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25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
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97-102
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109-114
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163-168
169-174
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229
[1] A lawyer is an expert in law pursuing a learned art in service to clients and in the spirit
of public service and engaging in these pursuits as part of a common calling to promote justice and
public good. Essential characteristics of the lawyer are knowledge of the law, skill in applying the
applicable law to the factual context, thoroughness of preparation, practical and prudential wisdom,
ethical conduct and integrity, and dedication to justice and the public good.
[2] A lawyer is a representative of clients, an officer of the legal system and a public citizen
having special responsibility for the quality of justice.
[3] 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 dealing with others. As intermediary between
clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a
spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and
reporting about them to the client or to others.
[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, 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. 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, and should therefore devote professional
time and civic influence in their behalf. 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
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 judgment. The same may be true of lawyers 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.
Made
1. Each paragraph in the Preamble and Scope has been numbered. This parallels the
enumeration in the Comments and will facilitate citation.
2. Scope, Paragraph [4], has been modified in response to the Comment filed with the Court
by the Attorney General of Tennessee. The Committee believes that this change is responsive to the
Attorney General’s concern, while also acknowledging that lawyers for other governmental entities
may also have special powers and responsibilities. Rather than create unique and non-uniform
Tennessee exceptions in each of the various rules about which the Attorney General voiced concern,
the Committee believes that this revision affords Tennessee courts the flexibility to recognize the
distinctive legal responsibilities and prerogatives of the Attorney General and other government
lawyers.
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.
(d) Firm or Law Firm: A law firm is defined in the Disciplinary Rules as including “a
professional legal corporation and a professional legal limited liability legal company.”
Paragraph (d) broadens this definition by referring more generally to a private firm and
broadening one definition to include legal departments and legal services organizations as
well as the traditional private law firm.
Consents in Writing:There is no counterpart in the Model Rules.
a purpose to deceive and not merely negligent misrepresentation or failure to apprise
another of relevant information.” The proposed definition includes specific reference to
intentionally false and misleading statements and an intentional omission from a statement
of fact of such additional information as would be necessary to make the statements made
not materially misleading.
partnership” and a “shareholder in a law firm organized as a professional corporation.”
The Committee has broadened this definition -- which is used in Rules 5.1 through 5.4 -- to
include members in PLLCs and a sole practitioner who employs other lawyers or
nonlawyers in connection with his or her practice.
between materiality (something a reasonable lawyer would consider important) and
substantiality (something that is of clear and weighty importance).
The definitions were transferred from a “Terminology” section at the end of the Preamble
to a new Rule 1.0.