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
229-231
See Rule 1.0(j)
“Consents in Writing”See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Materially”See Rule 1.0(g)
DR 5-101(A) provides that, "[e]xcept with the consent of his client after full disclosure, a
lawyer shall not accept employment if the exercise of his professional judgment on behalf of the
client will be or reasonably may be affected by his own financial, business, property, or personal
interests." DR 5-105(A) provides that a lawyer "shall decline proffered employment if the exercise
of his independent professional judgment in behalf of a client will be or is likely to be adversely
affected by the acceptance of the proffered employment, or if it would be likely to involve him in
representing differing interests, except to the extent permitted under DR 5-105(C)." DR 5-105(C)
provides that "a lawyer may represent multiple clients if it is obvious that he can adequately
represent the interest of each and if each consents to the representation after full disclosure of the
possible effect of such representation on the exercise of his independent professional judgment on
behalf on each."
The Proposed Rule is identical to ABA Model Rule 1.7, except for its requirement of
written consents to waive conflicts of interest.
Paragraph (a): The cross-reference to Rule 2.2 was dropped. The relationship between Rule
1.7 and Rule 2.2 is discussed in the Comment.
Comment [6] has been added to clarify that the Rule does not preclude government clients
from giving consent to a representation involving a conflict of interest.
Comment [7] has been added to explain the requirement that the client’s consent to a
conflict of interest be in writing.
Comments [18] through [21] were added to explain the relationship between the
confidentiality duties in Rule 1.6 and the conflict of interest rules.
Made
1. In response to suggestions from the TBA Tax, Probate, and Trust Law Section, the
Committee proposes changes to Comments [15], [18], and [22] for the purpose of clarifyingthe
applicability of this Rule to the joint representation of family members and explaining the
relationship between Rule 1.7, which is applicable to a joint representation in connection with a
gratuitous transfer, and Rule 2.2, which is applicable to quid pro quo exchanges between clients
who are jointly represented by a single lawyer acting as an intermediary between the clients.
2. The Committee proposes a modification to Comment [20] for the purpose of clarifying
that the waiver of confidentiality that is normally a prerequisite for a joint representation can be
revoked at any time prior to a lawyer’s disclosure, that the lawyer will be required to respect the
demand for confidentiality, and that, in such a situation, the lawyer will normally have to withdraw
from the joint representation. This change confirms the rejection by the Committee of a request
from the TBA Tax, Probate, and Trust Law Section for a modification of Comment [20] to indicate
that a client’s waiver of confidentiality in connection with a joint representation is irrevocable.
Although recognizing that clients can waive the protections of Rule 1.6, the Committee believes that
confidentiality is too important to allow, much less require, irrevocable waivers. Also, such
irrevocable waivers should not be permitted because it is unlikely that the client will be able at the
time of the waiver to foresee all future circumstances in which the waiver might adversely affect
his/her interests. The Committee’s view is consistent with its position that clients must retain the
power to revoke authority they have previously given a lawyer to take action on their behalf. See
Rule 1.2, Comment [4].
3. The Board of Professional Responsibility has asked the Court to amend paragraphs (a)
and (b) so that a lawyer may not ask a client to consent to a conflict of interest unless “it is
obvious” that the relationship with the client or the representation will not be affected by the
conflict of interest. This is the standard currently used in DR 5-105(C). The Committee’s
proposal permits the lawyer to seek client consent if the lawyer “reasonably believes” that the
relationship with the client or the representation will not be adversely affected. “Reasonably
believes” is a defined term and denotes that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable. See Rule 1.0(j). Reasonableness is determined
from the perspective of a reasonably prudent and competent lawyer. See Rule 1.0(i). The Board
argues that its version is “clearer,” “more enforceable,” and “more protective of the public
interest.”The Committee respectfully disagrees.
The Board’s proposal would create confusion, rather than add clarity, because it would
introduce a new, undefined term into a document that employs an interrelated set of defined terms to
specify the “scienter” element in the each of the rules. Also, as Proposed Rule 1.7 has been very
widely adopted by other jurisdictions, the change proposed by the Board would be inconsistent with
the Committee’s goal of promoting uniformity among state ethics rules. This need for uniformity
is particularly acute with respect to this central conflict of interest rule. With respect to ease of
enforcement, the Committee does not see how it will be easier to prove what is obvious to a
reasonable lawyer that it will be to prove what a reasonable lawyer would conclude under the
circumstances. In either case, the Court must determine what the reasonable lawyer would ascertain
under the circumstances. That one standard may be stricter than the other does not mean that it will
be easier to prove that the standard has been violated. Finally, with respect to the Board’s
argument that its proposal will be “more protective of the public,” the Committee acknowledges
that Proposed Rule 1.7 will permit clients to give their consent to a joint representation in some
circumstances in which they would not be allowed to do so if the Board’s proposal were adopted.
Such added protection, however, comes at a high price. The price is therestriction on the client’s
freedom to retain counsel of their choice. The Committee believes that that Proposed Rule 1.7, with
its focus on the lawyer’s reasonable belief that neither the relationship with the client nor the
representation will be adversely affected, affords clients the protection they need without unduly
restricting their freedom to consent, after consultation, to a representation affected by a conflict of
interest.
4. The Attorney General has voiced concern that Rule 1.7 may be inconsistent with his
statutory responsibilities with respect to the representation of the State, its agencies, and officers.
The Committee believes that it has adequately addressed this issue by its revision of Scope,
state agencies and employees when the conflict of interest rules would prohibit other lawyers from
doing so should be resolved as a matter of law, rather than by creating exceptions in the ethics rules.
5. The Tennessee District Attorneys General Conference and the United States Attorneys
have requested that a new paragraph (c) to added to Rule 1.7 that would prohibit the representation
of more than one client in a criminal case unless the lawyer affirmatively shows to the tribunal that
no conflict exists or will exist. Although the Committee has recognized in Comment [9] that “the
potential for conflict of interest in a criminal case is so grave that ordinarily a lawyer should decline
to represent more than one defendant,” the Committee is strongly opposed to conditioning such
joint representation on an affirmative demonstrationto the court that there is no conflict of interest
or no likelihood that a conflict of interest will materialize. In the first place, the imposition of such a
special duty implies that criminal defense attorneys are less likely than other lawyersto
conscientiously comply with the conflict of interest rules. The Committee does not believe that to
be the case. Second, it very difficult to affirmatively prove a negative proposition, and to do so the
lawyer would have to prematurely reveal her defense strategy or other information relating to the
representation. The Committee does not believes that it is appropriate to force a criminal defendant
to make a choice between a joint representation and the premature disclosure of information relating
the defense. Third, if there is a need for judicial approval of joint representation in criminal cases,
the Committee believes that such a requirement should be imposed by the Rules of Criminal
Procedure rather than the Rules of Professional Conduct. Finally, for many years, the Tennessee
Supreme Court has wisely avoided adopting such per se rules concerning lawyer conflicts of
interest, see, e.g., State v. Jones (In re Banks), 726 S.W.2d 515 (Tenn. 1987); In re Petition of
Youngblood, 895 S.W.2d 322 (Tenn. 1995, and declining to enshrine such a rule of law in the
black letter of Tennessee’s ethics rules would be consistent with this tradition.
PROPOSED RULE 1.8
CONFLICT OF INTEREST:PROHIBITED TRANSACTIONS
ownership, possessory, security or other pecuniary interest adverse to a client unless:
reasonable to the client and are fully disclosed and transmitted in writing to the client
in a manner which can be reasonably understood by the client; and
the transaction; and
the client, unless the client consents after consultation, except as otherwise permitted or required by
Rule 1.6 or Rule 3.3.
parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift,
except where the client is related to the donee.
agreement giving the lawyer literary or media rights to a portrayal or account based in substantial
part on information relating to the representation.
contemplated litigation, except that:
may be contingent on the outcome of the matter; and
litigation on behalf of the client.
or with the client-lawyer relationship; and
1.6.
settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to
guilty or nolo contendere pleas, unless:
counsel in the transaction; and
and nature of all the claims or pleas involved and of the participation of each person in the
settlement.
enter into an agreement with a prospective, current, or former client to
prospectively limit the lawyer’s liability to the client for malpractice; and
shall not settle a claim for such liability, unless:
the client is represented in the matter by independent counsel; or
manner which can reasonably be understood by the client, advises the client
to seek the advice of independent counsel, and affords the client a reasonable
opportunity to do so.
in a representation directly adverse to a person whom the lawyer knows is represented by the other
lawyer except upon consent by
the clientconsents in writingafter consultation regarding the
A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except that the lawyer may:
[1] As a general principle, all transactions between client and lawyer should be fair and
reasonable to the client. In such transactions a review by independent counsel on behalf of the client
is often advisable. Furthermore, a lawyer may not exploit information relating to the representation
to the client's disadvantage. For example, a lawyer who has learned that the client is investing in
specific real estate may not, without the client's consent, seek to acquire nearby property where
doing so would adversely affect the client's plan for investment. Paragraph (a) does not, however,
apply to standard commercial transactions between the lawyer and the client for products or services
that the client generally markets to others, for example, banking or brokerage services, medical
services, products manufactured or distributed by the client, and utilities services. In such
transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph
(a) are unnecessary and impracticable.
[2] A lawyer may accept a gift from a client, if the transaction meets general standards of
fairness. For example, a simple gift such as a present given at a holiday or as a token of
appreciation is permitted. If effectuation of a substantial gift requires preparing a legal instrument
such as a will or conveyance, however, the client should have the detached advice that another lawyer
can provide. Paragraph (c) recognizes an exception where the client is a relative of the donee or the
gift is not substantial.
[3]An agreement by which a lawyer acquires literary or media rights concerning the
conduct of the representation creates a conflict between the interests of the client and the personal
interests of the lawyer. Measures suitable in the representation of the client may detract from the
publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer
representing a client in a transaction concerning literary property from agreeing that the lawyer's fee
shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and
paragraph (j).
[4] Rule 1.8(f) requires disclosure of the fact that the lawyer's services are being paid for by
a third party. Such an arrangement must also conform to the requirements of Rule 1.6 concerning
be obtained on behalf of the class by court-supervised procedure.
[5] Paragraph (h) is not intended to apply to customary qualifications and limitations in
legal opinions and memoranda.
[6] Rule 1.8(i) applies to “related” lawyers who are in different firms. Related lawyers in
the same firm are governed by Rules 1.7, 1.9, and 1.10. The disqualification stated in Rule 1.8(i) is
personal and is not imputed to members of firms with whom the lawyers are associated. See Rule
1.10.
[7]Paragraph (j) states the traditional general rule that lawyers are prohibited from
acquiring a proprietary interest in litigation. This general rule, which has its basis in common law
champerty and maintenance, is subject to specific exceptions developed in decisional law and
continued in these Rules, such as the exception for reasonable contingent fees set forth in Rule 1.5
and the exception for certain advances of the costs of litigation set forth in paragraph (E).
See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Knowingly” and “Knows”See Rule 1.0(f)
“Reasonable” and “Reasonably” See Rule 1.0(i)
“Substantial”See Rule 1.0(l)
Paragraph (a):DR 5-104(A) provides that a lawyer "shall not enter into a business
transaction with a client if they have differing interests therein and if the client expects the lawyer to
exercise his professional judgment therein for the protection of the client, unless the client has
consented after full disclosure." EC 5-3 states that a lawyer "should not seek to persuade his client
to permit him to invest in an undertaking of his client nor make improper use of his professional
relationship to influence his client to invest in an enterprise in which the lawyer is interested."
Paragraph (b):DR 4-101(B)(2) similarly provides that a lawyer “shall not knowingly use a
confidence or secret of a client to the disadvantage of the client.”
The Committee rejected a proposal that would prohibit the lawyer from using information
relating to the representation to the advantage of the lawyer or a third person. DR 4-101(B)(3), on
the other hand, currently provides that a lawyer should not use "a confidence or secret of a client for
the advantage of the lawyer, or of a third person, unless the client consents after full disclosure."