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
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
government agency.
has been obtained under governmental authority and which, at the time this rule is applied, the
government is prohibited by law from disclosing to the public or has a legal privilege not to
disclose, and which is not otherwise available to the public.
[2] A lawyer representing a government agency, whether employed or specially retained by
the government, is subject to the Rules of Professional Conduct, including the prohibition against
representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule
1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations
regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which
the government agency may give consent under this Rule.
[3] Where the successive clients are a public agency and a private client, the risk exists that
power or discretion vested in public authority might be used for the special benefit of a private
client. A lawyer should not be in a position where benefit to a private client might affect
performance of the lawyer's professional functions on behalf of public authority. Also, unfair
advantage could accrue to the private client by reason of access to confidential government
information about the client's adversary obtainable only through the lawyer's government service.
However, the rules governing lawyers presently or formerly employed by a government agency
should not be so restrictive as to inhibit transfer of employment to and from the government. The
government has a legitimate need to attract qualified lawyers as well as to maintain high ethical
standards. The provisions for screening and waiver are necessary to prevent the disqualification rule
from imposing too severe a deterrent against entering public service.
[4] When the client is an agency of one government, that agency should be treated as a
private client for purposes of this Rule if the lawyer thereafter represents an agency of another
government, as when a lawyer represents a city and subsequently is employed by a federal agency.
[5] Paragraph (a)(2) does not require that a lawyer give notice to the government agency at a
time when premature disclosure would injure the client; a requirement for premature disclosure
might preclude engagement of the lawyer. Such notice is, however, required to be given as soon as
practicable in order that the government agency will have a reasonable opportunity to ascertain that
the lawyer is complying with Rule 1.11 and to take appropriate action if it believes the lawyer is not
complying.
[6] Paragraph (b) operates only when the lawyer in question has knowledge of the
information, which means actual knowledge; it does not operate with respect to information that
merely could be imputed to the lawyer.
[7] Paragraphs (a) and (c) do not prohibit a lawyer from jointly representing a private party
and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited
by law.
[8] Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in
question has become associated.
[9] In the absence of other law to the contrary, a government official or entity, like any other
client, may waive a conflict of interest under this Rule.
See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Firm”See Rule 1.0(d)
“Knowingly” and “Knows” See Rule 1.0(f)
“Material”See Rule 1.0(g)
“Reasonably”See Rule 1.0(i)
“Substantially”See Rule 1.0(l)
PROPOSED RULE 1.12
FORMER JUDGE OR ARBITRATOR
matter in which the lawyer participated personally and substantially as a judge or other adjudicative
officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after
consultation, in a writing or writings signed by all parties.
lawyer for a party in a matter in which the lawyer is participating personally and substantially as a
judge or other adjudicative officer, or arbitrator. A lawyer serving as a law clerk to a judge, other
adjudicative officer or arbitrator may negotiate for employment with a party or lawyer involved in a
matter in which the clerk is participating personally and substantially, but only after the lawyer has
notified the judge, other adjudicative officer or arbitrator.
associated may knowingly undertake or continue representation in the matter unless both the
disqualified lawyer and the lawyers representing the client in the matter have complied with the
requirements set forth in Rule 1.11(a)(1), (2) and (3) and advise the appropriate tribunal in writing
of the circumstances which warranted the utilization of the screening procedures required by this
rule and the actions which have been taken to comply with this rule.
prohibited from subsequently representing that party.
[1]This Rule generally parallels Rule 1.11. The term "personally and substantially"
signifies that a judge who was a member of a multi-member court, and thereafter left judicial office
to practice law, is not prohibited from representing a client in a matter pending in the court, but in
which the former judge did not participate. So also the fact that a former judge exercised
administrative responsibility in a court does not prevent the former judge from acting as a lawyer in
a matter where the judge had previously exercised remote or incidental administrative responsibility
that did not affect the merits. Compare the Comment to Rule 1.11. The term "adjudicative officer"
includes such officials as judges pro tempore, referees, special masters, hearing officers and other
parajudicial officers, and also lawyers who serve as part-time judges.
[2]The provisions of Rule 10 of the Rules of the Supreme Court of Tennessee, concerning
the Application of the Code of Judicial Conduct, provides that a part-time judge, judge pro tempore
or retired judge recalled to active service may not "act as a lawyer in any proceeding in which the
judge has served as a judge or in any other proceeding related thereto."Although phrased
differently from this Rule, those rules correspond in meaning.
See Rule 1.0(c)
“Firm”See Rule 1.0(d)
“Knowingly”See Rule 1.0(f)
“Substantially”See Rule 1.0(l)
“Tribunal”See Rule 1.0(m)
PROPOSED RULE 1.13
ORGANIZATIONAL CLIENTS
duly authorized constituents.
the organization has engaged or is engaged in action, has refused or refuses to act, or intends to act
or refrain from acting in a matter related to the representation that is or will be a violation of a legal
obligation to the organization, or a violation of law which reasonably might be imputed to the
organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed
as is reasonably necessary in the best interest of the organization. In determining how to proceed,
the lawyer shall give due consideration to the seriousness of the violation and its consequences, the
scope and nature of the lawyer's representation, the responsibility in the organization and the
apparent motivation of the person involved, the policies of the organization concerning such matters
and any other relevant considerations. Any measures taken shall be designed to minimize
disruption of the organization and the risk of revealing information relating to the representation to
persons outside the organization. Such measures may include among others:
appropriate authority in the organization; and
the seriousness of the matter, referral to the highest authority that can act on behalf of the
organization as determined by applicable law.
act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of
law and is likely to result in substantial injury to the organization, the lawyer maywithdraw in
accordance with Rule 1.16 and may make such disclosures of information relating to the
organization’s representation only to the extent permitted to do so by Rules 1.6 and 4.1.
constituents, a lawyer shall explain the identity of the client when it is or becomes apparent that the
organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7 and
2.2. If the organization's consent to the dual representation is required by Rule 1.7 or 2.2, the
consent shall be given by an appropriate official of the organization other than the individual who is
to be represented or by the shareholders.
[1] An organizational client is a legal entity, but it cannot act except through its officers,
directors, employees, shareholders and other constituents. Officers, directors, employees and
shareholders are the constituents of the corporate organizational client. The duties defined in this
Comment means the positions equivalent to officers, directors, employees and shareholders held by
persons acting for organizational clients that are not corporations.
[2] When one of the constituents of an organizational client communicates with the
organization's lawyer in that person's organizational capacity, the communication is protected by
Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate
allegations of wrongdoing, interviews made in the course of that investigation between the lawyer
and the client's employees or other constituents are covered by Rule 1.6. This does not mean,
however, that constituents of an organizational client are the clients of the lawyer. The lawyer may
not disclose to such constituents information relating to the representation except for disclosures
explicitly or impliedly authorized by the organizational client in order to carry out the representation
or as otherwise permitted by Rule 1.6.
[3] When constituents of the organization make decisions for it, the decisions ordinarily
must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning
policy and operations, including ones entailing serious risk, are not as such in the lawyer's province.
However, different considerations arise when the lawyer knows that the organization may be
substantially injured by action of a constituent that is in violation of law. In such a circumstance, it
may be reasonably necessary for the lawyer to ask the constituent to reconsider the matter. If that
fails, or if the matter is of sufficient seriousness and importance to the organization, it may be
reasonably necessary for the lawyer to take steps to have the matter reviewed by a higher authority
in the organization. Clear justification should exist for seeking review over the head of the
constituent normally responsible for it. The stated policy of the organization may define
circumstances and prescribe channels for such review, and a lawyer should encourage the
formulation of such a policy. Even in the absence of organization policy, however, the lawyer may
have an obligation to refer a matter to higher authority, depending on the seriousness of the matter
and whether the constituent in question has apparent motives to act at variance with the
organization's interest. Review by the chief executive officer or by the board of directors may be
required when the matter is of importance commensurate with their authority. At some point it may
be useful or essential to obtain an independent legal opinion.
[4] In an extreme case, it may be reasonably necessary for the lawyer to refer the matter to
the organization's highest authority. Ordinarily, that is the board of directors or similar governing
body. However, applicable law may prescribe that under certain conditions highest authority
reposes elsewhere; for example, in the independent directors of a corporation.
[5] The authority and responsibility provided in paragraph (b) are concurrent with the
authority and responsibility provided in other Rules. In particular, this Rule does not limit or
expand the lawyer's responsibility under Rules 1.6, 1.8, 1.16, 3.3 or 4.1. If the lawyer's services are
being used by an organization to further a crime or fraud by the organization, Rule 1.2(d) can be
applicable. The lawyer’s right to withdraw from the representation of an organizational client in the
circumstances specified in paragraph (c) is in addition to the right to withdraw in the various
circumstances specified in Rule 1.16(b).
[6] The duty defined in this Rule applies to governmental organizations. However, when the
client is a governmental organization, a different balance may be appropriate between maintaining