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
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229
DILIGENCE
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or
personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are
required to vindicate a client's cause or endeavor. A lawyer should act with commitment and
dedication to the interests of the client and with zeal in advocacy upon the client's behalf. However, a
lawyer is not bound to press for every advantage that might be realized for a client. Unless
instructed by a client to the contrary, a lawyer has professional discretion in determining the means
by which a matter should be pursued, and the lawyer is not required to abide by unreasonable client
instructions. See Rule 1.2. A lawyer's work load should be controlled so that each matter can be
handled adequately.
[2] Perhaps no professional shortcoming is more widely resented than procrastination. A
client's interests often can be adversely affected by the passage of time or the change of conditions;
in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position
may be destroyed. Even when the client's interests are not affected in substance, however,
unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's
trustworthiness.
[3] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry
through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a
specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served
a client over a substantial period in a variety of matters, the client sometimes may assume that the
lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal.
Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer,
preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the
client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial
or administrative proceeding that produced a result adverse to the client but has not been specifically
instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of
appeal before relinquishing responsibility for the matter.
See Rule 1.0(i)
The Proposed Rule is identical to DR 7-101(A)(1). DR 6-101(A)(3) also requires that a
lawyer not "neglect a matter entrusted to him."
Made
1. The Board of Professional Responsibility has asked the Court to add a second sentence
to the Rule that would state: “A lawyer shall not neglect a legal matter entrusted to the lawyer.”
This wording comes from DR 6-103(A)(3). The Committee believes that this addition is
unnecessary because a lawyer who neglects a matter has violated Rule 1.3 by failing to provide
diligent and prompt representation. If, however, the Court believes there should be a specific
reference to neglect, the Committee recommends that this point be made in a new first sentence to
Comment [1], rather than in the Rule text, so as to maintain the consistency of this Rule with the
ABA Model Rule, which has been widely adopted.
2. The Attorney General has voiced a concern about that portion of Comment [1] that refers
to the right of the client to determine the means by which a matter should be pursued. Such a right
is said to be inconsistent with the Attorney General’s responsibilityto make decisions about
litigated matters in the interests of the State of Tennessee, notwithstanding the dictates or wishes of
agency officials. As explained in the Committee’s response to the Attorney General’s concerns
about Rule 1.2, which specifically addresses the allocation of authority between lawyer and client,
the Committee believes that these concerns are adequately addressed in Scope, Paragraph [4].
COMMUNICATION
reasonable requests for information within a reasonable time.
informed decisions regarding the representation.
[1] Reasonable communication between the lawyer and the client is necessary for the client
to effectively participate in the representation. When a decision about the representation must be
made by the client, the lawyer must consult with and secure the client’s consent prior to taking
action. Thus, a lawyer who receives from opposing counsel an offer of settlement in a civil
controversy or a proffered plea bargain in a criminal case should promptly inform the client of its
substance, unless prior discussions with the client have left it clear that the proposal would be
unacceptable. With respect to the decisions for which the client’s prior consent is not required by
Rule 1.2, the lawyer’s responsibility is to keep the client reasonably informed. In some situations --
depending on both the importance of the action under consideration and the feasibility of consulting
with the client -- this duty will require consultation prior to taking the action. In other
circumstances, such as during a trial when an immediate decision must be made, practical exigency
may also require a lawyer to act for a client without prior consultation. In such cases, and in other
situations in which the client has impliedly or expressly delegated authority to the lawyer to take
action without prior consultation, the lawyer must nonetheless act reasonably to keep the client
informed of actions the lawyer has taken on the client’s behalf.
[2] The client should have sufficient information to participate intelligently in decisions
concerning the objectives of the representation and the means by which they are to be pursued, to
the extent the client is willing and able to do so. For example, a lawyer negotiating on behalf of a
client should provide the client with facts relevant to the matter, inform the client of communications
from another party and take other reasonable steps that permit the client to make a decision
regarding a serious offer from another party.
[3] Ordinarily, the information to be provided is that appropriate for a client who is a
comprehending and responsible adult. However, fully informing the client according to this
standard may be impracticable, for example, where the client is a child or suffers from mental
disability. See Rule 1.14. When the client is an organization or group, it is often impossible or
inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer
should address communications to the appropriate officials of the organization. See Rule 1.13.
Where many routine matters are involved, a system of limited or occasional reporting may be
arranged with the client. Practical exigency may also require a lawyer to act for a client without prior
consultation.
[4] In some circumstances, a lawyer may be justified in delaying transmission of
information when the client would be likely to react imprudently to an immediate communication.
Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist
indicates that disclosure would harm the client. A lawyer may not withhold information to serve the
lawyer's own interest or convenience. Rules or court orders governing litigation may provide that
information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance
with such rules or orders.
See Rule 1.0(i)
The proposal is identical to DR 7-101(A)(2) and (3), except that “within a reasonable time”
is added.
The proposal is identical to Model Rule 1.4, except that “within a reasonable time” is
added.
To conform the proposal to the current Tennessee Rules and ABA Model Rule 1.4, the
following paragraphs contained in the Preliminary Draft were deleted:
matter,a lawyer shall consult with the client about the representation as may be
required by the Rules of Professional Conduct.
client; or
not permitted by the Rules of Professional Conduct or other law or
that the lawyer is otherwise unwilling to provide.
Paragraph (B)(2) are adequately addressed in Rule 1.2.
Made
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