for purposes of professional
discipline. Others, generally cast in the term "may," are permissive and define
areas under the rules in which the lawyer has discretion to exercise
professional judgment. No disciplinary action should be taken when the lawyer
chooses not to act or acts within the bounds of such discretion. Other rules
define the nature of relationships between the lawyer and others. The rules are
thus partly obligatory and disciplinary and partly constitutive and descriptive
in that they define a lawyer's professional role.
The comment accompanying each rule explains and illustrates
the meaning and purpose of the rule. The comments are intended only as guides to
interpretation, whereas the text of each rule is authoritative. Thus, comments,
even when they use the term "should," do not add obligations to the rules but
merely provide guidance for practicing in compliance with the rules.
The rules presuppose a larger legal context shaping the
lawyer's role. That context includes court rules and statutes relating to
matters of licensure, laws defining specific obligations of lawyers, and
substantive and procedural law in general. Compliance with the rules, as with
all law in an open society, depends primarily upon understanding and voluntary
compliance, secondarily upon reinforcement by peer and public opinion, and
finally, when necessary, upon enforcement through disciplinary proceedings. The
rules do not, however, exhaust the moral and ethical considerations that should
inform a lawyer, for no worthwhile human activity can be completely defined by
legal rules. The rules simply provide a framework for the ethical practice of
law. The comments are sometimes used to alert lawyers to their responsibilities
under other law.
Furthermore, for purposes of determining the lawyer's
authority and responsibility, principles of substantive law external to these
rules determine whether a client-lawyer relationship exists. Most of the duties
flowing from the client-lawyer relationship attach only after the client has
requested the lawyer to render legal services and the lawyer has agreed to do
so. But there are some duties, such as that of confidentiality under rule 4-1.6,
which attach when the lawyer agrees to consider whether a client-lawyer
relationship shall be established. See rule 4-1.18. Whether a client-lawyer
relationship exists for any specific purpose can depend on the circumstances and
may be a question of fact.
Failure to comply with an obligation or prohibition imposed
by a rule is a basis for invoking the disciplinary process. The rules presuppose
that disciplinary assessment of a lawyer's conduct will be made on the basis of
the facts and circumstances as they existed at the time of the conduct in
question in recognition of the fact that a lawyer often has to act upon
uncertain or incomplete evidence of the situation. Moreover, the rules
presuppose that whether discipline should be imposed for a violation, and the
severity of a sanction, depend on all the circumstances, such as the willfulness
and seriousness of the violation, extenuating factors, and whether there have
been previous violations.
Violation of a rule should not itself give rise to a cause of
action against a lawyer nor should it create any presumption in such a case that
a legal duty has been breached. In addition, violation of a rule does not
necessarily warrant any other nondisciplinary remedy, such as disqualification
of a lawyer in pending litigation. The rules are designed to provide guidance to
lawyers and to provide a structure for regulating conduct through disciplinary
agencies. They are not designed to be a basis for civil liability. Furthermore,
the purpose of the rules can be subverted when they are invoked by opposing
parties as procedural weapons. The fact that a rule is a just basis for a
lawyer's self-assessment, or for sanctioning a lawyer under the administration
of a disciplinary authority, does not imply that an antagonist in a collateral
proceeding or transaction has standing to seek enforcement of the rule.
Accordingly, nothing in the rules should be deemed to augment any substantive
legal duty of lawyers or the extra-disciplinary consequences of violating such
duty. Nevertheless, since the rules do establish standards of conduct by
lawyers, a lawyer's violation of a rule may be evidence of a breach of the
applicable standard of conduct.
Terminology:
"Belief" or "believes" denotes that the person involved actually supposed the
fact in question to be true. A person's belief may be inferred from
circumstances.
"Consult" or "consultation" denotes communication of information reasonably
sufficient to permit the client to appreciate the significance of the matter in
question.
"Confirmed in writing," when used in reference to the informed consent of a
person, denotes informed consent that is given in writing by the person or a
writing that a lawyer promptly transmits to the person confirming an oral
informed consent. See "informed consent" below. If it is not feasible to obtain
or transmit the writing at the time the person gives informed consent, then the
lawyer must obtain or transmit it within a reasonable time thereafter.
"Firm" or "law firm" denotes a lawyer or lawyers in a law partnership,
professional corporation, sole proprietorship, or other association authorized
to practice law; or lawyers employed in the legal department of a corporation or
other organization.
"Fraud" or "fraudulent" denotes conduct having a purpose to deceive and not
merely negligent misrepresentation or failure to apprise another of relevant
information.
"Informed consent" denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation
about the material risks of and reasonably available alternatives to the
proposed course of conduct.
"Knowingly," "known," or "knows" denotes actual knowledge of the fact in
question. A person's knowledge may be inferred from circumstances.
"Lawyer" denotes a person who is a member of The Florida Bar or otherwise
authorized to practice in any court of the State of Florida.
"Partner" denotes a member of a partnership and a shareholder in a law firm
organized as a professional corporation, or a member of an association
authorized to practice law.
"Reasonable" or "reasonably" when used in relation to conduct by a lawyer
denotes the conduct of a reasonably prudent and competent lawyer.
"Reasonable belief" or "reasonably believes" when used in reference to a lawyer
denotes that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable.
"Reasonably should know" when used in reference to a lawyer denotes that a
lawyer of reasonable prudence and competence would ascertain the matter in
question.
"Screened" denotes the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably
adequate under the circumstances to protect information that the isolated lawyer
is obligated to protect under these rules or other law.
"Substantial" when used in reference to degree or extent denotes a material
matter of clear and weighty importance.
"Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding,
or a legislative body, administrative agency, or other body acting in an
adjudicative capacity. A legislative body, administrative agency, or other body
acts in an adjudicative capacity when a neutral official, after the presentation
of evidence or legal argument by a party or parties, will render a binding legal
judgment directly affecting a party's interests in a particular matter.
"Writing" or "written" denotes a tangible or electronic record of a
communication or representation, including handwriting, typewriting, printing,
photostating, photography, audio or video recording, and e-mail. A "signed"
writing includes an electronic sound, symbol or process attached to or logically
associated with a writing and executed or adopted by a person with the intent to
sign the writing.
COMMENT
Confirmed in writing
If it is not feasible to obtain or transmit a written confirmation at the time
the client gives informed consent, then the lawyer must obtain or transmit it
within a reasonable time thereafter. If a lawyer has obtained a client's
informed consent, the lawyer may act in reliance on that consent so long as it
is confirmed in writing within a reasonable time thereafter.
Firm
Whether 2 or more lawyers constitute a firm above can depend on the specific
facts. For example, 2 practitioners who share office space and occasionally
consult or assist each other ordinarily would not be regarded as constituting a
firm. However, if they present themselves to the public in a way that suggests
that they are a firm or conduct themselves as a firm, they should be regarded as
a firm for purposes of the rules. The terms of any formal agreement between
associated lawyers are relevant in determining whether they are a firm, as is
the fact that they have mutual access to information concerning the clients they
serve. Furthermore, it is relevant in doubtful cases to consider the underlying
purpose of the rule that is involved. A group of lawyers could be regarded as a
firm for purposes of the rule that the same lawyer should not represent opposing
parties in litigation, while it might not be so regarded for purposes of the
rule that information acquired by 1 lawyer is attributed to another.
With respect to the law department of an organization, including the government,
there is ordinarily no question that the members of the department constitute a
firm within the meaning of the Rules of Professional Conduct. There can be
uncertainty, however, as to the identity of the client. For example, it may not
be clear whether the law department of a corporation represents a subsidiary or
an affiliated corporation, as well as the corporation by which the members of
the department are directly employed. A similar question can arise concerning an
unincorporated association and its local affiliates.
Similar questions can also arise with respect to lawyers in legal aid and legal
services organizations. Depending upon the structure of the organization, the
entire organization or different components of it may constitute a firm or firms
for purposes of these rules.
Fraud
When used in these rules, the terms "fraud" or "fraudulent" refer to conduct
that has a purpose to deceive. This does not include merely negligent
misrepresentation or negligent failure to apprise another of relevant
information. For purposes of these rules, it is not necessary that anyone has
suffered damages or relied on the misrepresentation or failure to inform.
Informed consent
Many of the Rules of Professional Conduct require the lawyer to obtain the
informed consent of a client or other person (e.g., a former client or, under
certain circumstances, a prospective client) before accepting or continuing
representation or pursuing a course of conduct. See, e.g., rules 4-1.2(c),
4-1.6(a), 4-1.7(b), and 4-1.18. The communication necessary to obtain such
consent will vary according to the rule involved and the circumstances giving
rise to the need to obtain informed consent. The lawyer must make reasonable
efforts to ensure that the client or other person possesses information
reasonably adequate to make an informed decision. Ordinarily, this will require
communication that includes a disclosure of the facts and circumstances giving
rise to the situation, any explanation reasonably necessary to inform the client
or other person of the material advantages and disadvantages of the proposed
course of conduct and a discussion of the client's or other person's options and
alternatives. In some circumstances it may be appropriate for a lawyer to advise
a client or other person to seek the advice of other counsel. A lawyer need not
inform a client or other person of facts or implications already known to the
client or other person; nevertheless, a lawyer who does not personally inform
the client or other person assumes the risk that the client or other person is
inadequately informed and the consent is invalid. In determining whether the
information and explanation provided are reasonably adequate, relevant factors
include whether the client or other person is experienced in legal matters
generally and in making decisions of the type involved, and whether the client
or other person is independently represented by other counsel in giving the
consent. Normally, such persons need less information and explanation than
others, and generally a client or other person who is independently represented
by other counsel in giving the consent should be assumed to have given informed
consent.
Obtaining informed consent will usually require an affirmative response by the
client or other person. In general, a lawyer may not assume consent from a
client's or other person's silence. Consent may be inferred, however, from the
conduct of a client or other person who has reasonably adequate information
about the matter. A number of rules state that a person's consent be confirmed
in writing. See, e.g., rule 4-1.7(b). For a definition of "writing" and
"confirmed in writing," see terminology above. Other rules require that a
client's consent be obtained in a writing signed by the client. See, e.g., rule
4-1.8(a). For a definition of "signed," see terminology above.
Screened
This definition applies to situations where screening of a personally
disqualified lawyer is permitted to remove imputation of a conflict of interest
under rules 4-1.11, 4-1.12, or 4-1.18.
The purpose of screening is to assure the affected parties that confidential
information known by the personally disqualified lawyer remains protected. The
personally disqualified lawyer should acknowledge the obligation not to
communicate with any of the other lawyers in the firm with respect to the
matter. Similarly, other lawyers in the firm who are working on the matter
should be informed that the screening is in place and that they may not
communicate with the personally disqualified lawyer with respect to the matter.
Additional screening measures that are appropriate for the particular matter
will depend on the circumstances. To implement, reinforce, and remind all
affected lawyers of the presence of the screening, it may be appropriate for the
firm to undertake such procedures as a written undertaking by the screened
lawyer to avoid any communication with other firm personnel and any contact with
any firm files or other materials relating to the matter, written notice and
instructions to all other firm personnel forbidding any communication with the
screened lawyer relating to the matter, denial of access by the screened lawyer
to firm files or other materials relating to the matter, and periodic reminders
of the screen to the screened lawyer and all other firm personnel.
In order to be effective, screening measures must be implemented as soon as
practicable after a lawyer or law firm knows or reasonably should know that
there is a need for screening.
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