PREAMBLE

[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

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being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the
public interest because people are more likely to seek legal advice, and thereby heed their legal
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.

SCOPE

[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.

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[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 include authority concerning legal matters that

ordinarily reposes in the client

differ from those of lawyersin private client-lawyer relationships.
For example, a lawyer for a government agency mayin certain circumstances, the Attorney General
of Tennesseehavesauthority on behalf of the government to decide upon settlement or whether to
appeal from an adverse judgment. Such authority in various respects is generally vested in the

attorney general and the state's attorney in state government, and their federal counterparts, and the

Thesame may be true ofother government law officers. Also,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 employeesinintra governmental

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 do not

are not
intended toabrogate any such authoritythe 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

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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.

Comments Received After September 2000 Draft, Committee Response, and Changes
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.

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CHAPTER 1
CLIENT-LAWYER RELATIONSHIP

PROPOSED RULE 1.0
DEFINITIONS

(a) "Belief" or "Believes" denotes that the person involved actually supposed the fact in question to
be true. A person's belief may be inferred from circumstances.

(b) “Consents in Writing” or “Written Consent” denotes either (i) a written consent executed by
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 clientby means

reasonably calculated to reach the client.

(c) "Consult" or "Consultation" denotes communication of information reasonably sufficient to
permit the client to appreciate the significance of the matter in question.

(d) "Firm" or "Law Firm" denotes a lawyer or lawyers in a private firm, lawyers employed in the
legal department of a corporation, government agency, or other organization and lawyers employed
in a legal services organization. See Comment, Rule 1.10.

(e) "Fraud” or “Fraudulent" denotes an intentionally false or misleading statement of material fact,
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.

(f) "Knowingly," "Known," or "Knows" denotes actual awareness of the fact in question. A
person's knowledge may be inferred from circumstances.

(g) "Material" denotes something which a reasonable person would consider important in assessing
or determining how to act in a matter.

(h) “Partner” denotes a partner in a law firm organized as a partnership or professional limited
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 professional limited liability

partnership, or

a sole practitioner who employs other lawyers or nonlawyers in connection with his
or her practice.

(i) "Reasonable" or "Reasonably" when used in relation to conduct by a lawyer denotes the conduct
of a reasonably prudent and competent lawyer.

(j) "Reasonable belief'” or "Reasonably believes" when used in reference to a lawyer denotes

that the lawyer believes the matter in question and that the circumstances are such that the belief is
reasonable.

(k) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question.

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(l) "Substantial" denotes something that is not only material but also of clear and weighty
importance.

(m) "Tribunal" denotes a court or other adjudicative body.

COMMENT

[1]

In circumstances in which these rules require either consent in writing or written
consent, the requirement may be satisfied by an electronic transmission if

that is reasonably

calculated to reach the client, provided thatthe transmission can be reduced to writing or
permanently retained in electronic format.

COMMITTEE NOTES

Comparison To Current Tennessee Ethics Rules

There are no counterparts to these definitions in the Disciplinary Rules except as follows:
(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.

(m) Tribunal: This definition is the same as Disciplinary Rule Definition (8).

Comparison To ABA Model Rules

The definitions are identical to the Model Rule definitions except as follows:

(b)Consents in Writing:There is no counterpart in the Model Rules.

(e) Fraud or Fraudulent: The Model Rule defines these terms as denoting “conduct that has
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.

(g) Material: There is no definition of “material” in the Model Rules.

(h) Partner: The Model Rule definition of a “partner” is limited to “a member of a
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.

(l) Substantial: The definition has been slightly modified to highlight the relationship
between materiality (something a reasonable lawyer would consider important) and
substantiality (something that is of clear and weighty importance).

Changes Made to 1997 Committee Preliminary Draft In Response to Comments

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