1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
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 upright person while
earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such
conflicts. Within the framework of these Rules 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.
[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.
[1] 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 professional discretion. 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 either additional guidance for practicing in compliance with the Rules or
make suggestions about good practice which lawyers would be well-advised to heed even though
the Rules do not require them to do so.
[2] 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.
[3] 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 may attach when the lawyer agrees to
consider whether a client-lawyer relationship shall be established. Whether a client-lawyer
relationship exists for any specific purpose can depend on the circumstances and may be a question
of fact.
[4] Under various legal provisions, including constitutional, statutory and common law, the
responsibilities of government lawyers may differ from those of lawyers in private client-lawyer
relationships. For example, in certain circumstances, the Attorney General of Tennessee has
authority on behalf of the government to decide upon settlement or whether to appeal from an
adverse judgmenlawyers employed by the federal government. Also, certain government lawyers
under the supervision of these officers may be authorized to represent several government agencies,
officers or employees in legal controversies in circumstances where a private lawyer could not
represent multiple private clients. Government lawyers in Tennessee are also subject to the Open
Meetings Act as interpreted by the Tennessee courts. They also may have authority to represent the
"public interest" in circumstances where a private lawyer would not be authorized to do so. These
Rules are not intended to abrogate the powers and responsibilities of government lawyers under
federal law or under the constitution, statutes, or common law of Tennessee.
[5] 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.
[6] Violation of a Rule should not give rise to a cause of action nor should it create any
presumption that a legal duty has been breached. 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 a duty.
[7] Moreover, these Rules are not intended to govern or affect judicial application of either
the attorney-client or work product privilege. Those privileges were developed to promote
compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are
entitled to expect that communications within the scope of the privilege will be protected against
compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The
fact that in exceptional situations the lawyer under the Rules has a limited discretion to disclose a
client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable
expectation that information relating to the client will not be voluntarily disclosed and that
disclosure of such information may be judicially compelled only in accordance with recognized
exceptions to the attorney-client and work product privileges.
[8] The lawyer's exercise of discretion not to disclose information when permitted to do so
by Rule 1.6 should not be subject to reexamination. Permitting such reexamination would be
incompatible with the general policy of promoting compliance with law through assurances that
communications will be protected against disclosure.
[9] 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 either as guides to interpretation or as suggestions of good practice, but the
text of each Rule is authoritative.
CHAPTER 1
CLIENT-LAWYER RELATIONSHIP
DEFINITIONS
be true. A person's belief may be inferred from circumstances.
a client, or (ii) oral consent given by a client which the lawyer confirms in writing in a manner which
can be easily understood by the client and which is promptly transmitted to the client by means
reasonably calculated to reach the client.
permit the client to appreciate the significance of the matter in question.
legal department of a corporation, government agency, or other organization and lawyers employed
in a legal services organization. See Comment, Rule 1.10.
an intentional omission from a statement of fact of such additional information as would be
necessary to make the statements made not materially misleading, and such other conduct by a
person intended to deceive a person or tribunal with respect to a material issue in a proceeding or
other matter.
person's knowledge may be inferred from circumstances.
or determining how to act in a matter.
liability partnership, a shareholder in law firm organized as a professional corporation, a member in
a law firm organized as a professional limited liability company, or a sole practitioner who employs
other lawyers or nonlawyers in connection with his or her practice.
of a reasonably prudent and competent lawyer.
the lawyer believes the matter in question and that the circumstances are such that the belief is
reasonable.
reasonable prudence and competence would ascertain the matter in question.
importance.
In circumstances in which these rules require either consent in writing or written consent,
the requirement may be satisfied by an electronic transmission that is reasonably calculated to reach
the client, provided that the transmission can be reduced to writing or permanently retained in
electronic format.
COMPETENCE
legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.
[1] In determining whether a lawyer employs the requisite knowledge and skill in a
particular matter, relevant factors include the relative complexity and specialized nature of the matter,
the lawyer's general experience, the lawyer's training and experience in the field in question, the
preparation and study the lawyer is able to give the matter and whether it is feasible to refer the
matter to, or associate or consult with, a lawyer of established competence in the field in question. In
many instances, the required proficiency is that of a general practitioner. Expertise in a particular
field of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to handle legal
problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as
competent as a practitioner with long experience. Some important legal skills, such as the analysis
of precedent, the evaluation of evidence and legal drafting, are required in all legal problems.
Perhaps the most fundamental legal skill consists of determining what kind of legal problems a
situation may involve, a skill that necessarily transcends any particular specialized knowledge. A
lawyer can provide adequate representation in a wholly novel field through necessary study. Compe-
tent representation can also be provided through the association of a lawyer of established
competence in the field in question.
[3] In a situation in which a client is threatened with imminent and irreparable harm, a
lawyer may give advice or assistance in a matter in which the lawyer does not have the skill
ordinarily required where referral to or consultation or association with another lawyer would be
impractical. Even in such a situation, however, assistance should be limited to that reasonably
necessary in the circumstances, for ill-considered action can jeopardize the client's interest.
[4] A lawyer may accept representation where the requisite level of competence can be
achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for
an unrepresented person. See also Rule 6.2.
[5] Competent handling of a particular matter includes inquiry into and analysis of the
factual and legal elements of the problem, and use of methods and procedures meeting the
standards of competent practitioners. It also includes adequate preparation. The required attention
and preparation are determined in part by what is at stake; major litigation and complex transactions
ordinarily require more elaborate treatment than matters of lesser consequence.
[6] To maintain the requisite knowledge and skill, a lawyer should engage in regular
continuing study and education which is pertinent to the lawyer’s practice and should
the lawyer is licensed to practice law. If a system of peer review has been established, the lawyer
should consider making use of it in appropriate circumstances.
See Rule 1.0(i)