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
grievances.
[7] By virtue of its exemption of communications authorized by law, this Rule permits a
prosecutor or a government lawyer engaged in a criminal or civil law enforcement investigation to
communicate with or direct investigative agents to communicate with a represented person prior to
the commencement of a criminal or civil law enforcement proceeding against the represented
person. A civil law enforcement investigation is one conducted under the government’s police or
regulatory power to enforce the law. Once a represented person has been arrested, indicted, charged,
or named as a defendant in a criminal or civil law enforcement proceeding, however, prosecutors
and government lawyers must comply with this Rule. A represented person’s waiver of the
constitutional right to counsel does not exempt the prosecutor from the duty to comply with this
Rule.
[8] In the event the person with whom the lawyer communicates is not known to be
represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3.
See Rule 1.0(f)
PROPOSED RULE 4.3
DEALING WITH UNREPRESENTED PERSON
state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know
that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an
unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably
should know that the interests of such a person are or have a reasonable possibility of being in
conflict with the interests of the client.
[1]An unrepresented person, particularly one not experienced in dealing with legal matters,
might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even
when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically
need to identify the lawyer’s client and, where necessary, explain that the client has interests
opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a
lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(d).
[2]The Rule distinguishes between situations involving unrepresented persons whose
interests may be adverse to those of the lawyer’s client and those in which the person’s interests are
not in conflict with the client’s. In the former situation, the possibility that the lawyer will
compromise the unrepresented person’s interests is so great that the Rule prohibits the giving of
any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice
may depend on the experience and sophistication of the unrepresented person, as well as the setting
in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating
the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer
has explained that the lawyer represents an adverse party and is not representing the person, the
lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement
or settle a matter, prepare documents that require the person's signature and explain the lawyer's
own view of the meaning of the document or the lawyer's view of the underlying legal obligations.
See Rule 1.0(f)
“Reasonable”See Rule 1.0(i)
“Reasonably Should Know”See Rule 1.0(k)
PROPOSED RULE 4.4
RESPECT FOR RIGHTS OF THIRD PERSONS
third person or knowingly use methods of obtaining evidence that violate the legal rights of
such a person; or
charge, for the purpose of obtaining an advantage in a civil matter.
Responsibility to a client requires a lawyer to subordinate the interests of others to those of
the client, but that responsibility does not imply that a lawyer may disregard the rights of third
persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods
of obtaining evidence from third persons. For example, a lawyer may not secretly record a
conversation or the activities of another person if doing so would violate state or federal law
specifically prohibiting such recording. Otherwise, this Rule does not prohibit secret recording so
long as the lawyer has a substantial purpose other than to embarrass or burden the persons being
recorded. It would be a violation of Rule 4.1 or Rule 8.4(c), however, if the lawyer stated falsely or
affirmatively misled another to believe that a conversation or an activity was not being recorded. By
itself, however, secret taping does not violate either Rule 8.4(c) (prohibition against dishonest or
deceitful conduct) or Rule 8.4(d) (prohibition against conduct prejudicial to the administration of
justice.)
See Rule 1.0(f)
“Substantial”See Rule 1.0(l)
CHAPTER 5
LAW FIRMS, LEGAL DEPARTMENTS, AND LEGAL
SERVICE ORGANIZATIONS
PROPOSED RULE 5.1
RESPONSIBILITIES OF A PARTNER, MANAGING LAWYER OR SUPERVISORY
LAWYER
a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm
has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules
of Professional Conduct.
to ensure that the other lawyer conforms to the Rules of Professional Conduct.
Conduct if:
involved; or
(i) is a partner or has comparable managerial authority in the law firm in which
the other lawyer practices, has direct supervisory authority over the other lawyer, is
serving as co-counsel with the other lawyer in the matter, or is sharing fees from the
matter with the other lawyer; and
mitigated but fails to take reasonable remedial action.
[1]Paragraph (a) applies to lawyers who have managerial authority over the professional
work of a law firm. See Rule 1.0(d) (defining law firm to include not only a private law firm, but
also a legal department of a corporation, government agency, or other organization and a legal
services organization). Each partner in a law partnership, or their counterparts in firms organized as
professional corporations, professional limited liability companies, or professional limited liability
partnerships will be deemed to possess managerial authority for all aspects of the firm’s practice.
A law firm or other organization of lawyers described in this Rule may, however, agree that the
managerial authority for the conduct of the firm or organization will be centralized in some but not
all of the partners or managing lawyers. In such a case, only the partners or managing lawyers
possessing such managerial authority will be subject to the duty imposed by paragraph (a). On the
other hand, however, paragraph (a) may be applicable when a lawyer in a firm or other organization
of lawyers described in this Rule, whether or not a partner or a managing lawyer, is assigned
intermediate-level managerial responsibilities for a department or an office within the firm. Because
many lawyers do not practice in traditional law firms, but rather practice law in legal departments of
business firms, legal services organizations, or in legal departments of governmental agencies, this
rule also applies to lawyers possessing managerial authority in such organizations.
[2] The measures required to fulfill the responsibility prescribed in paragraph (a) can
depend on the organization’s structure and the nature of its practice. In a small law firm or legal
department, for example, informal supervision and occasional admonition ordinarily might be
sufficient. In large firms or legal departments, however, or in practice situations in which intensely
difficult ethical problems frequently arise, more elaborate procedures may be necessary. Some
firms, for example, have a procedure whereby junior lawyers can make confidential referral of
ethical problems directly to a designated senior partner or special committee. See Rule 5.2. Firms
and legal departments, whether large or small, may also rely on continuing legal education in
professional ethics. In any event, the ethical atmosphere of a firm or organization can influence the
conduct of all its members and a lawyer having authority over the work of another may not assume
that the subordinate lawyer will inevitably conform to the Rules.
[3] Paragraph (b) applies to lawyers, without regard to their status in a firm or other
organization of lawyers described in this Rule, who assume direct supervisory responsibility for the
oversight of the work of another lawyer.
[4] Paragraph (c)(1) expresses a general principle of responsibility for acts of another. See
also Rule 8.4(a).
[5] Paragraph (c)(2) specifies the circumstances in which one lawyer will be held
accountable for the professional misconduct of another lawyer because he or she knows the other
lawyer has engaged in professional misconduct and fails to take reasonable action to prevent or
mitigate the harm caused by the professional misconduct. Whether a lawyer has such supervisory
authority in particular circumstances is a question of fact. Partners of a private firm have at least
indirect responsibility for all work being done by the firm, while a partner in charge of a particular
matter ordinarily has direct authority over other firm lawyers engaged in the matter. Appropriate
remedial action by a partner would depend on the immediacy of the partner's involvement and the
seriousness of the misconduct. The supervisor is required to intervene to prevent avoidable
consequences of misconduct if the supervisor knows that the misconduct occurred. If, for example,
a partner in a law firm knows that another lawyer in the firm misrepresented a matter to an opposing
party in a negotiation, the partner as well as the subordinate has a duty to correct the resulting
misapprehension. Such would also be the case if a lawyer who was associated with another lawyer
as a direct supervisor, co-counsel, or as a party to a fee-sharing agreement learned that the other
lawyer had engaged in misconduct in connection with the representation. This duty is in addition to
the lawyer’s Rule 8.3(a) duty to report professional misconduct to the Office of Disciplinary
Counsel. The obligation to take reasonable remedial action, however, does not require the lawyer to
take any action which would violate these rules, e.g., disclosing information related to the
representation of a client in violation of Rule 1.6. Nor does the duty to mitigate harm require the
lawyer to compensate a person for losses suffered by virtue of the misconduct the lawyer knows
has occurred.
[6] Professional misconduct by a lawyer in a firm or other organization of lawyers
described in this Rule, or a lawyer who is working under the direct supervision of another lawyer
could reveal a violation of paragraph (a) or (b) on the part of the partner or the supervisory lawyer
even though it does not entail a violation of paragraph (c) by the partner, the managing lawyer, or
supervisory lawyer because there was no direction, ratification, or knowledge of the violation.
[7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the
conduct of a partner, associate or another lawyer with whom the lawyer is associated in connection
with the representation of a client. Whether a lawyer may be held civilly or criminally liable for
another lawyer's conduct is a question of law beyond the scope of these Rules. This Rule is only
and responsibilities of partners, supervisory lawyers, co-counsel, or parties to fee-sharing
agreements with respect to the conduct of other lawyers with whom they are associated.
See Rule 1.0(d)
“Knows”See Rule 1.0(f)
“Partner”See Rule 1.0(h)
“Reasonable”See Rule 1.0(i)