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
CHAPTER 4
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
PROPOSED RULE 4.1
TRUTHFULNESS AND CANDOR IN STATEMENTS TO OTHERS
material fact or law to a third person.
client intends to perpetrate a crime or fraud, the lawyer shall promptly advise the client to refrain
from doing so and shall consult with the client about the consequences of the client's conduct. If
after such consultation, the lawyer knows that the client still intends to engage in the wrongful
conduct, the lawyer shall:
(2) give notice of the withdrawal to any person who the lawyer knows is aware of the
lawyer’s representation of the client in the matter and whose financial or property interests
are likely to be injured by the client’s criminal or fraudulent conduct. The lawyer shall also
give notice to any such person of the lawyer’s disaffirmance of any written statements,
opinions, or other material prepared by the lawyer on behalf of the client and which the
lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.
(c) If a lawyer who is representing or has represented a client in a nonadjudicative mattercomes to
know, prior to the conclusion of the matter, that the client has, during the course of the lawyer's
representation of the client, perpetrated a crime or fraud, the lawyer shall promptly advise the client
to rectify the crime or fraud, and consult with the client about the consequences of the client's failure
todo so. If the client refuses or is unable to rectify the crime or fraud, the lawyer shall:
(1) if currently representing the client in the matter, withdraw from the representation and
give notice of the withdrawal to any person who the lawyer knows is aware of the lawyer’s
representation of the client in the matter and whose financial or property interests are
likely to be injured by the client’s criminal or fraudulent conduct; and
opinions or other material prepared by the lawyer on behalf of the client and which the
lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.
[1]A lawyer is required to be truthful when dealing with others on a client's behalf, but
generally has no affirmative duty to inform an opposing party of relevant facts or law. A
misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that
the lawyer knows is false. Misrepresentations can also occur by failure to act.
[2]This Rule refers to statements of fact. Whether a particular statement should be
regarded as one of fact can depend on the circumstances. Under generally accepted conventions in
negotiation, certain types of statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a party's intentions as to an
principal except where nondisclosure of the principal would constitute fraud.
[3]Paragraphs(b) and (c) provide guidance for lawyers who discover that a client intends
to or is engaging in criminal or fraudulent conduct, and in some cases may even have used the
lawyer's services to assist them commit the crime or fraud. To avoid assisting the client with the
crime or fraud, the lawyer must advise the client to refrain from or to rectify the consequences of the
criminal or fraudulent act. If the client refuses or is unable to do so, the lawyer must withdraw from
the representation of the client in the matter. Additionally, this Rule mandates limited disclosures --
notice of withdrawal or disaffirmance of written work product -- in circumstances in which such
disclosure is necessary for the lawyer to prevent the client from using the lawyer's services in
furtherance of the crime or fraud. To this limited extent, then, this Rule overrides the lawyer's duties
in Rules 1.6, 1.8(b) and 1.9(c) prohibiting disclosure or use to the disadvantage of the client of
information relating to the representation. Other than the disclosure mandated by this rule, however,
the lawyer must not reveal information relating to the representation unless permitted to do so by
Rule 1.6.
[4]If a lawyer learns that a client intends to commit a crime or fraud under circumstances
in which the lawyer will not assist the offense by remaining silent, paragraph (b) requires
remonstration with the client against the crime or fraud, and requires withdrawal if the client does
not desist from the course of conduct in question. Although the lawyer is not required to reveal the
client's intended or ongoing fraud, the lawyer is required to communicate the fact that he or she has
withdrawn from the representation of the client to any person who the lawyer reasonably believes
knows of the lawyer's involvement in the matter and whose financial or property interests are likely
to be damaged by the client's intended or ongoing misconduct. This communication is necessary to
fully distance the lawyer from the client's misconduct. If the client's intended conduct is a crime,
full disclosure of the crime is permitted by Rule 1.6(b), but is not required by paragraph (b) of this
Rule.
[5]In some cases, a lawyer will learn about a client's crime or fraud after he or she has
innocently prepared and submitted statements, opinions or other materials to third parties who will
be adversely affected if the client persists with his or her misconduct. If the lawyer was misled by
the client, some of these statements, opinions or materials may be false or misleading. Even though
accurate, they may be necessary for the accomplishment of the client's crime or fraud. This
presents the lawyer with a dilemma. Without the consent of the client, the lawyer may not correct
the statements, opinions or materials. That would violate the prohibition against revealing
information related to the representation of the client. Yet to do nothing would allow the client to
use the lawyer's work in the client's ongoing effort to consummate the fraud. To resolve this
dilemma, paragraphs (b) and (c) do not require disclosure of the crime or fraud but only requires
that the lawyer effectively disengage from the crime or fraud by giving notice to affected persons of
the lawyer's disaffirmance of the lawyer's work product that the lawyer reasonably believes may be
used by the client in furtherance of the crime or fraud. See Rule 1.6(b) for the circumstances in
which the lawyer may be permitted to more fully reveal information for the purposes or preventing
or rectifying the client's crime or fraud.
[6]If, after the conclusion of a matter in which a lawyer has represented a client, the lawyer
learns that the client has perpetrated a crime or fraud during the course of the lawyer’s
representation, the lawyer may not reveal the crime or fraud unless permitted to do so by
Rule 1.6(b)(3).
“Material”See Rule 1.0(g)
“Fraud” and Fraudulent” See Rule 1.0(e)
“Consult” and “Consultation”See Rule 1.0(c)
“Reasonably Believes”See Rule 1.0(j)
Paragraph (a): Paragraph (a) is substantially similar to DR 7-102(A)(5), which states that
"[i]n the representation of a client, a lawyer shall not . . . [k]nowingly make a false statement of law
or fact."
Paragraph (b): There is no directly comparable provision in the ABA Model Rules. Model
Rule 4.1 itself says nothing about withdrawal, but Model Rules 1.2(d) and 1.16 would probably
require withdrawal. Although a Comment to Model Rule 1.6 indicates that it does not prohibit a
lawyer from informing persons of his or her withdrawal, there is no rule that requires lawyers to
inform affected persons of the withdrawal.
Paragraph (c):There is no directly comparable provision in the ABA Model Rules. Model
Rule 4.1 itself says nothing about withdrawal, but Model Rules 1.2(d) and 1.16 would probably
require withdrawal. Although a Comment to Model Rule 1.6 discusses what has come to be known
as “noisy withdrawals,” there is no rule that requires a lawyer to inform affected persons of his or
her withdrawal or to disaffirm work product tainted by the client’s fraud.
Paragraph (a): The Committee deleted proposed Paragraph (a)(2) as unnecessary because
of the Rules’ requirement that the lawyer withdraw, notify affected persons of the withdrawal and
disaffirm written statements will preclude the lawyer from assisting a client’s crime or fraud.
Paragraph (b): Modified text requires that lawyer “know” rather than have “substantial
reason to believe” that client will commit crime or fraud.
Paragraph (c): No change in substance. Restructured text recognizes difference between
situation in which lawyer is currently representing the client from the situation in which the lawyer
had previously but no longer is representing the client.
Made
1. On is own initiative, the Committee recommends some minor stylistic changes to
Paragraphs (b) and (c) intended to make the rule more user-friendly. The addition of the reference
to disaffirmance of opinions and other work product in Paragraph (b) was needed to cover the
situation in which the lawyer has prepared such work product prior to learning that the client
intends to commit a crime or fraud.
2. The Board of Professional Responsibility has requested the addition of a new Paragraph
(d) intended to clarify the relationship between Rule 4.1 and 1.6. With the addition of a new last
sentence to Comment [3], the Commission believes the Comments [3], [4], [5] and [6] adequately
explain the difference between the limited disclosure that is mandated by Rule 4.1 (so that the
lawyer will not assist the client commit the crime or fraud) and the disclosures that are permitted,
but not required, by Rules 1.6(b)(2) and (3) (to prevent a crime or to rectify a crime or fraud in
which the client has used the lawyer’s services).
PROPOSED RULE 4.2
COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized by law to do so.
[1] This Rule contributes to the proper functioning of the legal system by protectinga
person who has chosen to be represented by a lawyer in a matter against possible overreaching by
other lawyers who are participating in the matter, interference by those lawyers with the client-
lawyer relationship, and the uncounseled disclosure of information relating to the representation.
[2] This rule applies to communications with any person, whether or not a party to a formal
adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the
matter to which the communication relates. The Rule applies even though the represented person
initiates or consents to the communication. A lawyer must immediately terminate communication
with a person if, after commencing communication, the lawyer learns that the communication is not
permitted by this Rule.
[3] In the case of a represented organization, this Rule prohibits communications by a
lawyer for another person or entity concerning the matter in representation with a member of the
governing board, an officer or managerial agent or employee, or an agent or employee who
supervises or directs the organization’s lawyer concerning the matter, has authority to contractually
obligate the organization with respect to the matter, or otherwise participates substantially in the
determination of the organization’s position in the matter.
[4] If an agent or employee of an organization is represented in the matter by his or her own
counsel, consent by that counsel will be sufficient for purposes of this Rule. Nor is consent of the
organization’s lawyer required for communication with a former agent or employee.
See Rule 4.4 regarding the lawyer’s duty not to violate the organization’s legal rights by inquiring
about information protected by the organization’s attorney-client privilege or as work-product of
the organization’s lawyer. In communicating with a current or former agent or employee of an
organization, a lawyer shall not solicit or assist in the breach of any duty of confidentiality owed by
the agent to the organization. See Rule 4.4.
[5] This Rule does not prohibit communication with a represented person, or an employee
or agent of such a person, concerning matters outside the subject matter of the representation. For
example, the existence of a controversy between a government agency and a private party, or
between two private parties, does not prohibit a lawyer for either from communicating with
nonlawyers representatives of the other regarding a separate matter, such as additional or different
unlawful conduct. Nor does this Rule preclude a lawyer from communicating with a person who
seeks a second opinion about a matter in which the person is represented by another lawyer. Also,
parties to a matter may communicate directly with each other.
[6] Communications with represented persons may be authorized by specific constitutional
or statutory provisions, by rules governing the conduct of proceedings, or by applicable judicial
precedent or by court order. Communications authorized by law, for example, may include
communications by a lawyer on behalf of a client who is exercising a constitutional or other legal
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)
The Proposed Rule differs from DR 7-104(A)(1) to the extent that DR 7-104(A)(1) only
applies to communications with represented “parties.”This makes clear that the Rule applies prior
to institution of formal civil or criminal proceedings to which persons become parties. There are no
counterparts to the Comments in the Ethical Considerations, but Comment [3] is intended to be
consistent with Formal Ethics Opinions 83-F-46, 46(a), and 46(b). This Proposed Rule is also
consistent with the decision in Monceret v. Board of Professional Responsibility, 29 S.W.3d 455
(Tenn. 2000).
The text of the Rule is identical to ABA Model Rule 4.2. There is no counterpart to
Comment [1]. Comments [3] and [4] differ significantly from the Model Rule Comment that
specifies how the Rule applies to organizational clients. There are no counterparts in the Model
Rule to Comments [6] and [7].
In the Preliminary Draft, Proposed Rule 4.2 applied to represented "persons" in civil
matters and represented "parties" in criminal matters. The purpose of the differentiation between
civil and criminal matters was to permit prosecutors, in connection with law enforcement
investigations, to communicate directly with a represented person prior to arrest or indictment. The
Proposed Rule is now identical to the ABA Model Rule, and the issue of the application of the rule
to prosecutors is treated in new Comments [6] and [7], with the same substantive result.
In responding to concerns expressed by Tennessee prosecutors about this Proposed Rule,
the Committee amended the language of the first sentence of Comment [7] to clarify that the Rule