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
Paragraph (b): No change in substance. Compression of conflict of interest standards into
two paragraphs. Elimination of awkward references to "intermediation clients."
Paragraph (c): No change in substance. As each party to the intermediation is the lawyer’s
client, the Committee deleted Subparagraphs (c)(2) and (3) as unnecessarily repetitive of Rules 1.6
and 1.2.
Paragraph (f):As each party to an intermediation is a client, the Committee deleted
Paragraph (f) as unnecessarily repetitive of Rule 1.9, which lays out a lawyer’s duties to former
clients.
Made
In response to suggestions from the TBA Tax, Probate, and Trust Law Section, the
Committee proposes a change to Paragraph (b), the addition of new comment [4], and some minor
changes to Comments [1], [5], and [7]. The change in Paragraph (b) and the new Comment,
together with the addition of a new Comment [22] to Rule 1.7, are intended to confirm and clarify
that Rule 1.7 and Rule 2.2 are mutually exclusive. Rule 2.2 governs when a lawyer provides clients
impartial legal advice and assistance in connection with a consensual transaction between them.
Rule 1.7 applies to all other representations in which the lawyer is presumed to be representing each
client as a partisan advocate. This distinction is highlighted by the specification in the Comments
that the representation of multiple clients in connection with gratuitous transfers is governed by
Rule 1.7 rather than Rule 2.2. In this regard, the Committee rejected a proposal to allow lawyers
who would represent multiple parties in a business transaction to choose between providing them
with impartial advice and assistance or serving each client as a partisan advocate. This would have
given the lawyer a choice of complying with either Rule 1.7 or Rule 2.2. The Committee opposes
such an approach because it believes that advocacy and intermediation are mutually exclusive roles,
and that partisan advocacy is not an appropriate role when a lawyer is representing two clients in a
consensual transaction between them.
PROPOSED RULE 2.3
EVALUATION FOR USE BY THIRD PERSONS
than the client if:
aspects of the lawyer's relationship with the client; and
relating to the evaluation is otherwise protected by Rule 1.6.
[1] An evaluation may be performed at the client's direction but for the primary purpose of
establishing information for the benefit of third parties; for example, an opinion concerning the title
of property rendered at the behest of a vendor for the information of a prospective purchaser, or at
the behest of a borrower for the information of a prospective lender. In some situations, the
evaluation may be required by a government agency; for example, an opinion concerning the
legality of the securities registered for sale under the securities laws. In other instances, the
evaluation may be required by a third person, such as a purchaser of a business.
[2] Lawyers for the government may be called upon to give a formal opinion on the legality
of contemplated government agency action. In making such an evaluation, the government lawyer
acts at the behest of the government as the client but for the purpose of establishing the limits of the
agency's authorized activity. Such an opinion is to be distinguished from confidential legal advice
given agency officials. The critical question is whether the opinion is to be made public.
[3] A legal evaluation should be distinguished from an investigation of a person with whom
the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser
to analyze a vendor's title to property does not have a client-lawyer relationship with the vendor. So
also, an investigation into a person's affairs by a government lawyer, or by special counsel
employed by the government, is not an evaluation as that term is used in this Rule. The question is
whether the lawyer is retained by the person whose affairs are being examined. When the lawyer is
retained by that person, the general rules concerning loyalty to client and preservation of
confidences apply, which is not the case if the lawyer is retained by someone else. For this reason, it
is essential to identify the person by whom the lawyer is retained. This should be made clear not
only to the person under examination, but also to others to whom the results are to be made
available.
[4] When the evaluation is intended for the information or use of a third person, a legal duty
to that person may or may not arise. That legal question is beyond the scope of these Rules.
However, since such an evaluation involves a departure from the normal client-lawyer relationship,
careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional
judgment that making the evaluation is compatible with other functions undertaken in behalf of the
fraud, it would normally be incompatible with that responsibility for the lawyer to perform an
evaluation for others concerning the same or a related transaction. Assuming no such impediment is
apparent, however, the lawyer should advise the client of the implications of the evaluation,
particularly the lawyer's responsibilities to third persons and the duty to disseminate the findings.
[5] The quality of an evaluation depends on the freedom and extent of the investigation
upon which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems
necessary as a matter of professional judgment. Under some circumstances, however, the terms of
the evaluation may be limited. For example, certain issues or sources may be categorically excluded,
or the scope of search may be limited by time constraints or the noncooperation of persons having
relevant information. Any such limitations which are material to the evaluation should be described
in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the
terms upon which it was understood the evaluation was to have been made, the lawyer's obligations
are determined by law, having reference to the terms of the client's agreement and the surrounding
circumstances.
[6] When a question concerning the legal situation of a client arises at the instance of the
client's financial auditor and the question is referred to the lawyer, the lawyer's response may be
made in accordance with procedures recognized in the legal profession. Such a procedure is set
forth in the American Bar Association Statement of Policy Regarding Lawyers' Responses to
Auditors' Requests for Information, adopted in 1975.
See Rule 1.0(c)
“Reasonably Believes”See Rule 1.0(j)
Made
The Attorney General has voiced concern that the Proposed Rule conflicts with the Attorney
General’s obligation under state law to render legal opinions in response to requests from various
Scope, Paragraph [4], indicates that the Rules of Professional Conduct are not intended to abrogate
the statutory authority or alter the statutory responsibilities of the Attorney General. Also with
respect to the Attorney General’sspecific concern about the need to obtain the consent of an
agency head prior to rendering an opinion about the duties of that agency, the Committee would
note that the State may well have given “consent” to have the Attorney General render such
opinions by virtue of legislative enactments concerning the Attorney General’s authority and duties.
PROPOSED RULE 2.4
LAWYER AS DISPUTE RESOLUTION NEUTRAL
persons who are not clients of the lawyer to reach a resolution of disputes that have arisen between
them. Service as a dispute resolution neutral may include service as a mediator, an arbitrator whose
decision does not bind the parties, a case evaluator, or a judge or juror in a mini-trial or summary
jury trial as described in Supreme Court Rule 31, or in such other capacity as will enable the lawyer
to impartially assist the parties resolve their dispute.
affected by the representation of clients with interests directly adverse to any of the parties
to the dispute, or by the lawyer’s responsibilities to a client or a third person, or by the
lawyer’s own interests;
lawyer’s qualifications and experience as a dispute resolution neutral, the rules and
procedures which will be followed in the proceeding, and the lawyer’s responsibilities as a
dispute resolution neutral, provided, however, that any party to the dispute who is
represented by a lawyer may waive his or her right to all or part of the consultation required
by this paragraph;
lawyer, the lawyer’s clients, the clients of other lawyers with whom the lawyer is associated
in a firm, or third persons which may materially affect the lawyer’s impartiality in the
matter;
attorneys, consents in writing to the lawyer’s service as a dispute resolution neutral in the
matter; and
accordance with the requirements of that Rule.
be followed in the proceeding and the lawyer’s responsibilities as a dispute resolution
neutral;
dispute;
dispute as if it were information protected by Rules 1.6 and 1.8 (b),
caucus with a party or a party’s lawyer as if it were information related to the representation
of a client protected by Rules 1.6, and 1.8(b);
unrepresented party does not understand how a proposed agreement might affect his or her
legal rights or obligations, the lawyer shall advise that party to seek the advice of
independent counsel;
rendered as the dispute resolution neutral, from a party, a party’s lawyer, or any other
person involved or interested in the dispute resolution process;
matter in dispute and shall not make any substantive decisions on behalf of a party; and
dispute resolution neutral as set forth in the Rule.
shall seek the court’s permission to withdraw from service as a dispute resolution neutral if:
agreement resolving the matter in dispute or that any of the parties is unwilling or unable to
cooperate with the lawyer’s dispute resolution initiatives; or
requirements of Rules 1.2(c) and 2.2, draft a settlement agreement that results from the
dispute resolution process, but shall not otherwise represent any or all of parties in
connection with the matter, and
1.8(b), and 1.9.