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
FEES
determining the reasonableness of a fee include the following:
the skill requisite to perform the legal service properly;
employment will preclude other employment by the lawyer;
services;
charges; and
communicated to the client, preferably in writing, before or within a reasonable time after
commencing the representation.
A fee may be contingent on the outcome of the matter for which the service is rendered, except
in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee
agreement shall be in writing and signed by the client and shall state the method by which the fee is
to be determined, including the percentage or percentages that shall accrue to the lawyer in the event
of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and
whether such expenses are to be deducted before or after the contingent fee is calculated. Upon
conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement
stating the outcome of the matter and whether there was a recovery, and showing the remittance, if
any, to the client and the method of its determination.
upon the securing of a divorce or the award of custodial rights, or upon the amount of
alimony or support, or the value of a property division or settlement, unless the matter
relates solely to the collection of arrearages in alimony or child support or the enforcement
of an order dividing the marital estate and the fee arrangement is disclosed to the court; or
consent of the client, each lawyer assumes joint responsibility for the
representation; and
involved; and
[1] When the lawyer has regularly represented a client, there ordinarily will have evolved an
understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however,
an understanding as to the fee should be promptly established. It is not necessary to recite all the
factors that underlie the basis of the fee, but only those that are directly involved in its computation.
It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an
estimated amount, or to identify the factors that may be taken into account in finally fixing the fee.
When developments occur during the representation that render an earlier estimate substantially
inaccurate, a revised estimate should be provided to the client. A written statement concerning the
fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum
or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set
forth.
[2] A lawyer may require advance payment of a fee, but is obliged to return any unearned
portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an
ownership interest in an enterprise, providing this does not involve acquisition of a proprietary
interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a
fee paid in property instead of money may be subject to special scrutiny because it involves
questions concerning both the value of the services and the lawyer's special knowledge of the value
of the property. If the property belongs to the client, the lawyer will also have to comply with the
requirements of Rule 1.8(a).
[3] An agreement may not be made whose terms might induce the lawyer improperly to
curtail services for the client or perform them in a way contrary to the client's interest. For example,
a lawyer should not enter into an agreement whereby services are to be provided only up to a stated
amount when it is foreseeable that more extensive services probably will be required, unless the
situation is adequately explained to the client. Otherwise, the client might have to bargain for further
assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of
services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based
primarily on hourly charges by using wasteful procedures. When there is doubt whether a
contingent fee is consistent with the client's best interest, the lawyer should offer the client
on contingent fees, such as a ceiling on the percentage.
[4]In some circumstances, other law may regulate the fees and expenses charged by
lawyers. For example, Tennessee law regulates contingent fees in medical malpractice cases. See,
e.g., Tenn. Code Ann. § 29-26-120 (1980). In these circumstances, charging unlawful fees or
expenses may be considered unreasonable under section (a) of this Rules and may violate Rule 8.4
or other rules. See, e.g., Rule 8.4(d) (prohibiting conduct prejudicial to the administration of
justice).
[5] A division of fee is a single billing to a client covering the fee of two or more lawyers
who are not in the same firm. A division of fee facilitates association of more than one lawyer in a
matter in which neither alone could serve the client as well, and most often is used when the fee is
contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits
the lawyers to divide a fee on either the basis of the proportion of services they render or by
agreement between the participating lawyers if all assume responsibility for the representation as a
whole and the client is advised and does not object. It does not require disclosure to the client of the
share that each lawyer is to receive. Joint responsibility for the representation entails the obligations
stated in Rule 5.1 for purposes of the matter involved.
[6] If a procedure has been established for resolution of fee disputes, such as an arbitration
or mediation procedure established by the bar, the lawyer should conscientiously consider
submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in
representation of an executor or administrator, a class or a person entitled to a reasonable fee as part
of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another
party concerned with the fee should comply with the prescribed procedure.
See Rule 1.0(d)
“Reasonable” and “Reasonableness” See Rule 1.0(i)
CONFIDENTIALITY
consents after consultation, except that the lawyer may make such disclosures as are impliedly
authorized by the client in order for the lawyer to carry out the representation.
reasonably believes disclosure is necessary:
prohibited or restricted by Rule 3.3;
resulting from the client’s commission of a crime or fraud in furtherance of which the
client has used the lawyer’s services, unless disclosure is prohibited or restricted by Rule
3.3;
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer's representation of the client.
reasonably believes disclosure is necessary:
(1) to comply with an order of a tribunal requiring disclosure but only if ordered to do so
by the tribunal after the lawyer has asserted on behalf of the client all non-frivolous claims
that the information sought by the tribunal is protected against disclosure by the attorney-client
privilege or other applicable law.
[1] This Rule governs the disclosure by a lawyer of information relating to the
representation of a client during the lawyer’s representation of the client. See Rule 1.8(b) with
respect to the use of such information to the disadvantage of the client. See Rule 1.9(c) with respect
to disclosure and adverse use of information relating to the representation of a former client.
[2] The observance of the ethical obligation of a lawyer to hold inviolate confidential
information of the client not only facilitates the full development of facts essential to proper
representation of the client but also encourages people to seek early legal assistance.
[3] Almost without exception, clients come to lawyers in order to determine what their rights
are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common
experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain
confidentiality of information relating to the representation. This contributes to the trust that is the
hallmark of the client-lawyer relationship. The client is thereby encouraged to communicate fully
and frankly with the lawyer even as to embarrassing or legally damaging subject matter.
[5] The principle of lawyer-client confidentiality is given effect by related bodies of law,
including the attorney-client privilege, the work-product doctrine, and the rule of confidentiality
established in professional ethics. The attorney-client privilege applies in judicial and other
proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence
concerning a client. The rule of client-lawyer confidentiality applies in situations other than those
where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for
example, applies not only to matters communicated in confidence by the client but also to all
information relating to the representation, whatever its source. A lawyer may not disclose such
information except as authorized or required by the Rules of Professional Conduct or other law.
See also Scope.
[6] The requirement of maintaining confidentiality of information relating to representation
applies to government lawyers who may disagree with the policy goals that their representation is
designed to advance.
[7] Paragraph (a) prohibits a lawyer from revealing information relating to the
representation of a client. This prohibition also applies to disclosures by a lawyer that do not in
themselves reveal protected information but could reasonably lead to the discovery of such
information by a third person. A lawyer’s use of hypotheticals to discuss issues relating to the
representation is permissible so long as there is no reasonable likelihood that the listener will be
able to ascertain the identity of the client or the situation involved.
[8] A lawyer is impliedly authorized to make disclosures about a client when appropriate in
carrying out the representation, except to the extent that the client's instructions or special
circumstances limit that authority. In litigation, for example, a lawyer may disclose information by
admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that
facilitates a satisfactory conclusion.
[9] Lawyers in a firm may, in the course of the firm's practice, disclose to each other
information relating to a client of the firm, unless the client has instructed that particular information
be confined to specified lawyers.
Disclosure Adverse to Client
[10] Although the public interest is usually best served by a strict rule requiring lawyers to
preserve the confidentiality of information relating to the representation of their clients, the
confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value
of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably
certain death or substantial bodily harm. Substantial bodily harm includes life threatening and
debilitating illnesses and the consequences of child sexual abuse. Such injuries are reasonably
certain to occur if they will be suffered imminently or if there is a present and substantial threat that
a person will suffer such injuries at a later date if the lawyer fails to take action necessary to
into a town’s water supply may reveal this information to the authorities if there is a present and
substantial risk that a person who drinks the water will contract a life-threatening or debilitating
disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of
victims.
[11] Paragraph (b)(2) enables the lawyer to reveal information to the extent necessary to
prevent the client from committing a crime. The client can, of course, prevent such disclosure by
refraining from the wrongful conduct. Although Paragraph (b)(2) does not require that the lawyer
reveal the client’s misconduct, the lawyer may not in any way counsel the client to engage, or assist
the client, in conduct that the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also
Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the
client in such circumstances. Where the client is an organization, the lawyer may be in doubt
whether contemplated conduct will actually be carried out by the organization’s constituents. Where
necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the
organization as indicated in Rule 1.13(b). Rule 3.3, rather than Paragraph (b)(2) governs disclosure
of a client’s intention to commit perjury or other crimes in connection with an adjudicative
proceeding.
[12] Paragraph (b)(3) addresses the situation in which a lawyer services have been used by
the client in furtherance of the client’s commission of a crime or fraud, but the lawyer does not
discover this misuse of the lawyer’s services until after the crime or fraud has been consummated
and loss has been suffered by the victim. Although the client no longer has the option of preventing
disclosure by refraining from the wrongful conduct, there will be situations in which a substantial
loss suffered by the affected person can be rectified or mitigated. In such situations, the lawyer
may disclose information relating to representation to the extent necessary to assist the affected
persons recoup their losses.
[13] A lawyer’s confidentiality obligations do not preclude a lawyer from securing legal
advice about the lawyer’s personal responsibility to comply with these Rules. In most situations,
disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out
the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits
such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional
Conduct. For the protection of the client, such disclosures may be made only if they will be
protected by the attorney-client privilege.
[14] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's
conduct or other misconduct of the lawyer involving representation of the client, the lawyer may
respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is
true with respect to a claim involving the conduct or representation of a former client. Such a charge
can arise in a civil, criminal or professional disciplinary proceeding, and can be based on a wrong
allegedly committed by the lawyer against the client, or on a wrong alleged by a third person; for
example, a person claiming to have been defrauded by the lawyer and client acting together. The
lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph
(b)(5) does not require the lawyer to await the commencement of an action or proceeding that
charges such complicity, so that the defense may be established by responding directly to a third
party who has made such an assertion. The right to defend, of course, applies where a proceeding
has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the
defense, the lawyer should advise the client of the third party's assertion and request that the client
respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably
believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits