Model Rules of Professional Conduct
PREAMBLE
AND SCOPE
PREAMBLE:
A LAWYER'S RESPONSIBILITIES
[1] 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.
[2] As a representative of clients, a lawyer
performs various functions. As advisor, a lawyer provides
a client with an informed understanding of the client's
legal rights and obligations and explains their practical
implications. As advocate, a lawyer zealously asserts the
client's position under the rules of the adversary system.
As negotiator, a lawyer seeks a result advantageous to the
client but consistent with requirements of honest dealings
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.
[3] 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 1.12 and 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 8.4.
[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 other law.
[5] 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.
[6] 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.
[7] Many of a lawyer's professional responsibilities
are prescribed in the Rules of Professional Conduct, as
well as substantive and procedural law. However, 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.
[8] A lawyer's responsibilities as a representative
of clients, an officer of the legal system and a public
citizen are usually harmonious. Thus, when an opposing party
is well represented, a lawyer can be a zealous advocate
on behalf of a client and at the same time assume that justice
is being done. So also, a lawyer can be sure that 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.
[9] In the nature of law practice, however,
conflicting responsibilities are encountered. Virtually
all difficult ethical problems arise from conflict between
a lawyer's responsibilities to clients, to the legal system
and to the lawyer's own interest in remaining an ethical
person while earning a satisfactory living. 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 zealously 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.
[10] The legal profession is largely self-governing.
Although other professions also have been granted powers
of self-government, the legal profession is unique in this
respect because of the close relationship between the profession
and the processes of government and law enforcement. This
connection is manifested in the fact that ultimate authority
over the legal profession is vested largely in the courts.
[11] To the extent that lawyers meet the
obligations of their professional calling, the occasion
for government regulation is obviated. Self-regulation also
helps maintain the legal profession's independence from
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 government
for the right to practice.
[12] The legal profession's relative autonomy
carries with it special responsibilities of self-government.
The profession has a responsibility to assure that its regulations
are conceived in the public interest and not in furtherance
of parochial or self-interested concerns of the bar. 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
which it serves.
[13] Lawyers play a vital role in the preservation
of society. The fulfillment of this role requires an understanding
by lawyers of their relationship to our legal system. The
Rules of Professional Conduct, when properly applied, serve
to define that relationship.
SCOPE
[14] 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 "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. Many of the Comments use the term "should."
Comments do not add obligations to the Rules but provide
guidance for practicing in compliance with the Rules.
[15] 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. The Comments are sometimes
used to alert lawyers to their responsibilities under such
other law.
[16] 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.
[17] 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
1.6, that attach when the lawyer agrees to consider whether
a client-lawyer relationship shall be established. See Rule
1.18. Whether a client-lawyer relationship exists for any
specific purpose can depend on the circumstances and may
be a question of fact.
[18] Under various legal provisions, including
constitutional, statutory and common law, the responsibilities
of government lawyers may include authority concerning legal
matters that ordinarily reposes in the client in private
client-lawyer relationships. For example, a lawyer for a
government agency may have authority on behalf of the government
to decide upon settlement or whether to appeal from an adverse
judgment. Such authority in various respects is generally
vested in the attorney general and the state's attorney
in state government, and their federal counterparts, and
the same may be true of other government law officers. Also,
lawyers under the supervision of these officers may be authorized
to represent several government agencies in intragovernmental
legal controversies in circumstances where a private lawyer
could not represent multiple private clients. These Rules
do not abrogate any such authority.
[19] 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 and 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 or not 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.
[20] 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. Nevertheless, since the Rules
do establish standards of conduct by lawyers, a lawyer's
violation of a Rule may be evidence of breach of the applicable
standard of conduct.
[21] The Comment accompanying each Rule
explains and illustrates the meaning and purpose of the
Rule. The Preamble and this note on Scope provide general
orientation. The Comments are intended as guides to interpretation,
but the text of each Rule is authoritative.
Preface
| Chairperson's Introduction
| Ethics 2000 Chair's Introduction
| Table of Contents
|
