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
Proposed Rule 3.3(e) through (j). In case of client fraud or perjury by a client in a non-adjudicative
proceeding, then, the lawyer’s duty would entail non-disclosure and either a silent withdrawal or, in
some circumstances, a “noisy” withdrawal.
The Final Draft is identical to the Preliminary Draft except for the replacement of the
reference to a legislative and administrative “tribunal” with a reference to legislative “body” and
administrative “agency” and the addition of Comment [4] that highlights the cross-reference to
Rule 4.1.
Made
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.
a lawyer who is
representing a client in a nonadjudicative matter, a lawyer
theclient intends to perpetrate a crime or fraud, the lawyer shall promptly
advise the client to refrain fromengaging in the criminal or fraudulent conduct,
; and i
. If,
after such consultation, the lawyer knows that the client still intends to engage in the wrongful
conduct, the lawyer shall:
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 clientin the matter
that the lawyer reasonably
andconsult with the client about the
consequences of the client's failure to rectify the crime or fraud, and i
crime orfraud, 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
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
acceptable settlement of a claim are in this category, and so is the existence of an undisclosed
principal except where nondisclosure of the principal would constitute fraud.
Paragraphs(b) and (c) provide guidance for lawyers whofind themselves in the
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
the lawyer must advise the client to refrain from or to rectify the consequences of
the criminal or fraudulent actand,
. 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 certain
the lawyer's services to assist
theclient commit a
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 of the
.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 permitted
requiredto
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
his or her
theclient, 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, paragraph
(c)(2)
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 client's
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
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 unconcealed
[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
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
precedentor by court order. Communications authorized by law, for example, may include
