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OFFICIAL
2018
CONNECTICUT PRACTICE BOOK
(Revision of 1998)
CONTAINING
RULES OF PROFESSIONAL CONDUCT
CODE OF JUDICIAL CONDUCT
RULES FOR THE SUPERIOR COURT
RULES OF APPELLATE PROCEDURE
APPENDIX OF FORMS
INDEX OF OFFICIAL JUDICIAL BRANCH FORMS
Published by
The Commission on Official Legal Publications
Copyrighted by the Secretary of the State of the State of Connecticut
2018 by the Secretary of the State, State of Connecticut
EXPLANATORY NOTES
The Superior Court Rules as organized herein were first published in the Connecticut Law
Journal dated July 29, 1997. This 2018 edition of the Practice Book contains amendments
to the Superior Court Rules, Rules of Appellate Procedure, and Appendix of Forms. The
amendments were published in the Connecticut Law Journals dated April 4, July 4, August
8, and October 24, 2017.
A parenthetical notation about the origin of each rule is found at the end of every section
in this volume. The notation (P.B. 1978-1997, Sec. ) indicates the number of the section
in the 1978-1997 Practice Book corresponding to the current section. Current numbers of
any sections corresponding to the sections in the 1978-1997 Practice Book appear in the
Reference Tables following the text of the rules. The notation (1998) indicates that the section
was new in the 1998 Practice Book, taking effect October 1, 1997. The notation (See P.B.
1978-1997, Sec. ) (1998) indicates that the section was modeled on a rule in the 1978-
1997 Practice Book but was actually adopted for the first time to take effect October 1, 1997.
There may be significant differences between the rules in this volume and those in the
1978-1997 Practice Book on which they were modeled. The temporary numbers assigned to
those rules in the July 29, 1997 Connecticut Law Journal, where they were originally published,
appear in the Reference Tables following the text of the rules.
Where a section was adopted or amended after 1997, a parenthetical notation to that effect
appears either immediately following the text of the section or following the parenthetical
notation concerning the derivation of the section. Where the title to a section has been
amended, a parenthetical notation appears immediately following the title. The Table of
Practice Book Changes, following the text of the rules, documents the dates on which rules
were adopted, repealed, amended, or transferred to another section.
Histories describing the nature of amendments and Commentaries indicating the intended
purpose of new rules or amendments to existing rules are printed following the text of new
or amended rules. Histories and Commentaries are included for only those rules that were
adopted or amended to take effect in the year corresponding to the current edition of the
Practice Book, with the following exceptions: (1) the Histories and Commentaries to the rules
on sealing of files and closure of the courtroom will be retained on a cumulative basis; (2)
the 2014 Commentary to Section 1-10B and the 2017 Commentary to Section 2-27A have
been retained; and (3) Commentaries to certain sections of the Rules of Appellate Procedure
have been retained. Users wanting to access the Histories documenting rule changes and
Commentaries to new or amended rules, in a given year, should not discard the corresponding
edition of the Practice Book. For example, Histories and Commentaries corresponding to rule
changes to take effect January 1, 2018, will appear only in the 2018 edition of the Practice Book
and not in subsequent editions, unless the rule falls into one of the exceptions, listed previously.
The Commentaries to the rules of practice are included in this volume for informational
purposes only. Commentaries to those rules are not adopted by the Judges and Justices
when they vote to adopt proposed rule changes. Commentaries to the Rules of Professional
Conduct and Code of Judicial Conduct are adopted by the Judges and Justices and are
printed in every edition of the Practice Book.
Beginning in 2000, Amendment Notes were incorporated into the Rules of Professional
Conduct and the Code of Judicial Conduct. Those notes, approved by the Rules Committee
of the Superior Court to explain the revisions to the Rules of Professional Conduct and Code
of Judicial Conduct, appear only in the edition of the Practice Book corresponding to the year
of the revision and not in subsequent editions.
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The system used to number each section is based on the chapter in which the section is
located. Each section has a two part number. The first part of the number designates the
chapter, and the second part designates the number of the section within that chapter. (Chapter
1 begins with 1-1, chapter 2 with 2-1, etc.) The internal breakdown of individual rules follows
the style of the General Statutes. Subsections are designated by lower case letters in parenthe-
ses, (a), (b), subdivisions are designated by numbers in parentheses, (1), (2), and subpara-
graphs are designated by upper case letters in parentheses, (A), (B).
The Rules of Appellate Procedure, as well as the Superior Court Rules, were reorganized
in 1998. The reorganization of the Rules of Appellate Procedure was completed subsequent
to the publication of the July 29, 1997 Connecticut Law Journal and was published in this
volume for the first time in 1998. The goal in reorganizing the Rules of Appellate Procedure
was to present them in the order in which an appellant might approach the appeal process,
i.e., rules on whether to appeal, how to file, what to do next, when argument will take place,
opinions and reargument. Rules on various special proceedings were organized into separate
chapters. No substantive changes were made in the course of reorganization, but there were
editorial changes.
Two versions of certain Rules of Appellate Procedure pertaining to the preparation of the
appellate record were published in the 2014, 2015, and 2016 editions of the Practice Book.
A parenthetical indicated whether the rule was applicable to appeals filed before July 1, 2013,
or applicable to appeals filed on or after July 1, 2013. Only one version of those rules is
included in this edition, and the parenthetical has been removed. The appellate clerk’s office
can provide guidance regarding appeals filed before July 1, 2013.
In 2002, an Appendix was added following the Index. The Appendix contains certain forms
that previously had been in Volume 2 of the 1978-1997 Practice Book. In 2010, an Index of
Official Judicial Branch Forms used in Civil, Family and Juvenile Matters was added to the
Practice Book, following the Appendix of Forms. In 2012, the Appendix of Superior Court
Standing Orders, which was added in 2010, was removed. A notice referring the reader to
the Judicial Branch website for access to the Superior Court Standing Orders was substituted
in its place. In 2018, the Index of Official Judicial Branch Forms Used in Civil, Family and
Juvenile Matters was removed. A notice referring the reader to the Judicial Branch website
for access to official Judicial Branch forms was substituted in its place.
Effective January 1, 2003, the rules pertaining to procedure in juvenile matters were
amended and reorganized. The amendments initially were published in the Connecticut Law
Journal of July 23, 2002. The July 23, 2002 Connecticut Law Journal gave notice that the
rules on juvenile matters, which, since 1998, had been found in chapters 26 through 35, had
been moved to chapters 26a through 35a. In the Practice Book itself, however, the original
numbers of the juvenile rules were retained wherever possible.
Every year certain nonsubstantive, technical editorial changes are made to a number of
the rules. Some, but not all, of these changes are explained in Technical Change notes.
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TABLE OF CONTENTS
Attorney’sOath............................................. 1
Rules of Professional Conduct
Preamble................................................. 1
Scope .................................................. 2
RulesandCommentaries ....................................... 4
Code of Judicial Conduct
Preamble................................................. 65
Scope .................................................. 65
Terminology............................................... 66
Application................................................ 67
Canons,RulesandComments .................................... 68
Superior Court Rules and Rules of Appellate Procedure
Chapter and Section Headings of the Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Superior Court—General Provisions
Chapter1ScopeofRules....................................... 102
Chapter2Attorneys........................................... 112
Chapter3Appearances ........................................ 163
Chapter4Pleadings .......................................... 169
Chapter5Trials............................................. 171
Chapter6Judgments.......................................... 173
Chapter 7 Clerks; Files and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Superior Court—Procedure in Civil Matters
Chapter 8 Commencement of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Chapter9Parties............................................ 183
Chapter10Pleadings.......................................... 189
Chapter 11 Motions, Requests, Orders of Notice, and Short Calendar . . . . . . . . . . . . . . 201
Chapter12TransferofActions .................................... 210
Chapter 13 Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Chapter 14 Dockets, Trial Lists, Pretrials and Assignment Lists . . . . . . . . . . . . . . . . . . 231
Chapter 15 Trials in General; Argument by Counsel . . . . . . . . . . . . . . . . . . . . . . . . 238
Chapter16JuryTrials......................................... 240
Chapter17Judgments......................................... 246
Chapter18FeesandCosts...................................... 258
Chapter19References......................................... 261
Chapter20HearingsinChambers .................................. 265
Chapter21Receivers.......................................... 266
Chapter 22 Unemployment Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
Chapter 23 Miscellaneous Remedies and Procedures . . . . . . . . . . . . . . . . . . . . . . . 272
Chapter24SmallClaims........................................ 282
Superior Court—Procedure in Family Matters
Chapter25GeneralProvisions .................................... 289
Superior Court—Procedure in Family Support Magistrate Matters
Chapter 25a Family Support Magistrate Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Superior Court—Procedure in Juvenile Matters
Chapter26GeneralProvisions .................................... 319
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Chapter 27 Reception and Processing of Delinquency and Family with Service Needs Com-
plaintsorPetitions......................................... 322
Chapter 28 Delinquency and Family with Service Needs Nonjudicial Supervision [Repealed] . 325
Chapter 29 Reception and Processing of Delinquency and Child from Family with Service Needs
Petitions and Delinquency Informations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
Chapter30Detention.......................................... 327
Chapter 30a Delinquency and Family with Service Needs Hearings. . . . . . . . . . . . . . . . 331
Chapter 31 Delinquency and Family with Service Needs Hearing [Repealed] . . . . . . . . . . 334
Chapter 31a Delinquency and Family with Service Needs Motions and Applications . . . . . . 335
Chapter 32 Neglected, Uncared for and Dependent Children and Termination of Parental Rights
[Repealed]............................................. 341
Chapter 32a Rights of Parties, Neglected, Abused and Uncared for Children and Termination
ofParentalRights......................................... 342
Chapter 33 Hearings concerning Neglected, Uncared for and Dependent Children and Termina-
tion of Parental Rights [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
Chapter 33a Petitions for Neglect, Uncared for, Dependency and Termination of Parental Rights:
Initiation of Proceedings, Orders of Temporary Custody and Preliminary Hearings . . . . . 346
Chapter 34 Rights of Parties [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Chapter 34a Pleadings, Motions and Discovery Neglected, Abused and Uncared for Children
and Termination of Parental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Chapter 35 General Provisions [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Chapter 35a Hearings concerning Neglected, Abused and Uncared for Children and Termination
ofParentalRights......................................... 357
Superior Court—Procedure in Criminal Matters
Chapter 36 Procedure Prior to Appearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
Chapter37Arraignment........................................ 370
Chapter38PretrialRelease...................................... 373
Chapter 39 Disposition without Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Chapter 40 Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
Chapter41PretrialMotions...................................... 394
Chapter42TrialProcedure ...................................... 398
Chapter 43 Sentencing, Judgment, and Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
Chapter44GeneralProvisions .................................... 419
Rules of Appellate Procedure
Chapter 60 General Provisions Relating to Appellate Rules and Appellate Review . . . . . . . 427
Chapter61RemedybyAppeal.................................... 431
Chapter 62 Chief Judge, Appellate Clerk and Docket: General Administrative Matters . . . . . 440
Chapter 63 Filing the Appeal; Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
Chapter 64 Procedure concerning Memorandum of Decision . . . . . . . . . . . . . . . . . . . 452
Chapter65TransferofCases..................................... 453
Chapter 66 Motions and Other Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454
Chapter67Briefs............................................ 459
Chapter68CaseFile.......................................... 467
Chapter 69 Assignment of Cases for Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
Chapter 70 Arguments and Media Coverage of Court Proceedings . . . . . . . . . . . . . . . . 470
Chapter 71 Appellate Judgments and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . 473
Chapter72WritsofError........................................ 475
Chapter73Reservations........................................ 477
Chapter 74 Decisions of Judicial Review Council . . . . . . . . . . . . . . . . . . . . . . . . . . 478
Chapter 75 Appeals from Council on Probate Judicial Conduct . . . . . . . . . . . . . . . . . . 480
Chapter 76 Appeals in Workers’ Compensation Cases . . . . . . . . . . . . . . . . . . . . . . . 481
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Chapter 77 Procedures concerning Court Closure and Sealing Orders or Orders Limiting the
Disclosure of Files, Affidavits, Documents or Other Material . . . . . . . . . . . . . . . . . 483
Chapter 78 Review of Grand Jury Record or Finding Order . . . . . . . . . . . . . . . . . . . . 485
Chapter 78a Review of Orders concerning Release on Bail . . . . . . . . . . . . . . . . . . . . 486
Chapter 79 Appeals in Juvenile Matters [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . 487
Chapter 79a Appeals in Child Protection Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Chapter 80 Appeals in Habeas Corpus Proceedings Following Conviction . . . . . . . . . . . . 492
Chapter 81 Appeals to Appellate Court by Certification for Review in Accordance with General
StatutesChapters124and440 ................................. 493
Chapter 82 Certified Questions to or from Courts of Other Jurisdictions . . . . . . . . . . . . . 495
Chapter 83 Certification Pursuant to General Statutes § 52-265a in Cases of Substantial Public
Interest............................................... 497
Chapter 84 Appeals to Supreme Court by Certification for Review . . . . . . . . . . . . . . . . 498
Chapter 84a Matters within Supreme Court’s Original Jurisdiction in which Facts May Be Found 501
Chapter85Sanctions.......................................... 502
Chapter 86 Rule Changes; Effective Date; Applicability. . . . . . . . . . . . . . . . . . . . . . . 503
Tables and Index
Reference Table 1978-1997 to 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Reference Table 1998 to 1978-1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518
TableofPracticeBookChanges ................................... 529
TableofStatutesNoted ........................................ 544
Index................................................... 547
Appendix:Forms............................................ 581
OfficialJudicialBranchForms..................................... 639
SuperiorCourtStandingOrders.................................... 640
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RULES OF PROFESSIONAL CONDUCT
THE ATTORNEY’S OATH
You solemnly swear or solemnly and sincerely affirm, as the case may be, that you will do
nothing dishonest, and will not knowingly allow anything dishonest to be done in court, and
that you will inform the court of any dishonesty of which you have knowledge; that you will not
knowingly maintain or assist in maintaining any cause of action that is false or unlawful; that
you will not obstruct any cause of action for personal gain or malice; but that you will exercise
the office of attorney, in any court in which you may practice, according to the best of your
learning and judgment, faithfully, to both your client and the court; so help you God or upon
penalty of perjury. (General Statutes § 1-25 and annotations.)
(Amended pursuant to Public Act 02-71 to take effect Oct. 1, 2002.)
RULES OF PROFESSIONAL CONDUCT
Preamble
Scope
Rules
Commentaries
Preamble: A Lawyer’s Responsibilities
A lawyer, as a member of the legal profession,
is a representative of clients, an officer of the
legal system and a public citizen having special
responsibility for the quality of justice.
As a representative of clients, a lawyer per-
forms various functions. As advisor, a lawyer pro-
vides 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 nego-
tiator, a lawyer seeks a result advantageous to the
client but consistent with requirements of honest
dealing with others. As evaluator, a lawyer exam-
ines a client’s legal affairs and reports about them
to the client or to others on the client’s behalf.
In addition to these representational functions,
a lawyer may serve as a third-party neutral, a
nonrepresentational role helping the parties to
resolve a dispute or other matter. Some of these
Rules apply directly to lawyers who are or have
served as third-party neutrals. See, e.g., Rules
1.12 and 2.4. In addition, there are Rules that
apply to lawyers who are not active in the practice
of law or to practicing lawyers even when they
are acting in a nonprofessional capacity. For
example, a lawyer who commits fraud in the con-
duct of a business is subject to discipline for
engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation. See Rule 8.4.
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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 confi-
dence 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.
A lawyer’s conduct should conform to the
requirements of the law, both in professional ser-
vice 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 offi-
cial action, it is also a lawyer’s duty to uphold
legal process.
As a public citizen, a lawyer should seek
improvement of the law, access to the legal sys-
tem, 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. All
lawyers should work to ensure equal access to
our system of justice for all those who, because
of economic or social barriers, cannot afford or
RULES OF PROFESSIONAL CONDUCT
secure adequate legal counsel. A lawyer should
aid the legal profession in pursuing these objec-
tives and should help the bar regulate itself in the
public interest.
Many of a lawyer’s professional responsibilities
are prescribed in the Rules of Professional Con-
duct, 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.
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 being
done. So also, a lawyer can be sure that preserv-
ing client confidences ordinarily serves the public
interest because people are more likely to seek
legal advice, and thereby heed their legal obliga-
tions, when they know their communications will
be private.
In the nature of law practice, however, conflict-
ing 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 ethical person while earning a
satisfactory living. The Rules of Professional Con-
duct often prescribe terms for resolving such con-
flicts. Within the framework of these Rules,
however, many difficult issues of professional dis-
cretion can arise. Such issues must be resolved
through the exercise of sensitive professional and
moral judgment guided by the basic principles
underlying the Rules. These principles include the
lawyer’s obligation zealously to protect and pur-
sue a client’s legitimate interests, within the
bounds of the law, while maintaining a profes-
sional, courteous and civil attitude toward all per-
sons involved in the legal system.
The legal profession is largely self-governing.
Although other professions also have been
granted powers of self-government, the legal pro-
fession 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 ulti-
mate authority over the legal profession is vested
largely in the courts.
To the extent that lawyers meet the obligations
of their professional calling, the occasion for gov-
ernment regulation is obviated. Self-regulation
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also helps maintain the legal profession’s inde-
pendence from government domination. An inde-
pendent 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.
The legal profession’s relative autonomy car-
ries with it special responsibilities of self-govern-
ment. 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 law-
yer 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.
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 Con-
duct, when properly applied, serve to define
that relationship.
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
Scope
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 disci-
pline. Others, generally cast in the term ‘‘may,’’
are permissive and define areas under the Rules
in which the lawyer has discretion to exercise pro-
fessional judgment. 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 pro-
fessional role.
The Rules presuppose a larger legal context
shaping the lawyer’s role. That context includes
court rules and statutes relating to matters of licen-
sure, 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 under-
standing and voluntary compliance, secondarily
upon reinforcement by peer and public opinion
and finally, when necessary, upon enforcement
through disciplinary proceedings. The Rules do
RULES OF PROFESSIONAL CONDUCT
not, however, exhaust the moral and ethical con-
siderations 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.
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 rela-
tionship 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
attach when the lawyer agrees to consider
whether a client-lawyer relationship shall be
established. See Rule 1.18. Whether a client-law-
yer relationship exists for any specific purpose
can depend on the circumstances and may be a
question of fact.
Under various legal provisions, including con-
stitutional, statutory and common law, the respon-
sibilities of government lawyers may include
authority concerning legal matters that ordinarily
reposes in the client in private client-lawyer rela-
tionships. For example, a lawyer for a government
agency may have authority on behalf of the gov-
ernment to decide upon settlement or whether to
appeal from an adverse judgment. Such authority
in various respects is generally vested in the attor-
ney general and the state’s attorney in state gov-
ernment, and their federal counterparts, and the
same may be true of other government law offi-
cers. Also, lawyers under the supervision of these
officers may be authorized to represent several
government agencies in intragovernmental legal
controversies in circumstances where a private
lawyer could not represent multiple private clients.
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 abrogate any such authority.
Failure to comply with an obligation or prohibi-
tion 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 circum-
stances 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 incom-
plete 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 wilfulness and seriousness of the
violation, extenuating factors and whether there
have been previous violations.
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Violation of a Rule should not itself give rise to
a cause of action against a lawyer nor should it
create any presumption that a legal duty has been
breached. In addition, violation of a Rule does
not necessarily warrant any other nondisciplinary
remedy, such as disqualification of a lawyer in
pending litigation. The Rules are designed to pro-
vide guidance to lawyers and to provide a struc-
ture 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 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. Nevertheless, since the Rules do
establish standards of conduct by lawyers, a law-
yer’s violation of a Rule may be evidence of
breach of the applicable standard of conduct.
Moreover, these Rules are not intended to gov-
ern or affect judicial application of either the attor-
ney-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 confi-
dence does not vitiate the proposition that, as a
general matter, the client has a reasonable expec-
tation 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.
The lawyer’s exercise of discretion not to dis-
close information under Rule 1.6 should not be
subject to reexamination. Permitting such reex-
amination would be incompatible with the general
policy of promoting compliance with law through
assurances that communications will be protected
against disclosure.
The Commentary accompanying each Rule
explains and illustrates the meaning and purpose
of the Rule. The Preamble and this note on Scope
provide general orientation. The Commentaries
are intended as guides to interpretation, but the
text of each Rule is authoritative. Commentaries
do not add obligations to the Rules but provide
RULES OF PROFESSIONAL CONDUCT
guidance for practicing in compliance with the
Rules. The Commentaries are sometimes used
to alert lawyers to their responsibilities under other
law, such as court rules and statutes relating to
RULES OF PROFESSIONAL CONDUCT
Rule Rule
1.0. Terminology
Client-Lawyer Relationships
1.1. Competence
1.2. Scope of Representation and Allocation of Authority
between Client and Lawyer
1.3. Diligence
1.4. Communication
1.5. Fees
1.6. Confidentiality of Information
1.7. Conflict of Interest: Current Clients
1.8. Conflict of Interest: Prohibited Transactions
1.9. Duties to Former Clients
1.10. Imputation of Conflicts of Interest: General Rule
1.11. Special Conflicts of Interest for Former and Current
Government Officers and Employees
1.12. Former Judge, Arbitrator, Mediator or Other Third-
Party Neutral
1.13. Organization as Client
1.14. Client with Impaired Capacity
1.15. Safekeeping Property
1.16. Declining or Terminating Representation
1.17. Sale of Law Practice
1.18. Duties to Prospective Client
Counselor
2.1. Advisor
2.2. Intermediary [Repealed]
2.3. Evaluation for Use by Third Persons
2.4. Lawyer Serving as Third-Party Neutral
Advocate
3.1. Meritorious Claims and Contentions
3.2. Expediting Litigation
3.3. Candor toward the Tribunal
3.4. Fairness to Opposing Party and Counsel
3.5. Impartiality and Decorum
3.6. Trial Publicity
3.7. Lawyer as Witness
3.8. Special Responsibilities of a Prosecutor
Rule 1.0. Terminology
(a) ‘‘Belief’’ or ‘‘believes’’ denotes that the per-
son involved actually supposed the fact in ques-
tion to be true. A person’s belief may be inferred
from circumstances.
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matters of licensure, laws defining specific obliga-
tions of lawyers and substantive and procedural
law in general.
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
3.9. Advocate in Nonadjudicative Proceedings
Transactions with Persons Other than Clients
4.1. Truthfulness in Statements to Others
4.2. Communication with Person Represented by Counsel
4.3. Dealing with Unrepresented Person
4.4. Respect for Rights of Third Persons
Law Firms and Associations
5.1. Responsibilities of Partners, Managers, and Supervi-
sory Lawyers
5.2. Responsibilities of a Subordinate Lawyer
5.3. Responsibilities regarding Nonlawyer Assistance
5.4. Professional Independence of a Lawyer
5.5. Unauthorized Practice of Law
5.6. Restrictions on Right to Practice
Public Service
6.1. Pro Bono Publico Service
6.2. Accepting Appointments
6.3. Membership in Legal Services Organization
6.4. Law Reform Activities Affecting Client Interests
6.5. Nonprofit and Court-Annexed Limited Legal Ser-
vices Programs
Information about Legal Services
7.1. Communications concerning a Lawyer’s Services
7.2. Advertising
7.3. Solicilation of Clients
7.4. Communication of Fields of Practice
7.4A. Certification as Specialist
7.4B. Legal Specialization Screening Committee
7.4C. Application by Board or Entity to Certify Lawyers as
Specialists
7.5. Firm Names and Letterheads
Maintaining the Integrity of the Profession
8.1. Bar Admission and Disciplinary Matters
8.2. Judicial and Legal Officials
8.3. Reporting Professional Misconduct
8.4. Misconduct
8.5. Disciplinary Authority; Choice of Law
(b) ‘‘Client’’ or ‘‘person’’ as used in these Rules
includes an authorized representative unless
otherwise stated.
(c) ‘‘Confirmed in writing,’’ when used in refer-
ence to the informed consent of a person, denotes
RULES OF PROFESSIONAL CONDUCT Rule 1.0
informed consent that is given in writing by the
person or a writing that a lawyer promptly trans-
mits to the person confirming an oral informed
consent. See subsection (f) for the definition of
‘‘informed consent.’’ If it is not feasible to obtain
or transmit the writing at the time the person gives
informed consent, then the lawyer must obtain or
transmit it within a reasonable time thereafter.
(d) ‘‘Firm’’ or ‘‘law firm’’ denotes a lawyer or
lawyers in a law partnership, professional corpo-
ration, sole proprietorship or other association
authorized to practice law; or lawyers employed
in a legal services organization or the legal depart-
ment of a corporation or other organization.
(e) ‘‘Fraud’’ or ‘‘fraudulent’’ denotes conduct
that is fraudulent under the substantive or proce-
dural law of the applicable jurisdiction and has a
purpose to deceive.
(f) ‘‘Informed consent’’ denotes the agreement
by a person to a proposed course of conduct after
the lawyer has communicated adequate informa-
tion and explanation about the material risks of
and reasonably available alternatives to the pro-
posed course of conduct.
(g) ‘‘Knowingly,’’ ‘‘known,’’ or ‘‘knows’’ denotes
actual knowledge of the fact in question. A per-
son’s knowledge may be inferred from circum-
stances.
(h) ‘‘Partner’’ denotes a member of a partner-
ship, a shareholder in a law firm organized as
a professional corporation, or a member of an
association authorized to practice law.
(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 be-
lieves,’’ 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.
(l) ‘‘Screened’’ denotes the isolation of a lawyer
from any participation in a matter through the
timely imposition of procedures within a firm that
are reasonably adequate under the circum-
stances to protect information that the isolated
lawyer is obligated to protect under these Rules
or other law.
(m) ‘‘Substantial,’’ when used in reference to
degree or extent denotes a material matter of clear
and weighty importance.
(n) ‘‘Tribunal’’ denotes a court, an arbitrator in
a binding arbitration proceeding or a legislative
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body, administrative agency or other body acting
in an adjudicative capacity. A legislative body,
administrative agency or other body acts in an
adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument
by a party or parties, will render a binding legal
judgment directly affecting a party’s interests in a
particular matter.
(o) ‘‘Writing’’ or ‘‘written’’ denotes a tangible or
electronic record of a communication or represen-
tation, including handwriting, typewriting, printing,
photostatting, photography, audio or videore-
cording and electronic communications. A
‘‘signed’’ writing includes an electronic sound,
symbol or process attached to or logically associ-
ated with a writing and executed or adopted by a
person with the intent to sign the writing.
(Amended June 26, 2006, to take effect Jan. 1, 2007;
amended June 14, 2013, to take effect Jan. 1, 2014.)
COMMENTARY: Confirmed in Writing. If it is not feasible
to obtain or transmit a written confirmation at the time the
client gives informed consent, then the lawyer must obtain or
transmit it within a reasonable time thereafter. If a lawyer has
obtained a client’s informed consent, the lawyer may act in
reliance on that consent so long as it is confirmed in writing
within a reasonable time thereafter.
Firm. Whether two or more lawyers constitute a firm within
subsection (d) can depend on the specific facts. For example,
two practitioners who share office space and occasionally
consult or assist each other ordinarily would not be regarded
as constituting a firm. However, if they present themselves to
the public in a way that suggests that they are a firm or conduct
themselves as a firm, they should be regarded as a firm for
purposes of the Rules. The terms of any formal agreement
between associated lawyers are relevant in determining
whether they are a firm, as is the fact that they have mutual
access to information concerning the clients they serve. Fur-
thermore, it is relevant in doubtful cases to consider the under-
lying purpose of the Rule that is involved. A group of lawyers
could be regarded as a firm for purposes of the Rule that the
same lawyer should not represent opposing parties in litigation,
while it might not be so regarded for purposes of the Rule that
information acquired by one lawyer is attributed to another.
With respect to the law department of an organization,
including the government, there is ordinarily no question that
the members of the department constitute a firm within the
meaning of the Rules of Professional Conduct. There can
be uncertainty, however, as to the identity of the client. For
example, it may not be clear whether the law department of
a corporation represents a subsidiary or an affiliated corpora-
tion, as well as the corporation by which the members of the
department are directly employed. A similar question can arise
concerning an unincorporated association and its local
affiliates.
Similar questions can also arise with respect to lawyers in
legal aid and legal services organizations. Depending upon
the structure of the organization, the entire organization or
different components of it may constitute a firm or firms for
purposes of these Rules.
Fraud. When used in these Rules, the terms ‘‘fraud’’ or
‘‘fraudulent’’ refer to conduct that is characterized as such
under the substantive or procedural law of the applicable juris-
diction and has a purpose to deceive. This does not include
merely negligent misrepresentation or negligent failure to
RULES OF PROFESSIONAL CONDUCTRule 1.0
apprise another of relevant information. For purposes of these
Rules, it is not necessary that anyone has suffered damages
or relied on the misrepresentation or failure to inform.
Informed Consent. Many of the Rules of Professional Con-
duct require the lawyer to obtain the informed consent of a
client or other person (e.g., a former client or, under certain
circumstances, a prospective client) before accepting or con-
tinuing representation or pursuing a course of conduct. See,
e.g., Rules 1.2 (c), 1.6 (a) and 1.7 (b). The communication
necessary to obtain such consent will vary according to the
Rule involved and the circumstances giving rise to the need
to obtain informed consent. The lawyer must make reasonable
efforts to ensure that the client or other person possesses
information reasonably adequate to make an informed deci-
sion. Ordinarily, this will require communication that includes
a disclosure of the facts and circumstances giving rise to the
situation, any explanation reasonably necessary to inform the
client or other person of the material advantages and disadvan-
tages of the proposed course of conduct and a discussion of
the client’s or other person’s options and alternatives. In some
circumstances it may be appropriate for a lawyer to advise a
client or other person to seek the advice of other counsel. A
lawyer need not inform a client or other person of facts or
implications already known to the client or other person; never-
theless, a lawyer who does not personally inform the client or
other person assumes the risk that the client or other person
is inadequately informed and the consent is invalid. In
determining whether the information and explanation provided
are reasonably adequate, relevant factors include whether the
client or other person is experienced in legal matters generally
and in making decisions of the type involved, and whether the
client or other person is independently represented by other
counsel in giving the consent. Normally, such persons need
less information and explanation than others, and generally
a client or other person who is independently represented by
other counsel in giving the consent should be assumed to
have given informed consent.
Obtaining informed consent will usually require an affirma-
tive response by the client or other person. In general, a lawyer
may not assume consent from a client’s or other person’s
silence. Consent may be inferred, however, from the conduct
of a client or other person who has reasonably adequate infor-
mation about the matter. A number of Rules require that a
person’s consent be confirmed in writing. See Rules 1.7 (b)
and 1.9 (a). For a definition of ‘‘writing’’ and ‘‘confirmed in
writing,’’ see subsections (o) and (c). Other Rules require that
a client’s consent be obtained in a writing signed by the client.
See, e.g., Rules 1.8 (a) and (g). For a definition of ‘‘signed,’’
see subsection (o).
Screened. The definition of ‘‘screened’’ applies to situations
where screening of a personally disqualified lawyer is permit-
ted to remove imputation of a conflict of interest under Rules
1.10, 1.11, 1.12 or 1.18.
The purpose of screening is to assure the affected parties
that confidential information known by the personally disquali-
fied lawyer remains protected. The personally disqualified law-
yer shall acknowledge in writing to the client the obligation
not to communicate with any of the other lawyers in the firm
with respect to the matter. Similarly, other lawyers in the firm
who are working on the matter should be informed that the
screening is in place and that they may not communicate with
the personally disqualified lawyer with respect to the matter.
Additional screening measures that are appropriate for the
particular matter will depend on the circumstances. To imple-
ment, reinforce and remind all affected lawyers of the presence
of the screening, it may be appropriate for the firm to undertake
such procedures as a written undertaking by the screened
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lawyer to avoid any communication with other firm personnel
and any contact with any firm files or other information, includ-
ing information in electronic form, relating to the matter, written
notice and instructions to all other firm personnel forbidding
any communication with the screened lawyer relating to the
matter, denial of access by the screened lawyer to firm files
or other information, including information in electronic form,
relating to the matter and periodic reminders of the screen to
the screened lawyer and all other firm personnel.
In order to be effective, screening measures must be imple-
mented as soon as practical after a lawyer or law firm knows
or reasonably should know that there is a need for screening.
CLIENT-LAWYER RELATIONSHIPS
Rule 1.1. Competence
A lawyer shall provide competent representa-
tion to a client. Competent representation requires
the legal knowledge, skill, thoroughness and prep-
aration reasonably necessary for the represen-
tation.
(P.B. 1978-1997, Rule 1.1.)
COMMENTARY: Legal Knowledge and Skill. In determin-
ing whether a lawyer employs the requisite knowledge and
skill in a particular matter, relevant factors include the relative
complexity and specialized nature of the matter, the lawyer’s
general experience, the lawyer’s training and experience in
the field in question, the preparation and study the lawyer is
able to give the matter and whether it is feasible to refer the
matter to, or associate or consult with, a lawyer of established
competence in the field in question. In many instances, the
required proficiency is that of a general practitioner. Expertise
in a particular field of law may be required in some circum-
stances.
A lawyer need not necessarily have special training or prior
experience to handle legal problems of a type with which
the lawyer is unfamiliar. A newly admitted lawyer can be as
competent as a practitioner with long experience. Some
important legal skills, such as the analysis of precedent, the
evaluation of evidence and legal drafting, are required in all
legal problems. Perhaps the most fundamental legal skill con-
sists of determining what kind of legal problems a situation
may involve, a skill that necessarily transcends any particular
specialized knowledge. A lawyer can provide adequate repre-
sentation in a wholly novel field through necessary study.
Competent representation can also be provided through the
association of a lawyer of established competence in the field
in question.
In an emergency, a lawyer may give advice or assistance
in a matter in which the lawyer does not have the skill ordinarily
required where referral to or consultation or association with
another lawyer would be impractical. Even in an emergency,
however, assistance should be limited to that reasonably nec-
essary in the circumstances, for ill-considered action under
emergency conditions can jeopardize the client’s interest. A
lawyer may accept representation where the requisite level of
competence can be achieved by reasonable preparation. This
applies as well to a lawyer who is appointed as counsel for
an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation. Competent handling of
a particular matter includes inquiry into and analysis of the
factual and legal elements of the problem, and use of methods
and procedures meeting the standards of competent prac-
titioners. It also includes adequate preparation. The required
attention and preparation are determined in part by what is
at stake; major litigation and complex transactions ordinarily
RULES OF PROFESSIONAL CONDUCT Rule 1.2
require more extensive treatment than matters of lesser com-
plexity and consequence. An agreement between the lawyer
and the client regarding the scope of the representation may
limit the matters for which the lawyer is responsible. See Rule
1.2 (c).
Retaining or Contracting with Other Lawyers. Before
a lawyer retains or contracts with other lawyers outside the
lawyer’s own firm to provide or assist in the provision of legal
services to a client, the lawyer should ordinarily obtain
informed consent from the client and must reasonably believe
that the other lawyers’ services will contribute to the competent
and ethical representation of the client. See also Rules 1.2
(allocation of authority), 1.4 (communication with client), 1.5
(b) (scope of representation, basis or rate of fee and
expenses), 1.5 (e) (fee sharing), 1.6 (confidentiality), and 5.5
(a) (unauthorized practice of law). Client consent may not be
necessary when a nonfirm lawyer is hired to perform a discrete
and limited task and the task does not require the disclosure
of information protected by Rule 1.6. The reasonableness of
the decision to retain or contract with other lawyers outside
the lawyer’s own firm will depend upon the circumstances,
including the education, experience and reputation of the non-
firm lawyers; the nature of the services assigned to the nonfirm
lawyers; and the legal protections, professional conduct rules,
and ethical environments of the jurisdictions in which the ser-
vices will be performed, particularly relating to confidential
information.
When lawyers from more than one law firm are providing
legal services to the client on a particular matter, the lawyers
should consult with each other and the client about the scope
of their respective representations and the allocation of
responsibility among them. See Rule 1.2. When making alloca-
tions of responsibility in a matter pending before a tribunal,
lawyers and parties may have additional obligations that are
a matter of law beyond the scope of these Rules.
Maintaining Competence. To maintain the requisite
knowledge and skill, a lawyer should keep abreast of changes
in the law and its practice, including the benefits and risks
associated with relevant technology, engage in continuing
study and education and comply with all continuing legal edu-
cation requirements to which the lawyer is subject.
Rule 1.2. Scope of Representation and Allo-
cation of Authority between Client and
Lawyer
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
(a) Subject to subsections (c) and (d), a lawyer
shall abide by a client’s decisions concerning the
objectives of representation and, as required by
Rule 1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer
may take such action on behalf of the client as is
impliedly authorized to carry out the representa-
tion. A lawyer shall abide by a client’s decision
whether to settle a matter. In a criminal case, the
lawyer shall abide by the client’s decision, after
consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial and whether
the client will testify. Subject to revocation by the
client and to the terms of the contract, a client’s
decision to settle a matter shall be implied where
the lawyer is retained to represent the client by a
third party obligated under the terms of a contract
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to provide the client with a defense and indemnity
for the loss, and the third party elects to settle a
matter without contribution by the client.
(b) A lawyer’s representation of a client, includ-
ing representation by appointment, does not con-
stitute an endorsement of the client’s political,
economic, social or moral views or activities.
(c) A lawyer may limit the scope of the represen-
tation if the limitation is reasonable under the cir-
cumstances and the client gives informed
consent. Such informed consent shall not be
required when a client cannot be located despite
reasonable efforts where the lawyer is retained
to represent a client by a third party that is obli-
gated by contract to provide the client with a
defense.
(d) A lawyer shall not counsel a client to engage,
or assist a client, in conduct that the lawyer knows
is criminal or fraudulent, but a lawyer may (1)
discuss the legal consequences of any proposed
course of conduct with a client; (2) counsel or
assist a client to make a good faith effort to deter-
mine the validity, scope, meaning or application of
the law; or (3) counsel or assist a client regarding
conduct expressly permitted by Connecticut law,
provided that the lawyer counsels the client about
the legal consequences, under other applicable
law, of the client’s proposed course of conduct.
(P.B. 1978-1997, Rule 1.2.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 29, 2007, to take
effect Jan. 1, 2008; amended June 13, 2014, to take effect
Jan. 1, 2015.)
COMMENTARY: Allocation of Authority between Client
and Lawyer. Subsection (a) confers upon the client the ulti-
mate authority to determine the purposes to be served by
legal representation, within the limits imposed by law and the
lawyer’s professional obligations. The decisions specified in
subsection (a), such as whether to settle a civil matter, must
also be made by the client. See Rule 1.4 (a) (1) for the lawyer’s
duty to communicate with the client about such decisions. With
respect to the means by which the client’s objectives are to
be pursued, the lawyer shall consult with the client as required
by Rule 1.4 (a) (2) and may take such action as is impliedly
authorized to carry out the representation.
On occasion, however, a lawyer and a client may disagree
about the means to be used to accomplish the client’s objec-
tives. Clients normally defer to the special knowledge and
skill of their lawyer with respect to the means to be used to
accomplish their objectives, particularly with respect to techni-
cal, legal and tactical matters. Conversely, lawyers usually
defer to the client regarding such questions as the expense
to be incurred and concern for third persons who might be
adversely affected. Because of the varied nature of the matters
about which a lawyer and client might disagree and because
the actions in question may implicate the interests of a tribunal
or other persons, this Rule does not prescribe how such dis-
agreements are to be resolved. Other law, however, may be
applicable and should be consulted by the lawyer. The lawyer
should also consult with the client and seek a mutually accept-
able resolution of the disagreement. If such efforts are unavail-
ing and the lawyer has a fundamental disagreement with the
client, the lawyer may withdraw from the representation. See
RULES OF PROFESSIONAL CONDUCTRule 1.2
Rule 1.16 (b) (4). Conversely, the client may resolve the dis-
agreement by discharging the lawyer. See Rule 1.16 (a) (3).
At the outset of a representation, the client may authorize
the lawyer to take specific action on the client’s behalf without
further consultation. Absent a material change in circum-
stances and subject to Rule 1.4, a lawyer may rely on such
an advance authorization. The client may, however, revoke
such authority at any time.
In a case in which the client appears to be suffering dimin-
ished capacity, the lawyer’s duty to abide by the client’s deci-
sions is to be guided by reference to Rule 1.14.
Independence from Client’s Views or Activities. Legal
representation should not be denied to people who are unable
to afford legal services or whose cause is controversial or the
subject of popular disapproval. By the same token, represent-
ing a client does not constitute approval of the client’s views
or activities.
Agreements Limiting Scope of Representation. The
scope of services to be provided by a lawyer may be limited
by agreement with the client or by the terms under which the
lawyer’s services are made available to the client. For exam-
ple, when a lawyer has been retained by an insurer to represent
an insured, the representation may be limited to matters
related to the insurance coverage. A limited representation
may be appropriate because the client has limited objectives
for the representation. In addition, the terms upon which repre-
sentation is undertaken may exclude specific means that might
otherwise be used to accomplish the client’s objectives. Such
limitations may exclude actions that the client thinks are too
costly or that the lawyer regards as repugnant or imprudent.
Nothing in Rule 1.2 shall be construed to authorize limited
appearances before any tribunal unless otherwise authorized
by law or rule.
Although this Rule affords the lawyer and client substantial
latitude to limit the scope of representation, the limitation must
be reasonable under the circumstances. If, for example, a
client’s objective is limited to securing general information
about the law the client needs in order to handle a common
and typically uncomplicated legal problem, the lawyer and
client may agree that the lawyer’s services will be limited to
a brief telephone consultation. Such a limitation, however,
would not be reasonable if the time allotted was not sufficient
to yield advice upon which the client could rely. Although an
agreement for a limited representation does not exempt a
lawyer from the duty to provide competent representation, the
limitation is a factor to be considered when determining the
legal knowledge, skill, thoroughness and preparation reason-
ably necessary for the representation. See Rule 1.1.
All agreements concerning a lawyer’s representation of a
client must accord with the Rules of Professional Conduct and
other law. See, e.g., Rules 1.1, 1.8 and 5.6.
Criminal, Fraudulent and Prohibited Transactions. Sub-
section (d) prohibits a lawyer from knowingly counseling or
assisting a client to commit a crime or fraud. This prohibition,
however, does not preclude the lawyer from giving an honest
opinion about the actual consequences that appear likely to
result from a client’s conduct. Nor does the fact that a client
uses advice in a course of action that is criminal or fraudulent
of itself make a lawyer a party to the course of action. There
is a critical distinction between presenting an analysis of legal
aspects of questionable conduct and recommending the
means by which a crime or fraud might be committed.
When the client’s course of action has already begun and
is continuing, the lawyer’s responsibility is especially delicate.
The lawyer is required to avoid assisting the client, for example,
by drafting or delivering documents that the lawyer knows are
fraudulent or by suggesting how the wrongdoing might be
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concealed. A lawyer may not continue assisting a client in
conduct that the lawyer originally believed legally proper but
then discovers is criminal or fraudulent. The lawyer must,
therefore, withdraw from the representation of the client in the
matter. See Rule 1.16 (a). In some cases, withdrawal alone
might be insufficient. It may be necessary for the lawyer to give
notice of the fact of withdrawal and to disaffirm any opinion,
document, affirmation or the like. See Rule 4.1.
Where the client is a fiduciary, the lawyer may be charged
with special obligations in dealings with a beneficiary.
Subsection (d) applies whether or not the defrauded party
is a party to the transaction. Hence, a lawyer must not partici-
pate in a transaction to effectuate criminal or fraudulent avoid-
ance of tax liability. Subsection (d) does not preclude
undertaking a criminal defense incident to a general retainer
for legal services to a lawful enterprise. Subsection (d) (2)
recognizes that determining the validity or interpretation of a
statute or regulation may require a course of action involving
disobedience of the statute or regulation or of the interpretation
placed upon it by governmental authorities. Subsection (d) (3)
is intended to permit counsel to provide legal services to clients
without being subject to discipline under these Rules notwith-
standing that the services concern conduct prohibited under
federal or other law but expressly permitted under Connecticut
law, e.g., conduct under An Act Concerning the Palliative Use
of Marijuana, Public Act 12-55, effective Oct. 1, 2012. Subsec-
tion (d) (3) shall not provide a defense to a presentment filed
pursuant to Practice Book Section 2-41 against an attorney
found guilty of a serious crime in another jurisdiction.
If a lawyer comes to know or reasonably should know that
a client expects assistance not permitted by the Rules of Pro-
fessional Conduct or other law or if the lawyer intends to act
contrary to the client’s instructions, the lawyer must consult
with the client regarding the limitations on thelawyer’s conduct.
See Rule 1.4 (a) (5).
Rule 1.3. Diligence
A lawyer shall act with reasonable diligence and
promptness in representing a client.
(P.B. 1978-1997, Rule 1.3.)
COMMENTARY: A lawyer must pursue a matter on behalf
of a client despite opposition, obstruction or personal inconve-
nience to the lawyer, and take whatever lawful and ethical
measures are required to vindicate a client’s cause or
endeavor. A lawyer must also act with commitment and dedica-
tion to the interests of the client and with zeal in advocacy
upon the client’s behalf. A lawyer is not bound, however, to
press for every advantage that might be realized for a client.
For example, a lawyer may have authority to exercise profes-
sional discretion in determining the means by which a matter
should be pursued. See Rule 1.2. The lawyer’s duty to act
with reasonable diligence does not require the use of offensive
tactics or preclude the treating of all persons involved in the
legal process with courtesy and respect.
A lawyer’s work load must be controlled so that each matter
can be handled competently.
Perhaps no professional shortcoming is more widely
resented than procrastination. A client’s interests often can
be adversely affected by the passage of time or the change of
conditions; in extreme instances, as when a lawyer overlooks
a statute of limitations, the client’s legal position may be
destroyed. Even when the client’s interests are not affected
in substance, however, unreasonable delay can cause a client
needless anxiety and undermine confidence in the lawyer’s
trustworthiness. A lawyer’s duty to act with reasonable prompt-
ness, however, does not preclude the lawyer from agreeing
RULES OF PROFESSIONAL CONDUCT Rule 1.4
to a reasonable request for a postponement that will not preju-
dice the lawyer’s client.
Unless the relationship is terminated as provided in Rule
1.16, a lawyer should carry through to conclusion all matters
undertaken for a client. If a lawyer’s employment is limited to
a specific matter, the relationship terminates when the matter
has been resolved. If a lawyer has served a client over a
substantial period in a variety of matters, the client sometimes
may assume that the lawyer will continue to serve on a continu-
ing basis unless the lawyer gives notice of withdrawal. Doubt
about whether a client-lawyer relationship still exists should
be clarified by the lawyer, preferably in writing, so that the
client will not mistakenly suppose the lawyer is looking after
the client’s affairs when the lawyer has ceased to do so. For
example, if a lawyer has handled a judicial or administrative
proceeding that produced a result adverse to the client and
the lawyer and the client have not agreed that the lawyer will
handle the matter on appeal, the lawyer must consult with
the client about the possibility of appeal before relinquishing
responsibility for the matter. See Rule 1.4 (a) (2). Whether
the lawyer is obligated to prosecute the appeal for the client
depends on the scope of the representation the lawyer has
agreed to provide to the client. See Rule 1.2.
To prevent neglect of client matters in the event of a sole
practitioner’s death or disability, the duty of diligence may
require that each sole practitioner prepare a plan, in conformity
with applicable rules, that designates another competent law-
yer to review client files, notify each client of the lawyer’s
death or disability, and determine whether there is a need for
immediate protective action. Cf. Rule 28 of the American Bar
Association Model Rules for Lawyer Disciplinary Enforcement
(providing for court appointment of a lawyer to inventory files
and take other protective action in absence of a plan providing
for another lawyer to protect the interests of the clients of a
deceased or disabled lawyer).
Rule 1.4. Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or
circumstance with respect to which the client’s
informed consent, as defined in Rule 1.0 (f), is
required by these Rules;
(2) reasonably consult with the client about the
means by which the client’s objectives are to be
accomplished;
(3) keep the client reasonably informed about
the status of the matter;
(4) promptly comply with reasonable requests
for information; and
(5) consult with the client about any relevant
limitation on the lawyer’s conduct when the lawyer
knows that the client expects assistance not per-
mitted by the Rules of Professional Conduct or
other law.
(b) A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make
informed decisions regarding the representation.
(P.B. 1978-1997, Rule 1.4.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: Reasonable communication between the
lawyer and the client is necessary for the client effectively to
participate in the representation.
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Communicating with Client. If these Rules or other law
require that a particular decision about the representation be
made by the client, subsection (a) (1) requires that the lawyer
promptly consult with and secure the client’s consent prior to
taking action. See Rule 1.2 (a).
Subsection (a) (2) requires the lawyer to reasonably consult
with the client about the means to be used to accomplish the
client’s objectives. In some situations—depending on both the
importance of the action under consideration and the feasibility
of consulting with the client—this duty will require consultation
prior to taking action. In other circumstances, such as during
a trial when an immediate decision must be made, the exigency
of the situation may require the lawyer to act without prior
consultation. In such cases the lawyer must nonetheless act
reasonably to inform the client of actions the lawyer has taken
on the client’s behalf. Additionally, subsection (a) (3) requires
that the lawyer keep the client reasonably informed about the
status of the matter, such as significant developments affecting
the timing or the substance of the representation.
A lawyer’s regular communication with clients will minimize
the occasions on which a client will need to request information
concerning the representation. When a client makes a reason-
able request for information, however, subsection (a) (4)
requires prompt compliance with the request, or if a prompt
response is not feasible, that the lawyer, or a member of the
lawyer’s staff, acknowledge receipt of the request and advise
the client when a response may be expected. A lawyer should
promptly respond to or acknowledge client communications.
Explaining Matters. The client should have sufficient infor-
mation to participate intelligently in decisions concerning the
objectives of the representation and the means by which they
are to be pursued, to the extent the client is willing and able
to do so. Adequacy of communication depends in part on the
kind of advice or assistance that is involved. For example,
when there is time to explain a proposal made in a negotiation,
the lawyer should review all important provisions with the client
before proceeding to an agreement. In litigation, a lawyer
should explain the general strategy and prospects of success
and ordinarily should consult the client on tactics that are likely
to result in significant expense or to injure or coerce others.
On the other hand, a lawyer ordinarily will not be expected to
describe trial or negotiation strategy in detail. The guiding
principle is that the lawyer should fulfill reasonable client
expectations for information consistent with the duty to act in
the client’s best interests, and the client’s overall requirements
as to the character of representation. In certain circumstances,
such as when a lawyer asks a client to consent to a representa-
tion affected by a conflict of interest, the client must give
informed consent, as defined in Rule 1.0 (f).
Ordinarily, the information to be provided is that appropriate
for a client who is a comprehending and responsible adult.
However, fully informing the client according to this standard
may be impracticable, for example, when the client is a child
or suffers from diminished capacity. See Rule 1.14. When the
client is an organization or group, it is often impossible or
inappropriate to inform every one of its members about its
legal affairs; ordinarily, the lawyer should address communica-
tions to the appropriate officials of the organization. See Rule
1.13. Where many routine matters are involved, a system of
limited or occasional reporting may be arranged with the client.
Withholding Information. In some circumstances, a law-
yer may be justified in delaying transmission of information
when the client would be likely to react imprudently to an
immediate communication. Thus, a lawyer might withhold a
psychiatric diagnosis of a client when the examining psychia-
trist indicates that disclosure would harm the client. A lawyer
may not withhold information to serve the lawyer’s own interest
RULES OF PROFESSIONAL CONDUCTRule 1.4
or convenience or the interests or convenience of another
person. Rules or court orders governing litigation may provide
that information supplied to a lawyer may not be disclosed to
the client. Rule 3.4 (3) directs compliance with such rules
or orders.
Rule 1.5. Fees
(a) A lawyer shall not make an agreement for,
charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors
to be considered in determining the reasonable-
ness of a fee include the following:
(1) The time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) The likelihood, if made known to the client,
that the acceptance of the particular employment
will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality
for similar legal services;
(4) The amount involved and the results ob-
tained;
(5) The time limitations imposed by the client
or by the circumstances;
(6) The nature and length of the professional
relationship with the client;
(7) The experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
(b) The scope of the representation, the basis
or rate of the fee and expenses for which the client
will be responsible, shall be communicated to the
client, in writing, before or within a reasonable
time after commencing the representation, except
when the lawyer will charge a regularly repre-
sented client on the same basis or rate. Any
changes in the basis or rate of the fee or expenses
shall also be communicated to the client in writing
before the fees or expenses to be billed at higher
rates are actually incurred. In any representation
in which the lawyer and the client agree that the
lawyer will file a limited appearance, the limited
appearance engagement agreement shall also
include the following: identification of the proceed-
ing in which the lawyer will file the limited appear-
ance; identification of the court events for which
the lawyer will appear on behalf of the client; and
notification to the client that after the limited
appearance services have been completed, the
lawyer will file a certificate of completion of limited
appearance with the court, which will serve to
terminate the lawyer’s obligation to the client in
the matter, and as to which the client will have no
right to object. Any change in the scope of the
representation requires the client’s informed con-
sent, shall be confirmed to the client in writing,
and shall require the lawyer to file a new limited
appearance with the court reflecting the change(s)
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in the scope of representation. This subsection
shall not apply to public defenders or in situations
where the lawyer will be paid by the court or a
state agency.
(c) A fee may be contingent on the outcome of
the matter for which the service is rendered,
except in a matter in which a contingent fee is
prohibited by subsection (d) or other law. A contin-
gent fee agreement shall be in a writing signed
by the client and shall state the method by which
the fee is to be determined, including the percent-
age or percentages of the recovery that shall
accrue to the lawyer as a fee in the event of settle-
ment, trial or appeal, whether and to what extent
the client will be responsible for any court costs
and expenses of litigation, and whether such
expenses are to be deducted before or after the
contingent fee is calculated. The agreement must
clearly notify the client of any expenses for which
the client will be liable whether or not the client
is the prevailing party. Upon conclusion of a con-
tingent fee matter, the lawyer shall provide the
client with a written statement stating the outcome
of the matter and, if there is a recovery, showing
the remittance to the client and the method of
its determination.
(d) A lawyer shall not enter into an arrangement
for, charge, or collect:
(1) Any fee in a domestic relations matter, the
payment or amount of which is contingent upon
the securing of a dissolution of marriage or civil
union or upon the amount of alimony or support,
or property settlement in lieu thereof; or
(2) A contingent fee for representing a defend-
ant in a criminal case.
(e) A division of fee between lawyers who are
not in the same firm may be made only if:
(1) The client is advised in writing of the com-
pensation sharing agreement and of the participa-
tion of all the lawyers involved, and does not
object; and
(2) The total fee is reasonable.
(P.B. 1978-1997. Rule 1.5.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 14, 2013, to take
effect Oct. 1, 2013.)
COMMENTARY: Basis or Rate of Fee. Subsection (a)
requires that lawyers charge fees that are reasonable under
the circumstances. The factors specified in (1) through (8) are
not exclusive. Nor will each factor be relevant in each instance.
Subsection (a) also requires that expenses for which the client
will be charged must be reasonable. A lawyer may seek reim-
bursement for the cost of services performed in-house, such
as copying, or for other expenses incurred in-house, such as
telephone charges, either by charging a reasonable amount
to which the client has agreed in advance or by charging an
amount that reasonably reflects the cost incurred by the
lawyer.
When the lawyer has regularly represented a client, the
lawyer and the client ordinarily will have evolved an under-
standing concerning the basis or rate of the fee and the
RULES OF PROFESSIONAL CONDUCT Rule 1.6
expenses for which the client will be responsible. In a new
client-lawyer relationship, however, an understanding as to
fees and expenses must be promptly established. Generally,
it is desirable to furnish the client with at least a simple memo-
randum or copy of the lawyer’s customary fee arrangements
that states the general nature of the legal services to be pro-
vided, the basis, rate or total amount of the fee and whether
and to what extent the client will be responsible for any costs,
expenses or disbursements in the course of the representa-
tion. A written statement concerning the terms of the engage-
ment reduces the possibility of misunderstanding. Absent
extraordinary circumstances, the lawyer should send the writ-
ten fee statement to the client before any substantial services
are rendered, but in any event, not later than ten days after
commencing the representation.
Contingent fees, like any other fees, are subject to the
reasonableness standard of subsection (a) of this Rule. In
determining whether a particular contingent fee is reasonable,
or whether it is reasonable to charge any form of contingent
fee, a lawyer must consider the factors that are relevant under
the circumstances. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage allowable,
or may require a lawyer to offer clients an alternative basis
for the fee. Applicable law also may apply to situations other
than a contingent fee, for example, government regulations
regarding fees in certain tax matters. Inmatters where a contin-
gent fee agreement has been signed by the client and is
in accordance with General Statutes § 52-251c, the fee is
presumed to be reasonable.
Terms of Payment. A lawyer may require advance pay-
ment of a fee, but is obliged to return any unearned portion.
See Rule 1.16 (d). A lawyer may accept property in payment
for services, such as an ownership interest in an enterprise,
providing this does not involve acquisition of a proprietary
interest in the cause of action or subject matter of the litigation
contrary to Rule 1.8 (i). However, a fee paid in property instead
of money may be subject to the requirements of Rule 1.8 (a)
because such fees often have the essential qualities of a
business transaction with the client.
An agreement may not be made whose terms might induce
the lawyer improperly to curtail services for the client or perform
them in a way contrary to the client’s interest. For example,
a lawyer should not enter into an agreement whereby services
are to be provided only up to a stated amount when it is
foreseeable that more extensive services probably will be
required, unless the situation is adequately explained to the
client. Otherwise, the client might have to bargain for further
assistance in the midst of a proceeding or transaction. How-
ever, it is proper to define the extent of services in light of
the client’s ability to pay. A lawyer should not exploit a fee
arrangement based primarily on hourly charges by using
wasteful procedures.
Prohibited Contingent Fees. Subsection (d) prohibits a
lawyer from charging a contingent fee in a domestic relations
matter when payment is contingent upon the securing of a
divorce or upon the amount of alimony or support or property
settlement to be obtained. This provision does not preclude
a contract for a contingent fee for legal representation in con-
nection with the recovery of postjudgment balances due under
support, alimony or other financial orders because such con-
tracts do not implicate the same policy concerns.
Division of Fee. A division of fee is a single billing to a
client covering the fee of two or more lawyers who are not in
the same firm. A division of fee facilitates association of more
than one lawyer in a matter in which neither alone could serve
the client as well and most often is used when the fee is
contingent and the division is between a referring lawyer and
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a trial specialist. Contingent fee agreements must be in writing
signed by the client and must otherwise comply with subsec-
tion (c) of this Rule. A lawyer should only refer a matter to
a lawyer whom the referring lawyer reasonably believes is
competent to handle the matter. See Rule 1.1.
Subsection (e) does not prohibit or regulate divisions of
fees to be received in the future for work done when lawyers
were previously associated in a law firm.
Disputes over Fees. If an arbitration or mediation proce-
dure such as that in Practice Book Section 2-32 (a) (3) has
been established for resolution of fee disputes, the lawyer
must comply with the procedure when it is mandatory, and,
even when it is voluntary, the lawyer should conscientiously
consider submitting to it. Law may prescribe a procedure for
determining a lawyer’s fee, for example, in representation of
an executor or administrator, a class or a person entitled to
a reasonable fee as part of the measure of damages. The
lawyer entitled to such a fee and a lawyer representing another
party concerned with the fee should comply with the pre-
scribed procedure.
Rule 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating
to representation of a client unless the client gives
informed consent, the disclosure is impliedly
authorized in order to carry out the representation,
or the disclosure is permitted by subsection (b),
(c), or (d).
(b) A lawyer shall reveal such information to the
extent the lawyer reasonably believes necessary
to prevent the client from committing a criminal
or fraudulent act that the lawyer believes is likely
to result in death or substantial bodily harm.
(c) A lawyer may reveal such information to the
extent the lawyer reasonably believes neces-
sary to:
(1) Prevent the client from committing a criminal
or fraudulent act that the lawyer believes is likely
to result in substantial injury to the financial inter-
est or property of another;
(2) Prevent, mitigate or rectify the consequence
of a client’s criminal or fraudulent act in the com-
mission of which the lawyer’s services had
been used;
(3) Secure legal advice about the lawyer’s com-
pliance with these Rules;
(4) Comply with other law or a court order.
(5) Detect and resolve conflicts of interest aris-
ing from the lawyer’s change of employment or
from changes in the composition or ownership of
a firm, but only if the revealed information would
not compromise the attorney-client privilege or
otherwise prejudice the client.
(d) A lawyer may reveal such information to
establish a claim or defense on behalf of the law-
yer in a controversy between the lawyer and the
client, to establish a defense to a criminal charge
or civil claim against the lawyer based upon con-
duct in which the client was involved, or to respond
RULES OF PROFESSIONAL CONDUCTRule 1.6
to allegations in any proceeding concerning the
lawyer’s representation of the client.
(e) A lawyer shall make reasonable efforts to
prevent the inadvertent or unauthorized disclo-
sure of, or unauthorized access to, information
relating to the representation of a client.
(P.B. 1978-1997, Rule 1.6.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 14, 2013, to take
effect Jan. 1, 2014.)
COMMENTARY: This Rule governs the disclosure by a
lawyer of information relating to the representation of a client
during the lawyer’s representation of the client. See Rule 1.18
for the lawyer’s duties with respect to information provided to
the lawyer by a prospective client, Rule 1.9 (c) (2) for the
lawyer’s duty not to reveal information relating to the lawyer’s
prior representation of a former client and Rules 1.8 (b) and
1.9 (c) (1) for the lawyer’s duties with respect to the use of such
information to the disadvantage of clients and former clients.
A fundamental principle in the client-lawyer relationship is
that, in the absence of the client’s informed consent, the lawyer
must not reveal information relating to the representation. See
Rule 1.0 (f) for the definition of informed consent. This contri-
butes to the trust that is the hallmark of the client-lawyer rela-
tionship. The client is thereby encouraged to seek legal
assistance and to communicate fully and frankly with the law-
yer even as to embarrassing or legally damaging subject mat-
ter. The lawyer needs this information to represent the client
effectively and, if necessary, to advise the client to refrain from
wrongful conduct. Almost without exception, clients come to
lawyers in order to determine their rights and what is, in the
complex of laws and regulations, deemed to be legal and
correct. Based upon experience, lawyers know that almost all
clients follow the advice given, and the law is upheld.
The principle of client-lawyer confidentiality is given effect
by related bodies of law, the attorney-client privilege, the work
product doctrine and the Rule of confidentiality established
in professional ethics. The attorney-client privilege and work
product doctrine apply in judicial and other proceedings in
which a lawyer may be called as a witness or otherwise
required to produce evidence concerning a client. The Rule
of client-lawyer confidentiality applies in situations other than
those where evidence is sought from the lawyer through com-
pulsion of law. The confidentiality Rule, for example, applies
not only to matters communicated in confidence by the client
but also to all information relating to the representation, what-
ever its source. A lawyer may not disclose such information
except as authorized or required by the Rules of Professional
Conduct or other law. See also Scope.
Subsection (a) prohibits a lawyer from revealing information
relating to the representation of a client. This prohibition also
applies to disclosures by a lawyer that do not in themselves
reveal protected information but could reasonably lead to the
discovery of such information by a third person. A lawyer’s
use of a hypothetical to discuss issues relating to the represen-
tation is permissible so long as there is no reasonable likeli-
hood that the listener will be able to ascertain the identity of
the client or the situation involved.
Authorized Disclosure. Except to the extent that the cli-
ent’s instructions or special circumstances limit that authority,
a lawyer is impliedly authorized to make disclosures about a
client when appropriate in carrying out the representation.
In some situations, for example, a lawyer may be impliedly
authorized to admit a fact that cannot properly be disputed to
make a disclosure that facilitates a satisfactory conclusion to
a matter. Lawyers in a firm may, in the course of the firm’s
practice, disclose to each other information relating to a client
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of the firm, unless the client has instructed that particular
information be confined to specific lawyers.
Disclosure Adverse to Client. Although the public interest
is usually best served by a strict rule requiring lawyers to
preserve the confidentiality of information relating to the repre-
sentation of their clients, the confidentiality Rule is subject to
limited exceptions. Subsection (b) recognizes the overriding
value of life and physical integrity and requires disclosure in
certain circumstances.
Subsection (c) (1) is a limited exception to the Rule of
confidentiality that permits the lawyer to reveal information to
the extent necessary to enable affected persons or appropriate
authorities to prevent the client from committing a crime or
fraud, as defined in Rule 1.0 (e), that is likely to result in
substantial injury to the financial or property interests of
another. Such a serious abuse of the client-lawyer relationship
by the client forfeits the protection of this Rule. The client
can, of course, prevent such disclosure by refraining from the
wrongful conduct. Although subsection (c) (1) does not require
the lawyer to reveal the client’s misconduct, the lawyer may
not counsel or assist the client in conduct the lawyer knows
is criminal or fraudulent. See Rule 1.2 (d). See also Rule 1.16
with respect to the lawyer’s obligation or right to withdraw from
the representation of the client in such circumstances, and
Rule 1.13 (c), which permits the lawyer, where the client is
an organization, to reveal information relating to the represen-
tation in limited circumstances.
Subsection (c) (2) addresses the situation in which the
lawyer does not learn of the client’s crime or fraud until after
it has been consummated. Although the client no longer has
the option of preventing disclosure by refraining from the
wrongful conduct, there will be situations in which the loss
suffered by the affected person can be prevented, rectified or
mitigated. In such situations, the lawyer may disclose informa-
tion relating to the representation to the extent necessary to
enable the affected persons to prevent or mitigate reasonably
certain losses or to attempt to recoup their losses. Subsection
(c) (2) does not apply when a person who has committed a
crime or fraud thereafter employs a lawyer for representation
concerning that offense.
A lawyer’s confidentiality obligations do not preclude a law-
yer from securing confidential legal advice about the lawyer’s
personal responsibility to comply with these Rules. In most
situations, disclosing information to secure such advice will
be impliedly authorized for the lawyer to carry out the represen-
tation. Even when the disclosure is not impliedly authorized,
subsection (c) (3) permits such disclosure because of the
importance of a lawyer’s compliance with the Rules of Profes-
sional Conduct. The lawyer’s right to disclose such information
to a second lawyer pursuant to subsection (c) (3) does not
give the second lawyer the duty or right to disclose such
information under subsections (b), (c) and (d). The first law-
yer’s client does not become the client of the second lawyer
just because the first lawyer seeks the second lawyer’s advice
under (c) (3).
Subsection (c) (5) recognizes that lawyers in different firms
may need to disclose limited information to each other to detect
and resolve conflicts of interest, such as when a lawyer is
considering an association with another firm, two or more
firms are considering a merger, or a lawyer is considering the
purchase of a law practice. See Rule 1.17, commentary. Under
these circumstances, lawyers and law firms are permitted to
disclose limited information, but only once substantive discus-
sions regarding the new relationship have occurred. Any such
disclosure should ordinarily include no more than the identity
of the persons and entities involved in a matter, a brief sum-
mary of the general issues involved, and information about
RULES OF PROFESSIONAL CONDUCT Rule 1.6
whether the matter has terminated. Even this limited informa-
tion, however, should be disclosed only to the extent reason-
ably necessary to detect and resolve conflicts of interest that
might arise from the possible new relationship. Moreover, the
disclosure of any information is prohibited if it would compro-
mise the attorney-client privilege or otherwise prejudice the
client (e.g., the fact that a corporate client is seeking advice
on a corporate takeover that has not been publicly announced,
that a person consulted a lawyer aboutthe possibility of divorce
before the person’s intentions are known to the person’s
spouse, or that a person has consulted a lawyer about a
criminal investigation that has not led to a public charge).
Under those circumstances, subsection (a) prohibits disclo-
sure unless the client or former client gives informed consent.
A lawyer’s fiduciary duty to the lawyer’s firm may also govern
a lawyer’s conduct when exploring an association with another
firm and is beyond the scope of these Rules. Any information
disclosed pursuant to subsection (c) (5) may be used or further
disclosed only to the extent necessary to detect and resolve
conflicts of interest. Subsection (c) (5) does not restrict the
use of information acquired by means independent of any
disclosure pursuant to subsection (c) (5). Subsection (c) (5)
also does not affect the disclosure of information within a law
firm when the disclosure is otherwise authorized, suchas when
a lawyer in a firm discloses information to another lawyer in
the same firm to detect and resolve conflicts of interest that
could arise in connection with undertaking a new represen-
tation.
Where a legal claim or disciplinary charge alleges complicity
of the lawyer in a client’s conduct or other misconduct of the
lawyer involving representation of the client, the lawyer may
respond to the extent the lawyer reasonably believes neces-
sary to establish a defense. The same is true with respect to
a claim involving the conduct or representation of a former
client. Such a charge can arise in a civil, criminal, disciplinary
or other proceeding and can be based on a wrong allegedly
committed by the lawyer against the client or on a wrong
alleged by a third person, for example, a person claiming to
have been defrauded by the lawyer and client acting together.
The lawyer’s right to respond arises when an assertion of such
complicity has been made. Subsection (d) does not require
the lawyer to await the commencement of an action or pro-
ceeding that charges such complicity, so that the defense may
be established by responding directly to a third party who has
made such an assertion. The right to defend also applies, of
course, where a proceeding has been commenced.
A lawyer entitled to a fee is permitted by subsection (d) to
prove the services rendered in an action to collect it. This
aspect of the rule expresses the principle that the beneficiary
of a fiduciary relationship may not exploit it to the detriment
of the fiduciary.
Other law may require that a lawyer disclose information
about a client. Whether such a law supersedes Rule 1.6 is
a question of law beyond the scope of these Rules. When
disclosure of information relating to the representation appears
to be required by other law, the lawyer must discuss the matter
with the client to the extent required by Rule 1.4. If, however,
the other law supersedes this Rule and requires disclosure,
subsection (c) (4) permits the lawyer to make such disclosures
as are necessary to comply with the law.
A lawyer may be ordered to reveal information relating to
the representation of a client by a court or by another tribunal
or governmental entity claiming authority pursuant to other
law to compel the disclosure. Absent informed consent of the
client to do otherwise, the lawyer should assert on behalf of
the client all nonfrivolous claims that the order is not authorized
by other law or that the information sought is protected against
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disclosure by the attorney-client privilege or other applicable
law. In the event of an adverse ruling, the lawyer must consult
with the client about the possibility of appeal to the extent
required by Rule 1.4. Unless review is sought, however, sub-
section (c) (4) permits the lawyer to comply with the court’s
order.
Subsection (b) requires and subsection (c) permits disclo-
sure only to the extent the lawyer reasonably believes the
disclosure is necessary to accomplish one of the purposes
specified. Where practicable, the lawyer should first seek to
persuade the client to take suitable action to obviate the need
for disclosure. In any case, a disclosure adverse to the client’s
interest should be no greater than the lawyer reasonably
believes necessary to accomplish the purpose. If the disclo-
sure will be made in connection with a judicial proceeding,
the disclosure should be made in a manner that limits access
to the information to the tribunal or other persons having a
need to know it and appropriate protective orders or other
arrangements should be sought by the lawyer to the fullest
extent practicable.
Subsection (c) permits but does not require the disclosure
of information relating to a client’s representation to accom-
plish the purposes specified in subsections (c) (1) through (c)
(4). In exercising the discretion conferred by this Rule, the
lawyer may consider such factors as the nature of the lawyer’s
relationship with the client and with those who might be injured
by the client, the lawyer’s own involvement in the transaction
and factors that may extenuate the conduct in question. A
lawyer’s decision not to disclose as permitted by subsection
(c) does not violate this Rule. Disclosure may be required,
however, by other Rules. Some Rules require disclosure only
if such disclosure would be permitted by subsection (b). See
Rules 1.2 (d), 4.1 (b), 8.1 and 8.3. Rule 3.3, on the other
hand, requires disclosure in some circumstances regardless
of whether such disclosure is permitted by this Rule. See Rule
3.3 (c).
Acting Competently to Preserve Confidentiality. Sub-
section (e) requires a lawyer to act competently to safeguard
information relating to the representation of a client against
inadvertent or unauthorized disclosure by the lawyer or other
persons who are participating in the representation of the client
or who are subject to the lawyer’s supervision. See Rules 1.1,
5.1 and 5.3. The unauthorized access to, or the inadvertent
or unauthorized disclosure of, information relating to the repre-
sentation of a client does not constitute a violation of subsec-
tion (e) if the lawyer has made reasonable efforts to prevent
the access or disclosure. Factors to be considered in determin-
ing the reasonableness of the lawyer’s efforts include, but are
not limited to, the sensitivity of the information, the likelihood
of disclosure if additional safeguards are not employed, the
cost of employing additional safeguards, the difficulty of imple-
menting the safeguards, and the extent to which the safe-
guards adversely affect the lawyer’s ability to represent clients
(e.g., by making a device or important piece of software exces-
sively difficult to use). A client may require the lawyer to imple-
ment special security measures not required by this Rule or
may give informed consent to forgo security measures that
would otherwise be required by this Rule. Whether a lawyer
may be required to take additional steps to safeguard a client’s
information in order to comply with other law, such as state and
federal laws that govern data privacy or thatimpose notification
requirements upon the loss of, or unauthorized access to,
electronic information, is beyond the scope of these Rules. For
a lawyer’s duties when sharing information with nonlawyers
outside the lawyer’s own firm, see Rule 5.3, commentary.
When transmitting a communication that includes informa-
tion relating to the representation of a client, the lawyer must
RULES OF PROFESSIONAL CONDUCTRule 1.6
take reasonable precautions to prevent the information from
coming into the hands of unintended recipients. This duty,
however, does not require that the lawyer use special security
measures if the method of communication affords a reason-
able expectation of privacy. Special circumstances, however,
may warrant special precautions. Factors to be considered in
determining the reasonableness of the lawyer’s expectation
of confidentiality include the sensitivity of the information and
the extent to which the privacy of the communication is pro-
tected by law or by a confidentiality agreement. A client may
require the lawyer to implement special security measures not
required by this Rule or may give informed consent to the
use of a means of communication that would otherwise be
prohibited by this Rule. Whether a lawyer may be required to
take additional steps in order to comply with other law, such
as state and federal laws that govern data privacy, is beyond
the scope of these Rules.
Former Client. The duty of confidentiality continues after
the client-lawyer relationship has terminated. See Rule 1.9 (c)
(2). See Rule 1.9 (c) (1) for the prohibition against using such
information to the disadvantage of the former client.
Rule 1.7. Conflict of Interest: Current Clients
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
(a) Except as provided in subsection (b), a law-
yer shall not represent a client if the representation
involves a concurrent conflict of interest. A concur-
rent conflict of interest exists if:
(1) the representation of one client will be
directly adverse to another client; or
(2) there is a significant risk that the representa-
tion of one or more clients will be materially limited
by the lawyer’s responsibilities to another client,
a former client or a third person or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a concur-
rent conflict of interest under subsection (a), a
lawyer may represent a client if:
(1) the lawyer reasonably believes that the law-
yer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the
assertion of a claim by one client against another
client represented by the lawyer in the same litiga-
tion or the same proceeding before any tribu-
nal; and
(4) each affected client gives informed consent,
confirmed in writing.
(P.B. 1978-1997, Rule 1.7.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: General Principles. Loyalty and inde-
pendent judgment are essential elements in the lawyer’s rela-
tionship to a client. Concurrent conflicts of interest can arise
from the lawyer’s responsibilities to another client, a former
client or a third person or from the lawyer’s own interests. For
specific Rules regarding certain concurrent conflicts of interest,
see Rule 1.8. For former client conflicts of interest, see Rule
1.9. For conflicts of interest involving prospective clients, see
Rule 1.18. For definitions of ‘‘informed consent’’ and ‘‘con-
firmed in writing,’’ see Rule 1.0 (f) and (c).
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Resolution of a conflict of interest problem under this Rule
requires the lawyer to: 1) clearly identify the client or clients;
2) determine whether a conflict of interest exists; 3) decide
whether the representation may be undertaken despite the
existence of a conflict, i.e., whether the conflict is consentable;
and 4) if so, consult with the clients affected under subsection
(a) and obtain their informed consent, confirmed in writing.
The clients affected under subsection (a) include both of the
clients referred to in subsection (a) (1) and the one or more
clients whose representation might be materially limited under
subsection (a) (2).
A conflict of interest may exist before representation is
undertaken, in which event the representation must be
declined, unless the lawyer obtains the informed consent of
each client under the conditions of subsection (b). To deter-
mine whether a conflict of interest exists, a lawyer should
adopt reasonable procedures, appropriate for the size and
type of firm and practice, to determine in both litigation and
nonlitigation matters the persons and issues involved. See
also Commentary to Rule 5.1. Ignorance caused by a failure
to institute such procedures will not excuse a lawyer’s violation
of this Rule. As to whether a client-lawyer relationship exists
or, having once been established, is continuing, see Commen-
tary to Rule 1.3 and Scope.
If a conflict arises after representation has been undertaken,
the lawyer ordinarily must withdraw from the representation,
unless the lawyer has obtained the informed consent of the
client under the conditions of subsection (b). See Rule 1.16.
Where more than one client is involved, whether the lawyer
may continue to represent any of the clients is determined
both by the lawyer’s ability to comply with duties owed to the
former client and by the lawyer’s ability torepresent adequately
the remaining client or clients, given the lawyer’s duties to the
former client. See Rule 1.9; see also the next paragraph in
this Commentary and the first paragraph under the ‘‘Special
Considerations in Common Representation’’ heading, below.
Unforeseeable developments, such as changes in corpo-
rate and other organizational affiliations or the addition or
realignment of parties in litigation, might create conflicts in the
midst of a representation, as when a company sued by the
lawyer on behalf of one client is bought by another client
represented by the lawyer in an unrelated matter. Depending
on the circumstances, the lawyer may have the option to with-
draw from one of the representations in order to avoid the
conflict. The lawyer must seek court approval where necessary
and take steps to minimize harm to the clients. See Rule 1.16.
The lawyer must continue to protect the confidences of the
client from whose representation the lawyer has withdrawn.
See Rule 1.9 (c).
Identifying Conflicts of Interest: Directly Adverse. Loy-
alty to a current client prohibits undertaking representation
directly adverse to that client without that client’s informed
consent. Thus, absent consent, a lawyer may not act as advo-
cate in one matter against a person the lawyer represents in
some other matter, even when the matters are wholly unre-
lated. The client as to whom the representation is directly
adverse is likely to feel betrayed, and the resulting damage
to the client-lawyer relationship is likely to impair the lawyer’s
ability to represent the client effectively. In addition, the client
on whose behalf the adverse representation is undertaken
reasonably may fear that the lawyer will pursue that client’s
case less effectively out of deference to the other client, i.e.,
that the representation may be materially limited by the law-
yer’s interest in retaining the current client. Similarly, a directly
adverse conflict may arise when a lawyer is required to cross-
examine a client who appears as a witness in a lawsuit involv-
ing another client, as when the testimony will be damaging to
RULES OF PROFESSIONAL CONDUCT Rule 1.7
the client who is represented in the lawsuit. On the other hand,
simultaneous representation in unrelated matters of clients
whose interests are only economically adverse, such as repre-
sentation of competing economic enterprises in unrelated liti-
gation, does not ordinarily constitute a conflict of interest and
thus may not require consent of the respective clients.
Directly adverse conflicts can also arise in transactional
matters. For example, if a lawyer is asked to represent the
seller of a business in negotiations with a buyer represented
by the lawyer, not in the same transaction but in another,
unrelated matter, the lawyer could not undertake the represen-
tation without the informed consent of each client.
Identifying Conflicts of Interest: Material Limitation.
Even where there is no direct adverseness,a conflict of interest
exists if there is a significant risk that a lawyer’s ability to
consider, recommend or carry out an appropriate course of
action for the client will be materially limited as a result of the
lawyer’s other responsibilities or interests. For example, a
lawyer asked to represent several individuals seeking to form
a joint venture is likely to be materially limited in the lawyer’s
ability to recommend or advocate all possible positions that
each might take because of the lawyer’s duty of loyalty to the
others. The conflict in effect forecloses alternatives that would
otherwise be available to the client. The mere possibility of
subsequent harm does not itself require disclosure and con-
sent. The critical questions are the likelihood that a difference
in interests will eventuate and, if it does, whether it will materi-
ally interfere with the lawyer’s independent professional judg-
ment in considering alternatives or foreclose courses of action
that reasonably should be pursued on behalf of the client.
Lawyer’s Responsibilities to Former Clients and Other
Third Persons. In addition to conflicts with other current cli-
ents, a lawyer’s duties of loyalty and independence may be
materially limited by responsibilities to former clients under
Rule 1.9 or by the lawyer’s responsibilities to other persons,
such as fiduciary duties arising from a lawyer’s service as a
trustee, executor or corporate director.
Personal Interest Conflicts. The lawyer’s own interests
must not be permitted to have an adverse effect on representa-
tion of a client. For example, if the probity of a lawyer’s own
conduct in a transaction is in seriousquestion, it may be difficult
or impossible for the lawyer to give a client detached advice.
Similarly, when a lawyer has discussions concerning possible
employment with an opponent of the lawyer’s client, or with
a law firm representing the opponent, such discussions could
materially limit the lawyer’s representation of the client. In
addition, a lawyer may not allow related business interests to
affect representation, for example, by referring clients to an
enterprise in which the lawyer has an undisclosed financial
interest. See Rule 1.8 for specific Rules pertaining to a number
of personal interest conflicts, including business transactions
with clients; see also Rule 1.10 (personal interest conflicts
under Rule 1.7 ordinarily are not imputed to other lawyers in
a law firm).
When lawyers representing different clients in the same
matter or in substantially related matters are closely related
by blood or marriage, there may be a significant risk that
client confidences will be revealed and that the lawyer’s family
relationship will interfere with both loyalty and independent
professional judgment. As a result, each client is entitled to
know of the existence and implications of the relationship
between the lawyers before the lawyer agrees to undertake
the representation. Thus, a lawyer related to another lawyer,
e.g., as parent, child, sibling or spouse, ordinarily may not
represent a client in a matter where that lawyer is representing
another party, unless each client gives informed consent. The
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disqualification arising from a close family relationship is per-
sonal and ordinarily is not imputed to members of firms with
whom the lawyers are associated. See Rule 1.10.
A lawyer is prohibited from engaging in a sexual relationship
with a client unless the sexual relationship predates the forma-
tion of the client-lawyer relationship. See Rule 1.8 (j).
Interest of Person Paying for a Lawyer’s Service. A
lawyer may be paid from a source other than the client, includ-
ing a co-client, if the client is informed of that fact and consents
and the arrangement does not compromise the lawyer’s duty
of loyalty or independent judgment to the client. See Rule
1.8 (f). If acceptance of the payment from any other source
presents a significant risk that the lawyer’s representation of
the client will be materially limited by the lawyer’s own interest
in accommodating the person paying the lawyer’s fee or by
the lawyer’s responsibilities to a payer who is also a co-client,
then the lawyer must comply with the requirements of subsec-
tion (b) before accepting the representation, including
determining whether the conflict is consentable and, if so, that
the client has adequate information about the material risks
of the representation.
Prohibited Representations. Ordinarily, clients may con-
sent to representation notwithstanding a conflict. However, as
indicated in subsection (b), some conflicts are noncon-
sentable, meaning that the lawyer involved cannot properly
ask for such agreement or provide representation on the basis
of the client’s consent. When the lawyer is representing more
than one client, the question of consentability must be resolved
as to each client.
Consentability is typically determined by considering
whether the interests of the clients will be adequately protected
if the clients are permitted to give their informed consent to
representation burdened by a conflict of interest. Thus, under
subsection (b) (1), representation is prohibited if in the circum-
stances the lawyer cannot reasonably conclude that the lawyer
will be able to provide competent and diligent representation.
See Rule 1.1 (competence) and Rule 1.3 (diligence).
Subsection (b) (2) describes conflicts that are noncon-
sentable because the representation is prohibited by applica-
ble law.
Subsection (b) (3) describes conflicts that are noncon-
sentable because of the institutional interest in vigorous devel-
opment of each client’s position when the clients are aligned
directly against each other in the same litigation or the same
proceeding before any tribunal. Whether clients are aligned
directly against each other within the meaning of this para-
graph requires examination of the context of the proceeding.
Although this paragraph does not preclude a lawyer’s multiple
representation of adverse parties to a mediation (because
mediation is not a proceeding before a ‘‘tribunal’’ under Rule
1.0 [n]), such representation may be precluded by subsection
(b) (1).
Informed Consent. Informed consent requires that each
affected client be aware of the relevant circumstances and of
the material and reasonably foreseeable ways that the conflict
could have adverse effects on the interests of that client. See
Rule 1.0 (f) (informed consent). The information required
depends on the nature of the conflict and the nature of the
risks involved. When representation of multiple clients in a
single matter is undertaken, the information must include the
implications of the common representation, including possible
effects on loyalty,confidentiality and the attorney-client privi-
lege and the advantages and risks involved. See second and
third paragraphs under the ‘‘Special Considerations in Com-
mon Representation’’ heading in this Commentary, below
(effect of common representation on confidentiality).
RULES OF PROFESSIONAL CONDUCTRule 1.7
Under some circumstances it may be impossible to make
the disclosure necessary to obtain consent. For example,
when the lawyer represents different clients in related matters
and one of the clients refuses to consent to the disclosure
necessary to permit the other client to make an informed deci-
sion, the lawyer cannot properly ask the latter to consent. In
some cases the alternative to common representation can be
that each party may have to obtain separate representation
with the possibility of incurring additional costs. These costs,
along with the benefits of securing separate representation,
are factors that may be considered by the affected client in
determining whether common representation is in the cli-
ent’s interests.
Consent Confirmed in Writing. Subsection (b) requires
the lawyer to obtain the informed consent of the client, con-
firmed in writing. Such a writing may consist of a document
executed by the client or one that the lawyer promptly records
and transmits to the client following an oral consent. See
Rule 1.0 (c); see also Rule 1.0 (o) (writing includes electronic
transmission). If it is not feasible to obtain or transmit the
writing at the time the client gives informed consent, then the
lawyer must obtain or transmit it within a reasonable time
thereafter. See Rule 1.0 (c). The requirement of a writing does
not supplant the need in most cases for the lawyer to talk
with the client, to explain the risks and advantages, if any, of
representation burdened with a conflict of interest, as well as
reasonably available alternatives, and to afford the client a
reasonable opportunity to consider the risks and alternatives
and to raise questions and concerns. Rather, the writing is
required in order to impress upon clients the seriousness of
the decision the client is being asked to make and to avoid
disputes or ambiguities that might later occur in the absence
of a writing.
Revoking Consent. A client who has given consent to a
conflict may revoke the consent and, like any other client, may
terminate the lawyer’s representation at any time. Whether
revoking consent to the client’s own representation precludes
the lawyer from continuing to represent other clients depends
on the circumstances, including the nature of the conflict,
whether the client revoked consent because of a material
change in circumstances, the reasonable expectations of the
other clients and whether material detriment to the other clients
or the lawyer would result.
Consent to Future Conflict. Whether a lawyer may prop-
erly request a client to waive conflicts that might arise in the
future is subject to the test of subsection (b). The effectiveness
of such waivers is generally determined by the extent to which
the client reasonably understands the material risks that the
waiver entails. The more comprehensive the explanation of
the types of future conflicts that might arise and the actual
and reasonably foreseeable adverse consequences of those
conflicts, the greater the likelihood that the client will have the
requisite understanding. Thus, if the client agrees to consent
to a particular type of conflict with which the client is already
familiar, then the consent ordinarily will be effective with regard
to that type of conflict. If the consent is general and open-
ended, then the consent ordinarily will be ineffective, because
it is not reasonably likely that the client will have understood
the material risks involved. On the other hand, if the client is
an experienced user of the legal services involved and is
reasonably informed regarding the risk that a conflict may
arise, such consent is more likely to be effective, particularly
if, e.g., the client is independently represented by other counsel
in giving consent and the consent is limited to future conflicts
unrelated to the subject of the representation. In any case,
advance consent cannot be effective if the circumstances that
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materialize in the future are such as would make the conflict
nonconsentable under subsection (b).
Conflicts in Litigation. Subsection (b) (3) prohibits repre-
sentation of opposing parties in the same litigation, regardless
of the clients’ consent. On the other hand, simultaneous repre-
sentation of parties whose interests in litigation may conflict,
such as coplaintiffs or codefendants, is governed by subsec-
tion (a) (2). A conflict may exist by reason of substantial dis-
crepancy in the parties’ testimony, incompatibility in positions
in relation to an opposing party or the fact that there are
substantially different possibilities of settlement of the claims
or liabilities in question. Such conflicts can arise in criminal
cases as well as civil. The potential for conflict of interest in
representing multiple defendants in a criminal case is so grave
that ordinarily a lawyer should decline to represent more than
one codefendant. On the other hand, common representation
of persons having similar interests in civil litigation is proper
if the requirements of subsection (b) are met.
Ordinarily, a lawyer may take inconsistent legal positions
in different tribunals at different times on behalf of different
clients. The mere fact that advocating a legal position on behalf
of one client might create precedent adverse to the interests
of a client represented by the lawyer in an unrelated matter
does not create a conflict of interest. A conflict of interest
exists, however, if there is a significant risk that a lawyer’s
action on behalf of one client will materially limit the lawyer’s
effectiveness in representing another client in a different case;
for example, when a decision favoring one client will create
a precedent likely to seriously weaken the position taken on
behalf of the other client. Factors relevant in determining
whether the clients need to be advised of the risk include:
where the cases are pending, whether the issue is substantive
or procedural, the temporal relationship between the matters,
the significance of the issue to the immediate and long-term
interests of the clients involved and the clients’ reasonable
expectations in retaining the lawyer. If there is significant risk
of material limitation, then absent informed consent of the
affected clients, the lawyer must refuse one of the representa-
tions or withdraw from one or both matters.
When a lawyer represents or seeks to represent a class of
plaintiffs or defendants in a class action lawsuit, unnamed
members of the class are ordinarily not considered to be clients
of the lawyer for purposes of applying subsection (a) (1) of
this Rule. Thus, the lawyer does not typically need to get the
consent of such a person before representing a client suing
the person in an unrelated matter. Similarly, a lawyer seeking
to represent an opponent in a class action does not typically
need the consent of an unnamed member of the class whom
the lawyer represents in an unrelated matter.
Nonlitigation Conflicts. Conflicts of interest under subsec-
tions (a) (1) and (a) (2) arise in contexts other than litigation.
For a discussion of directly adverse conflicts in transactional
matters, see second paragraph under ‘‘Identifying Conflicts of
Interest: Directly Adverse’’ heading in this Commentary,
above. Relevant factors in determining whether there is signifi-
cant risk of material limitation include the duration and intimacy
of the lawyer’s relationship with the client or clients involved,
the functions being performed by the lawyer, the likelihood
that disagreements will arise and the likely prejudice to the
client from the conflict. The question is often one of proximity
and degree. See first paragraph under ‘‘Identifying Conflicts
of Interest: Material Limitation’’ heading in this Commentary,
above.
For example, conflict questions may also arise in estate
planning and estate administration. A lawyer may be called
upon to prepare wills for several family members, such as
husband and wife, and, depending upon the circumstances,
RULES OF PROFESSIONAL CONDUCT Rule 1.7
a conflict of interest may be present. In estate administration,
the identity of the client may be unclear under the law of a
particular jurisdiction. Under one view, the client is the fidu-
ciary; under another view the client is the estate or trust,
including its beneficiaries. In order to comply with conflict of
interest rules, the lawyer should make clear the lawyer’s rela-
tionship to the parties involved.
Whether a conflict is consentable depends on the circum-
stances. For example, a lawyer may not represent multiple
parties to a negotiation whose interests are fundamentally
antagonistic to each other, but common representation is per-
missible where the clients are generally aligned in interest
even though there is some difference in interest among them.
Thus, a lawyer may seek to establish or adjust a relationship
between clients on an amicable and mutually advantageous
basis; for example, in helping to organize a business in which
two or more clients are entrepreneurs, working out the financial
reorganization of an enterprise in which two or more clients
have an interest or arranging a property distribution in settle-
ment of an estate. The lawyer seeks to resolve potentially
adverse interests by developing the parties’ mutual interests.
Otherwise, each party might have to obtain separate represen-
tation, with the possibility of incurring additional cost, complica-
tion or even litigation. Given these and other relevant factors,
the clients may prefer that the lawyer act for all of them.
Special Considerations in Common Representation. In
considering whether to represent multiple clients in the same
matter, a lawyer should be mindful that if the common repre-
sentation fails because the potentially adverse interests cannot
be reconciled, the result can be additional cost, embar-
rassment and recrimination. Ordinarily, the lawyer will be
forced to withdraw from representing all of the clients if the
common representation fails. In some situations, the risk of
failure is so great that multiple representation is plainly impos-
sible. For example, a lawyer cannot undertake common repre-
sentation of clients where contentious litigation or negotiations
between them are imminent or contemplated. Moreover,
because the lawyer is required to be impartial between com-
monly represented clients, representation of multiple clients is
improper when it is unlikely that impartiality can be maintained.
Generally, if the relationship between the parties has already
assumed antagonism, the possibility that the clients’ interests
can be adequately served by common representation is not
very good. Other relevant factors are whether the lawyer sub-
sequently will represent both parties on a continuing basis
and whether the situation involves creating or terminating a
relationship between the parties.
A particularly important factor in determining the appropri-
ateness of common representation is the effect on client-law-
yer confidentiality and the attorney-client privilege.
As to the duty of confidentiality, continued common repre-
sentation will almost certainly be inappropriate if one client
asks the lawyer not to disclose to the other client information
relevant to the common representation. This is so because
the lawyer has an equal duty of loyalty to each client, and the
lawyer should inform each client that each client has the right
to be informed of anything bearing on the representation that
might affect that client’s interests and the right to expect that
the lawyer will use that information to that client’s benefit. See
Rule 1.4. To that end, the lawyer must, at the outset of the
common representation and as part of the process of obtaining
each client’s informed consent, advise each clientthat informa-
tion will be shared and that the lawyer will have to withdraw
if one client decides prior to disclosure that some matter mate-
rial to the representation should be disclosed to the lawyer
but be kept from the other. In limited circumstances, it may
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be appropriate for the lawyer to proceed with the representa-
tion when the clients have agreed, after being properly
informed, that the lawyer will keep certain information confi-
dential. For example, the lawyer may reasonably conclude
that failure to disclose one client’s trade secrets to another
client will not adversely affect representation involving a joint
venture between the clients and agree to keep that information
confidential with the informed consent of both clients.
When seeking to establish or adjust a relationship between
clients, the lawyer should make clear that the lawyer’s role is
not that of partisanship normally expected in other circum-
stances and, thus, that the clients may be required to assume
greater responsibility for decisions than when each client is
separately represented. Any limitations on the scope of the
representation made necessary as a result of the common
representation should be fully explained to the clients at the
outset of the representation. See Rule 1.2 (c).
Subject to the above limitations, each client in the common
representation has the right to loyal and diligent representation
and the protection of Rule 1.9 concerning the obligations to
a former client. The client also has the right to discharge the
lawyer as stated in Rule 1.16.
Organizational Clients. A lawyer who represents a corpo-
ration or other organization does not, by virtue of that represen-
tation, necessarily represent any constituent or affiliated
organization, such as a parent or subsidiary. See Rule 1.13
(a). Thus, the lawyer for an organization is not barred from
accepting representation adverse to an affiliate in an unrelated
matter, unless the circumstances are such that the affiliate
should also be considered a client of the lawyer, there is
an understanding between the lawyer and the organizational
client that the lawyer will avoid representation adverse to the
client’s affiliates, or the lawyer’s obligations to either the organi-
zational client or the new client are likely to limit materially the
lawyer’s representation of the other client.
A lawyer for a corporation or other organization who is also
a member of its board of directors should determine whether
the responsibilities of the two roles may conflict. The lawyer
may be called on to advise the corporation in matters involving
actions of the directors. Consideration should be given to the
frequency with which such situations may arise, the potential
intensity of the conflict, the effect of the lawyer’s resignation
from the board and the possibility of the corporation’s obtaining
legal advice from another lawyer in such situations. If there
is material risk that the dual role will compromise the lawyer’s
independence of professional judgment, the lawyer should not
serve as a director or should cease to act as the corporation’s
lawyer when conflicts of interest arise. The lawyer should
advise the other members of the board that in some circum-
stances matters discussed at board meetings while the lawyer
is present in the capacity of director might not be protected
by the attorney-client privilege and that conflict of interest
considerations might require the lawyer’s recusal as a director
or might require the lawyer and the lawyer’s firm to decline
representation of the corporation in a matter.
Conflict Charged by an Opposing Party. Resolving ques-
tions of conflict of interest is primarily the responsibility of the
lawyer undertaking the representation. In litigation, a court
may raise the question when there is reason to infer that the
lawyer has neglected the responsibility. In a criminal case,
inquiry by the court is generally required when a lawyer repre-
sents multiple defendants. Where the conflict is such as clearly
to call in question the fair or efficient administration of justice,
opposing counsel may properly raise the question. Such an
objection should be viewed with caution, however, for it can
be misused as a technique of harassment.
RULES OF PROFESSIONAL CONDUCTRule 1.8
Rule 1.8. Conflict of Interest: Prohibited
Transactions
(a) A lawyer shall not enter into a business
transaction, including investment services, with a
client or former client or knowingly acquire an
ownership, possessory, security or other pecuni-
ary interest adverse to a client or former client
unless:
(1) The transaction and terms on which the law-
yer acquires the interest are fair and reasonable
to the client or former client and are fully disclosed
and transmitted in writing to the client or former
client in a manner that can be reasonably under-
stood by the client or former client;
(2) The client or former client is advised in writ-
ing that the client or former client should consider
the desirability of seeking and is given a reason-
able opportunity to seek the advice of independent
legal counsel in the transaction;
(3) The client or former client gives informed
consent in writing signed by the client or former
client, to the essential terms of the transaction
and the lawyer’s role in the transaction, including
whether the lawyer is representing the client in
the transaction;
(4) With regard to a business transaction, the
lawyer advises the client or former client in writing
either (A) that the lawyer will provide legal services
to the client or former client concerning the trans-
action, or (B) that the lawyer will not provide legal
services to the client or former client and that the
lawyer is involved as a business person only and
not as a lawyer representing the client or former
client and that the lawyer is not one to whom the
client or former client can turn for legal advice
concerning the transaction; and
(5) With regard to the providing of investment
services, the lawyer advises the client or former
client in writing (A) whether such services are
covered by legal liability insurance or other insur-
ance, and either (B) that the lawyer will provide
legal services to the client or former client con-
cerning the transaction, or (C) that the lawyer will
not provide legal services to the client or former
client and that the lawyer is involved as a business
person only and not as a lawyer representing the
client or former client and that the lawyer is not
one to whom the client or former client can turn
to for legal services concerning the transaction.
Investment services shall only apply where the
lawyer has either a direct or indirect control over
the invested funds and a direct or indirect interest
in the underlying investment.
For purposes of subsection (a) (1) through (a)
(5), the phrase ‘‘former client’’ shall mean a client
for whom the two-year period starting from the
conclusion of representation has not expired.
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(b) A lawyer shall not use information relating
to representation of a client to the disadvantage of
the client unless the client gives informed consent,
except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift
from a client, including a testamentary gift, or pre-
pare on behalf of a client an instrument giving
the lawyer or a person related to the lawyer any
substantial gift, unless the lawyer or other recipi-
ent of the gift is related to the client. For purposes
of this paragraph, related persons include a
spouse, child, grandchild, parent, grandparent or
other relative or individual with whom the lawyer or
the client maintains a close, familial relationship.
(d) Prior to the conclusion of representation of
a client, a lawyer shall not make or negotiate an
agreement giving the lawyer literary or media
rights to a portrayal or account based in substan-
tial part on information relating to the represen-
tation.
(e) A lawyer shall not provide financial assis-
tance to a client in connection with pending or
contemplated litigation, except that:
(1) A lawyer may pay court costs and expenses
of litigation on behalf of a client, the repayment
of which may be contingent on the outcome of
the matter;
(2) A lawyer representing an indigent client may
pay court costs and expenses of litigation on
behalf of the client.
(f) A lawyer shall not accept compensation for
representing a client from one other than the cli-
ent unless:
(1) The client gives informed consent; subject
to revocation by the client, such informed consent
shall be implied where the lawyer is retained to
represent a client by a third party obligated under
the terms of a contract to provide the client with
a defense;
(2) There is no interference with the lawyer’s
independence of professional judgment or with
the client-lawyer relationship; and
(3) Information relating to representation of a
client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients
shall not participate in making an aggregate settle-
ment of the claims of or against the clients, or in
a criminal case an aggregated agreement as to
guilty or nolo contendere pleas, unless each client
gives informed consent, in a writing signed by the
client. The lawyer’s disclosure shall include the
existence and nature of all the claims or pleas
involved and of the participation of each person
in the settlement. Subject to revocation by the
client and to the terms of the contract, such
informed consent shall be implied and need not
RULES OF PROFESSIONAL CONDUCT Rule 1.8
be in writing where the lawyer is retained to repre-
sent a client by a third party obligated under the
terms of a contract to provide the client with a
defense and indemnity for the loss and the third
party elects to settle a matter without contribution
by the client.
(h) A lawyer shall not:
(1) Make an agreement prospectively limiting
the lawyer’s liability to a client for malpractice
unless the client is independently represented in
making the agreement; or
(2) Settle a claim or potential claim for such
liability with an unrepresented client or former cli-
ent unless that person is advised in writing of the
desirability of seeking and is given a reasonable
opportunity to seek the advice of independent
legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary inter-
est in the cause of action or subject matter of
litigation the lawyer is conducting for a client,
except that the lawyer may:
(1) Acquire a lien granted by law to secure the
lawyer’s fee or expenses; and
(2) Contract with a client for a reasonable con-
tingent fee in a civil case.
(j) A lawyer shall not have sexual relations with
a client unless a consensual sexual relationship
existed between them when the client-lawyer rela-
tionship commenced.
(k) While lawyers are associated in a firm, a
prohibition in the foregoing subsection (a) through
(i) that applies to any one of them shall apply to
all of them.
(P.B. 1978-1997, Rule 1.8.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 29, 2007, to take
effect Jan. 1, 2008.)
COMMENTARY: Business Transactions between Client
and Lawyer. Subsection (a) expressly applies to former clients
as well as existing clients. A lawyer’s legal skill and training,
together with the relationship of trust and confidence between
lawyer and client, create the possibility of overreaching when
the lawyer participates in a business, property or financial
transaction with a client, for example, a loan or sales transac-
tion or a lawyer investment on behalf of a client. The require-
ments of subsection (a) must be met even when the transaction
is not closely related to the subject matter of the representation,
as when a lawyer drafting a will for a client learns that the
client needs money for unrelated expenses and offers to make
a loan to the client. It also applies to lawyers purchasing prop-
erty from estates they represent. It does not apply to ordinary
fee arrangements between client and lawyer, which are gov-
erned by Rule 1.5, although its requirements must be met
when the lawyer accepts an interest in the client’s business
or other nonmonetary property as payment of all or part of a
fee. In addition, the Rule does not apply to standard commer-
cial transactions between the lawyer and the client for products
or services that the client generally markets to others, for
example, banking or brokerage services, products manufac-
tured or distributed by the client, and utilities’ services. In such
transactions, the lawyer has no advantage in dealing with the
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client, and the restrictions in subsection (a) are unnecessary
and impracticable.
Subsection (a) (1) requires that the transaction itself be fair
to the client and that its essential terms be communicated
to the client, in writing, in a manner that can be reasonably
understood. Subsection (a) (2) requires that the client also be
advised, in writing, of the desirability of seeking the advice of
independent legal counsel. It also requires that the client be
given a reasonable opportunity to obtain such advice. Subsec-
tion (a) (3) requires that the lawyer obtain the client’s informed
consent, in a writing signed by the client, both to the essential
terms of the transaction and to the lawyer’s role. When neces-
sary, the lawyer should discuss both the material risks of
the proposed transaction, including any risk presented by the
lawyer’s involvement, and the existence of reasonably avail-
able alternatives and should explain why the advice of inde-
pendent legal counsel is desirable. See Rule 1.0 (f) (definition
of informed consent).
The risk to a client is greatest when the client expects the
lawyer to represent the client in the transaction itself or when
the lawyer’s financial interest otherwise poses a significant risk
that the lawyer’s representation of the client will be materially
limited by the lawyer’s financial interest in the transaction.
Here, the lawyer’s role requires that the lawyer must comply,
not only with the requirements of subsection (a), but also with
the requirements of Rule 1.7. Under that Rule, the lawyer must
disclose the risks associated with the lawyer’s dual role as
both legal adviser and participant in the transaction, such as
the risk that the lawyer will structure the transaction or give
legal advice in a way that favors the lawyer’s interests at the
expense of the client. Moreover, the lawyer must obtain the
client’s informed consent. In some cases, the lawyer’s interest
may be such that Rule 1.7 will preclude the lawyer from seeking
the client’s consent to the transaction.
If the client is independently represented in the transaction,
subsection (a) (2) of this Rule is inapplicable, and the subsec-
tion (a) (1) requirement for full disclosure is satisfied either by
a written disclosure by the lawyer involved in the transaction
or by the client’s independent counsel. The fact that the client
was independently represented in the transaction is relevant
in determining whether the agreement was fair and reasonable
to the client as subsection (a) (1) further requires.
Use of Information Related to Representation. Use of
information relating to the representation to the disadvantage
of the client violates the lawyer’s duty of loyalty. Subsection
(b) applies when the information is used to benefit either the
lawyer or a third person, such as another client or business
associate of the lawyer. For example, if a lawyer learns that
a client intends to purchase and develop several parcels of
land, the lawyer may not use that information to purchase one
of the parcels in competition with the client or to recommend
that another client make such a purchase. The Rule does not
prohibit uses that do not disadvantage the client. For example,
a lawyer who learns a government agency’s interpretation of
trade legislation during the representation of one client may
properly use that information to benefit other clients. Subsec-
tion (b) prohibits disadvantageous use of client information
unless the client gives informed consent, except as permitted
or required by these Rules. See Rules 1.2 (d), 1.6, 1.9 (c),
3.3, 4.1 (b), 8.1 and 8.3.
Gifts to Lawyers. 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 a client offers the
lawyer a more substantial gift, subsection (c) does not prohibit
the lawyer from accepting it, although such a gift may be
voidable by the client under the doctrine of undue influence,
RULES OF PROFESSIONAL CONDUCTRule 1.8
which treats client gifts as presumptively fraudulent. In any
event, due to concerns about overreaching and imposition on
clients, a lawyer may not suggest that a substantial gift be
made to the lawyer or for the lawyer’s benefit, except where
the lawyer is related to the client as set forth in paragraph (c).
If effectuation of a substantial gift requires preparing a legal
instrument such as a will or conveyance, the client should
have the detached advice that another lawyer can provide.
The sole exception to this Rule is where the client is a relative
of the donee.
This Rule does not prohibit a lawyer from seeking to have
the lawyer or a partner or associate of the lawyer named as
executor of the client’s estate or to another potentially lucrative
fiduciary position. Nevertheless, such appointments will be
subject to the general conflict of interest provision in Rule 1.7
when there is a significant risk that the lawyer’s interest in
obtaining the appointment will materially limit the lawyer’s inde-
pendent professional judgment in advising the client concern-
ing the choice of an executor or other fiduciary. In obtaining
the client’s informed consent to the conflict, the lawyer should
advise the client concerning the nature and extent of the law-
yer’s financial interest in the appointment, as well as the avail-
ability of alternative candidates for the position.
Literary Rights. An agreement by which a lawyer acquires
literary or media rights concerning the conduct of the represen-
tation 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. Subsection (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 subsections (a) and (i).
Financial Assistance. Lawyers may not subsidize lawsuits
or administrative proceedings brought on behalf of their clients,
including making or guaranteeing loans to their clients for living
expenses, because to do so would encourage clients to pursue
lawsuits that might not otherwise be brought and because
such assistance gives lawyers too great a financial stake in
the litigation. These dangers do not warrant a prohibition on
a lawyer lending a client court costs and litigation expenses,
including the expenses of medical examination and the costs
of obtaining and presenting evidence, because these
advances are virtually indistinguishable from contingent fees
and help ensure access to the courts. Similarly, an exception
allowing lawyers representing indigent clients to pay court
costs and litigation expenses regardless of whether these
funds will be repaid is warranted.
Person Paying for a Lawyer’s Services. Subsection (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 confi-
dentiality and Rule 1.7 concerning conflict of interest. Where
the client is a class, consent may be obtained on behalf of
the class by court-supervised procedure.
Lawyers are frequently asked to represent a client under
circumstances in which a third person will compensate the
lawyer, in whole or in part. The third person might be a relative
or friend, an indemnitor (such as a liability insurance company)
or a co-client (such as a corporation sued along with one or
more of its employees). Because third-party payers frequently
have interests that differ from those of the client, including
interests in minimizing the amount spent on the representation
and in learning how the representation is progressing, lawyers
are prohibited from accepting or continuing such representa-
tions unless the lawyer determines that there will be no interfer-
ence with the lawyer’s independent professional judgment and
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there is informed consent from the client. See also Rule 5.4
(c) (prohibiting interference with a lawyer’s professional judg-
ment by one who recommends, employs or pays the lawyer
to render legal services for another).
Sometimes, it will be sufficient for the lawyer to obtain the
client’s informed consent regarding the fact of the payment
and the identity of the third-party payer. If, however, the fee
arrangement creates a conflict of interest for the lawyer, then
the lawyer must comply with Rule 1.7. The lawyer must also
conform to the requirements of Rule 1.6 concerning confidenti-
ality. Under Rule 1.7 (a), a conflict of interest exists if there
is significant risk that the lawyer’s representation of the client
will be materially limited by the lawyer’s own interest in the
fee arrangement or by the lawyer’s responsibilities to the third-
party payer (for example, when the third-party payer is a co-
client). Under Rule 1.7 (b), the lawyer may accept or continue
the representation with the informed consent of each affected
client, unless the conflict is nonconsentable under that subsec-
tion. Under Rule 1.7 (b), the informed consent must be con-
firmed in writing.
Aggregate Settlements. Differences in willingness to
make or accept an offer of settlement are among the risks of
common representation of multiple clients by a single lawyer.
Under Rule 1.7, this is one of the risks that should be discussed
before undertaking the representation, as part of the process
of obtaining the clients’ informed consent. In addition, Rule
1.2 (a) protects each client’s right to have the final say in
deciding whether to accept or reject an offer of settlement and
in deciding whether to enter a guilty or nolo contendere plea
in a criminal case. The rule stated in this paragraph is a corol-
lary of both these Rules and provides that, before any settle-
ment offer or plea bargain is made or accepted on behalf of
multiple clients, the lawyer must inform each of them about
all the material terms of the settlement, including what the
other clients will receive or pay if the settlement or plea offer is
accepted. See also Rule 1.0 (f) (definition of informed consent).
Lawyers representing a class of plaintiffs or defendants, or
those proceeding derivatively, may not have a full client-lawyer
relationship with each member of the class; nevertheless, such
lawyers must comply with applicable rules regulating notifica-
tion of class members and other procedural requirements
designed to ensure adequate protection of the entire class.
Limiting Liability and Settling Malpractice Claims.
Agreements prospectively limiting a lawyer’s liability for mal-
practice are prohibited unless the client is independently repre-
sented in making the agreement because they are likely to
undermine competent and diligent representation. Also, many
clients are unable to evaluate the desirability of making such
an agreement before a dispute has arisen, particularly if they
are then represented by the lawyer seeking the agreement.
This subsection does not, however, prohibit a lawyer from
entering into an agreement with the client to arbitrate legal
malpractice claims, provided such agreements are enforce-
able and the client is fully informed of the scope and effect of
the agreement. Nor does this subsection limit the ability of
lawyers to practice in the form of a limited-liability entity, where
permitted by law, provided that each lawyer remains personally
liable to the client for his or her own conduct and the firm
complies with any conditions required by law, such as provi-
sions requiring client notification or maintenance of adequate
liability insurance. Nor does it prohibit an agreement in accord-
ance with Rule 1.2 that defines the scope of the representation,
although a definition of scope that makes the obligations of
representation illusory will amount to an attempt to limit liability.
Agreements settling a claim or a potential claim for malprac-
tice are not prohibited by this Rule. Nevertheless, in view of
the danger that a lawyer will take unfair advantage of an
RULES OF PROFESSIONAL CONDUCT Rule 1.9
unrepresented client or former client, the lawyer must first
advise such a person in writing of the appropriateness of
independent representation in connection with such a settle-
ment. In addition, the lawyer must give the client or former
client a reasonable opportunity to find and consult indepen-
dent counsel.
Acquiring Proprietary Interest in Litigation. Subsection
(i) states the traditional general rule that lawyers are prohibited
from acquiring a proprietary interest in litigation. Like subsec-
tion (e), the general rule, which has its basis in common-law
champerty and maintenance, is designed to avoid giving the
lawyer too great an interest in the representation. In addition,
when the lawyer acquires an ownership interest in the subject
of the representation, it will be more difficult for a client to
discharge the lawyer if the client so desires. The Rule is subject
to specific exceptions developed in decisional law and contin-
ued in these Rules. The exception for certain advances of the
costs of litigation is set forth in subsection (e). In addition,
subsection (i) sets forth exceptions for liens authorized by law
to secure the lawyer’s fees or expenses and contracts for
reasonable contingent fees. The law of each jurisdiction deter-
mines which liens are authorized by law. These may include
liens granted by statute, liens originating in common law and
liens acquired by contract with the client. When a lawyer
acquires by contract a security interest in property other than
that recovered through the lawyer’s efforts in the litigation,
such an acquisition is a business or financial transaction with
a client and is governed by the requirements of subsection
(a). Contracts for contingent fees in civil cases are governed
by Rule 1.5.
Client-Lawyer Sexual Relationships. The relationship
between lawyer and client is a fiduciary one in which the lawyer
occupies the highest position of trust and confidence. The
relationship is almost always unequal; thus, a sexual relation-
ship between lawyer and client can involve unfair exploitation
of the lawyer’s fiduciary role, in violation of the lawyer’s basic
ethical obligation not to use the trust of the client to the client’s
disadvantage. In addition, such a relationship presents a signif-
icant danger that, because of the lawyer’s emotional involve-
ment, the lawyer will be unable to represent the client without
impairment of the exercise of independent professional judg-
ment. Moreover, a blurred line between the professional and
personal relationships may make it difficult to predict to what
extent client confidences will be protected by the attorney-
client evidentiary privilege, since client confidences are pro-
tected by privilege only when they are imparted in the context
of the client-lawyer relationship. Because of the significant
danger of harm to client interest and because the client’s own
emotional involvement renders it unlikely that the client could
give adequate informed consent, this Rule prohibits the lawyer
from having sexual relations with a client regardless of whether
the relationship is consensual and regardless of the absence
of prejudice to the client.
Sexual relationships that predate the client-lawyer relation-
ship are not prohibited. Issues relating to the exploitation of
the fiduciary relationship and client dependency are dimin-
ished when the sexual relationship existed prior to the com-
mencement of the client-lawyer relationship. However, before
proceeding with the representation in these circumstances,
the lawyer should consider whether the lawyer’s ability to rep-
resent the client will be materially limited by the relationship.
See Rule 1.7 (a) (2).
Imputation of Prohibitions. Under subsection (k), a prohi-
bition on conduct by an individual lawyer in subsections (a)
through (i) also applies to all lawyers associated in a firm with
the personally prohibited lawyer. The prohibition set forth in
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subsection (j) is personal and is not applied to associated
lawyers.
Rule 1.9. Duties to Former Clients
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
(a) A lawyer who has formerly represented a
client in a matter shall not thereafter represent
another person in the same or a substantially
related matter in which that person’s interests are
materially adverse to the interests of the former
client unless the former client gives informed con-
sent, confirmed in writing.
(b) A lawyer shall not knowingly represent a
person in the same or a substantially related mat-
ter in which a firm with which the lawyer formerly
was associated had previously represented a
client
(1) whose interests are materially adverse to
that person; and
(2) about whom the lawyer had acquired infor-
mation protected by Rules 1.6 and 1.9 (c) that is
material to the matter; unless the former client
gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a
client in a matter or whose present or former firm
has formerly represented a client in a matter shall
not thereafter:
(1) use information relating to the representa-
tion to the disadvantage of the former client except
as these Rules would permit or require with
respect to a client, or when the information has
become generally known; or
(2) reveal information relating to the representa-
tion except as these Rules would permit or require
with respect to a client.
(P.B. 1978-1997, Rule 1.9.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: After termination of a client-lawyer rela-
tionship, a lawyer has certain continuing duties with respect
to confidentiality and conflicts of interest and thus may not
represent another client except in conformity with this Rule.
Under this Rule, for example, a lawyer could not properly seek
to rescind on behalf of a new client a contract drafted on behalf
of the former client. So also a lawyer who has prosecuted an
accused person could not properly represent the accused in
a subsequent civil action against the government concerning
the same transaction. Nor could a lawyer who has represented
multiple clients in a matter represent one of the clients against
the interest of the others in the same or a substantially related
matter after a dispute arose among the clients in that matter,
unless all affected clients give informed consent. See last
paragraph of this Commentary, below. Current and former
government lawyers must comply with this Rule to the extent
required by Rule 1.11.
The scope of a ‘‘matter’’ for purposes of this Rule depends
on the facts of a particular situation or transaction. The lawyer’s
involvement in a matter can also be a question of degree.
When a lawyer has been directly involved in a specific transac-
tion, subsequent representation of other clients with materially
adverse interests in that transaction clearly is prohibited. On
the other hand, a lawyer who recurrently handled a type of
RULES OF PROFESSIONAL CONDUCTRule 1.9
problem for a former client is not precluded from later repre-
senting another client in a factually distinct problem of that
type even though the subsequent representation involves a
position adverse to the prior client. Similar considerations can
apply to the reassignment of military lawyers between defense
and prosecution functions within the same military jurisdic-
tions. The underlying question is whether the lawyer was so
involved in the matter that the subsequent representation can
be justly regarded as a changing of sides in the matter in
question.
Matters are ‘‘substantially related’’ for purposes of this Rule
if they involve the same transaction or legal dispute or if there
otherwise is a substantial risk that confidential factual informa-
tion as would normally have been obtained in the prior repre-
sentation would materially advance the client’s position in the
subsequent matter. For example, a lawyer who has repre-
sented a businessperson and learned extensive private finan-
cial information about that person may not then represent that
person’s spouse in seeking a divorce. Similarly, a lawyer who
has previously represented a client in securing environmental
permits to build a shopping center would be precluded from
representing neighbors seeking to oppose rezoning of the
property on the basis of environmental considerations; how-
ever, the lawyer would not be precluded, on the grounds of
substantial relationship, from defending a tenant of the com-
pleted shopping center in resisting eviction for nonpayment
of rent. Information that has been disclosed to the public or
to other parties adverse to the former client ordinarily will not
be disqualifying. Information acquired in a prior representation
may have been rendered obsolete by the passage of time, a
circumstance that may be relevant in determining whether two
representations are substantially related. In the case of an
organizational client, general knowledge of the client’s policies
and practices ordinarily will not preclude a subsequent repre-
sentation; on the other hand, knowledge of specific facts
gained in a prior representation that are relevant to the matter
in question ordinarily will preclude such a representation. A
former client is not required to reveal the confidential informa-
tion learned by the lawyer in order to establish a substantial
risk that the lawyer has confidential information to use in the
subsequent matter. A conclusion about the possession of such
information may be based on the nature of the services the
lawyer provided the former client and information that would
in ordinary practice be learned by a lawyer providing such
services.
Lawyers Moving between Firms. When lawyers have
been associated within a firm but then end their association,
the question of whether a lawyer should undertake representa-
tion is more complicated. There are several competing consid-
erations. First, the client previously represented by the former
firm must be reasonably assured that the principle of loyalty
to the client is not compromised. Second, the rule should not
be so broadly cast as to preclude other persons from having
reasonable choice of legal counsel. Third, the rule should not
unreasonably hamper lawyers from forming new associations
and taking on new clients after having left a previous associa-
tion. In this connection, it should be recognized that today
many lawyers practice in firms, that many lawyers to some
degree limit their practice to one field or another, and that
many move from one association to another several times in
their careers. If the concept of imputation were applied with
unqualified rigor, the result would be radical curtailment of the
opportunity of lawyers to move from one practice setting to
another and of the opportunity of clients to change counsel.
Subsection (b) operates to disqualify the lawyer only when
the lawyer involved has actual knowledge of information pro-
tected by Rules 1.6 and 1.9 (c). Thus, if a lawyer, while with
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one firm acquired no knowledge or information relating to a
particular client of the firm, and that lawyer later joined another
firm, neither the lawyer individually nor the second firm is
disqualified from representing another client in the same or a
related matter even though the interests of the two clients
conflict. See Rule 1.10 (b) for the restrictions on a firm once
a lawyer has terminated association with the firm.
Application of subsection (b) depends on a situation’s par-
ticular facts, aided by inferences, deductions or working pre-
sumptions that reasonably may be made about the way in
which lawyers work together. A lawyer may have general
access to files of all clients of a law firm and may regularly
participate in discussions of their affairs; it should be inferred
that such a lawyer in fact is privy to all information about all
the firm’s clients. In contrast, another lawyer may have access
to the files of only a limited number of clients and participate
in discussions of the affairs of no other clients; in the absence
of information to the contrary, it should be inferred that such
a lawyer in fact is privy to information about the clients actually
served but not those of other clients. In such an inquiry, the
burden of proof rests upon the firm whose disqualification
is sought.
Independent of the question of disqualification of a firm, a
lawyer changing professional association has a continuing
duty to preserve confidentiality of information about a client
formerly represented. See Rules 1.6 and 1.9 (c).
Subsection (c) provides that information acquired by the
lawyer in the course of representing a client may not subse-
quently be used or revealed by the lawyer to the disadvantage
of the client. However, the fact that a lawyer has once served
a client does not preclude the lawyer from using generally
known information about that client when later representing
another client.
The provisions of this Rule are for the protection of former
clients and can be waived if the client gives informed consent,
which consent must be confirmed in writing under subsections
(a) and (b). See Rule 1.0 (f). With regard to the effectiveness
of an advance waiver, see Commentary to Rule 1.7. With
regard to disqualification of a firm with which a lawyer is or
was formerly associated, see Rule 1.10.
Rule 1.10. Imputation of Conflicts of Inter-
est: General Rule
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
(a) While lawyers are associated in a firm, none
of them shall knowingly represent a client when
any one of them practicing alone would be prohib-
ited from doing so by Rules 1.7 or 1.9, unless:
(1) the prohibition is based on a personal inter-
est of the disqualified lawyer and does not present
a significant risk of materially limiting the repre-
sentation of the client by the remaining lawyers
in the firm; or
(2) the prohibition is based upon Rule 1.9 (a)
or 1.9 (b) and arises out of the disqualified lawyer’s
association with a prior firm, and
(A) the disqualified lawyer is timely screened
from any participation in the matter and is appor-
tioned no part of the fee therefrom;
(B) written notice is promptly given to any
affected former client to enable the former client
to ascertain compliance with the provisions of this
Rule, which shall include a description of the
RULES OF PROFESSIONAL CONDUCT Rule 1.10
screening procedures employed; a statement of
the firm’s and of the screened lawyer’s compli-
ance with these Rules; a statement that review
may be available before a tribunal; and an
agreement by the firm to respond promptly to any
written inquiries or objections by the former client
about the screening procedures; and
(C) certifications of compliance with these
Rules and with the screening procedures are pro-
vided to the former client by the screened lawyer
and by a partner of the firm, at reasonable inter-
vals upon the former client’s written request and
upon termination of the screening procedures.
(b) When a lawyer has terminated an associa-
tion with a firm, the firm is not prohibited from
thereafter representing a person with interests
materially adverse to those of a client represented
by the formerly associated lawyer and not cur-
rently represented by the firm, unless:
(1) The matter is the same or substantially
related to that in which the formerly associated
lawyer represented the client; and
(2) Any lawyer remaining in the firm has infor-
mation protected by Rules 1.6 and 1.9 (c) that is
material to the matter.
(c) A disqualification prescribed by this Rule
may be waived by the affected client under the
conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated
in a firm with former or current government law-
yers is governed by Rule 1.11.
(P.B. 1978-1997, Rule 1.10.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 15, 2012, to take
effect Jan. 1, 2013.)
COMMENTARY: Definition of ‘‘Firm.’’ For purposes of
the Rules of Professional Conduct, the term ‘‘firm’’ denotes
lawyers in a law partnership, professional corporation, sole
proprietorship or other association authorized to practice law;
or lawyers employed in a legal services organization or the
legal department of a corporation or other organization. See
Rule 1.0 (d). Whether two or more lawyers constitute a firm
within this definition can depend on the specific facts. See
Rule 1.0 and its Commentary.
Principles of Imputed Disqualification. The rule of
imputed disqualification stated in subsection (a) gives effect
to the principle of loyalty to the client as it applies to lawyers
who practice in a law firm. Such situations can be considered
from the premise that a firm of lawyers is essentially one lawyer
for purposes of the rules governing loyalty to the client, or
from the premise that each lawyer is vicariously bound by the
obligation of loyalty owed by each lawyer with whom the lawyer
is associated. Subsection (a) operates only among the lawyers
currently associated in a firm. When a lawyer moves from one
firm to another, the situation is governed by Rules 1.9 (b) and
1.10 (b).
The Rule in subsection (a) does not prohibit representation
where neither questions of client loyalty nor protection of confi-
dential information are presented. Where one lawyer in a firm
could not effectively represent a given client because of strong
political beliefs, for example, but that lawyer will do no work
on the case and the personal beliefs of the lawyer will not
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materially limit the representation by others in the firm, the
firm should not be disqualified. On the other hand, if an oppos-
ing party in a case were owned by a lawyer in the law firm,
and others in the firm would be materially limited in pursuing
the matter because of loyalty to that lawyer, the personal
disqualification of the lawyer would be imputed to all others
in the firm.
The Rule in subsection (a) also does not prohibit represen-
tation by others in the law firm where the person prohibited from
involvement in a matter is a nonlawyer, such as a paralegal
or legal secretary. Nor does subsection (a) prohibit representa-
tion if the lawyer is prohibited from acting because of events
before the person became a lawyer, for example, work that
the person did while a law student. Such persons, however,
must be screened from any personal participation in the matter
to avoid communication to others in the firm of confidential
information that both the nonlawyers and the firm have a legal
duty to protect. See Rules 1.0 (k) and 5.3.
Rule 1.10 (b) operates to permit a law firm, under certain
circumstances, to represent a person with interests directly
adverse to those of a client represented by a lawyer who
formerly was associated with the firm. The Rule applies regard-
less of when the formerly associated lawyer represented the
client. However, the law firm may not represent a person with
interests adverse to those of a present client of the firm, which
would violate Rule 1.7. Moreover, the firm may not represent
the person where the matter is the same or substantially
related to that in which the formerly associated lawyer repre-
sented the client and any other lawyer currently in the firm
has material information protected by Rules 1.6 and 1.9 (c).
Rule 1.10 (c) removes imputation with the informed consent
of the affected client or former client under the conditions
stated in Rule 1.7. The conditions stated in Rule 1.7 require
the lawyer to determine that the representation is not prohibited
by Rule 1.7 (b) and that each affected client or former client
has given informed consent to the representation, confirmed
in writing. In some cases, the risk may be so severe that the
conflict may not be cured by client consent. For a discussion
of the effectiveness of client waivers of conflicts that might
arise in the future, see Rule 1.7 and its commentary. For a
definition of informed consent, see Rule 1.0 (f).
Rule 1.10 (a) (2) similarly removes the imputation otherwise
required by Rule 1.10 (a), but unlike subsection (c), it does
so without requiring that there be informed consent by the
former client. Instead, it requires that the procedures laid out
in subparagraphs (A) through (C) of subsection (a) (2) be
followed. A description of effective screening mechanisms
appears in Rule 1.0 (l) and commentary thereto. Lawyers
should be aware, however, that, even where screening mecha-
nisms have been adopted, tribunals may consider additional
factors in ruling upon motions to disqualify a lawyer from pend-
ing litigation.
Subparagraph (A) of subsection (a) (2) does not prohibit
the screened lawyer from receiving a salary or partnership
share established by prior independent agreement, but that
lawyer may not receive compensation directly related to the
matter in which the lawyer is disqualified.
The notice required by subparagraph (B) of subsection (a)
(2) generally should include a description of the screened
lawyer’s prior representation and be given as soon as practica-
ble after the need for screening becomes apparent. It also
should include a statement by the screened lawyer and the
firm that the client’s material confidential information has not
been disclosed or used in violation of the Rules. The notice
is intended to enable the former client to evaluate and com-
ment upon the effectiveness of the screening procedures.
RULES OF PROFESSIONAL CONDUCTRule 1.10
The certifications required by subparagraph (C) of subsec-
tion (a) (2) give the former client assurance that the client’s
material confidential information has not been disclosed or
used inappropriately, either prior to timely implementation of
a screen or thereafter. If compliance cannot be certified, the
certificate must describe the failure to comply.
Where a lawyer has joined a private firm after having repre-
sented the government, imputation is governed by Rule 1.11
(b) and (c), not this Rule. Under Rule 1.11 (d), where a lawyer
represents the government after having served clients in pri-
vate practice, nongovernmental employment or in another gov-
ernment agency, former-client conflicts are not imputed to
government lawyers associated with the individually disquali-
fied lawyer.
Where a lawyer is prohibited from engaging in certain trans-
actions under Rule 1.8, subsection (k) of that Rule, and not
this Rule, determines whether that prohibition also applies to
other lawyers associated in a firm with the personally prohib-
ited lawyer.
Rule 1.11. Special Conflicts of Interest for
Former and Current Government Officers
and Employees
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
(a) Except as law may otherwise expressly per-
mit, a lawyer who has formerly served as a public
officer or employee of the government:
(1) is subject to Rule 1.9 (c); and
(2) shall not otherwise represent a client in con-
nection with a matter in which the lawyer partici-
pated personally and substantially as a public
officer or employee, unless the appropriate gov-
ernment agency gives its informed consent, con-
firmed in writing, to the representation.
(b) When a lawyer is disqualified from represen-
tation under subsection (a), no lawyer in a firm
with which that lawyer is associated may know-
ingly undertake or continue representation in such
a matter unless:
(1) The disqualified lawyer is timely screened
from any participation in the matter and is appor-
tioned no part of the fee therefrom; and
(2) Written notice is promptly given to the appro-
priate government agency to enable it to ascertain
compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly per-
mit, a lawyer having information that the lawyer
knows is confidential government information
about a person acquired when the lawyer was a
public officer or employee, may not represent a
private client whose interests are adverse to that
person in a matter in which the information could
be used to the material disadvantage of that per-
son. As used in this Rule, the term ‘‘confidential
government information’’ means information that
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.
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A firm with which that lawyer is associated may
undertake or continue representation in the matter
only if the disqualified lawyer is timely screened
from any participation in the matter and is appor-
tioned no part of the fee therefrom.
(d) Except as law may otherwise expressly per-
mit, a lawyer currently serving as a public officer
or employee:
(1) Is subject to Rules 1.7 and 1.9; and
(2) Shall not:
(i) Participate in a matter in which the lawyer
participated personally and substantially while in
private practice or nongovernmental employment,
unless the appropriate government agency gives
its informed consent, confirmed in writing; or
(ii) Negotiate for private employment with any
person who is involved as a party or as lawyer
for a party in a matter in which the lawyer is partici-
pating personally and substantially; except that a
lawyer serving as a law clerk to a judge, other
adjudicative officer or arbitrator may negotiate for
private employment as permitted by Rule 1.12
(b) and subject to the conditions stated in Rule
1.12 (b).
(e) As used in this Rule, the term ‘‘matter’’
includes:
(1) Any judicial or other proceeding, application,
request for a ruling or other determination, con-
tract, claim, controversy, investigation, charge,
accusation, arrest or other particular matter
involving a specific party or parties, and
(2) Any other matter covered by the conflict of
interest rules of the appropriate government
agency.
(P.B. 1978-1997, Rule 1.11.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: A lawyer who has served or is currently
serving as a public officer or employee is personally subject
to the Rules of Professional Conduct, including the prohibition
against concurrent conflicts of interest stated in Rule 1.7. In
addition, such a lawyer may be subject to statutes and govern-
ment regulations regarding conflict of interest. Such statutes
and regulations may circumscribe the extent to which the gov-
ernment agency may give consent under this Rule. See Rule
1.0 (f) for the definition of informed consent.
Subsections (a) (1), (a) (2) and (d) (1) restate the obligations
of an individual lawyer who has served or is currently serving
as an officer or employee of the government toward a former
government or private client. Rule 1.10 is not applicable to
the conflicts of interest addressed by this Rule. Rather, subsec-
tion (b) sets forth a special imputation rule for former govern-
ment lawyers that provides for screening and notice. Because
of the special problems raised by imputation within a govern-
ment agency, subsection (d) does not impute the conflicts of
a lawyer currently serving as an officer or employee of the
government to other associated government officers or
employees, although ordinarily it will be prudent to screen
such lawyers.
Subsections (a) (2) and (d) (2) apply regardless of whether
a lawyer is adverse to a former client and are thus designed
not only to protect the former client, but also to prevent a lawyer
RULES OF PROFESSIONAL CONDUCT Rule 1.12
from exploiting public office for the advantage of another client.
For example, a lawyer who has pursued a claim on behalf of
the government may not pursue the same claim on behalf of a
later private client after the lawyer has left government service,
except when authorized to do so by the government agency
under subsection (a). Similarly, a lawyer who has pursued a
claim on behalf of a private client may not pursue the claim
on behalf of the government, except when authorized to do
so by subsection (d). As with subsections (a) (1) and (d) (1),
Rule 1.10 is not applicable to the conflicts of interest addressed
by these subsections.
This Rule represents a balancing of interests. On the one
hand, where the successive clients are a government agency
and another client, public or private, the risk exists that power
or discretion vested in that agency might be used for the
special benefit of the other client. A lawyer should not be
in a position where benefit to the other client might affect
performance of the lawyer’s professional functions on behalf
of the government. Also, unfair advantage could accrue to the
other client by reason of access to confidential government
information about the client’s adversary, obtainable only
through the lawyer’s government service. On the other hand,
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. Thus,
a former government lawyer is disqualified only from particular
matters in which the lawyer participated personally and sub-
stantially. The provisions for screening and waiver in subsec-
tion (b) are necessary to prevent the disqualification rule from
imposing too severe a deterrent against entering public ser-
vice. The limitation of disqualification in subsections (a) (2)
and (d) (2) to matters involving a specific party or parties,
rather than extending disqualification to all substantive issues
on which the lawyer worked, serves a similar function.
When a lawyer has been employed by one government
agency and then moves to a second government agency, it
may be appropriate to treat that second agency as another
client for purposes of this Rule, as when a lawyer is employed
by a city and subsequently is employed by a federal agency.
However, because the conflict of interest is governed by sub-
section (d), the latter agency is not required to screen the
lawyer as subsection (b) requires a law firm to do. The question
of whether two government agencies should be regarded as
the same or different clients for conflict of interest purposes
is beyond the scope of these Rules. See Commentary to
Rule 1.13.
Subsections (b) and (c) contemplate a screening arrange-
ment. See Rule 1.0 (l) (requirements for screening proce-
dures). These subsections do not prohibit a lawyer from
receiving a salary or partnership share established by prior
independent agreement, but that lawyer may not receive com-
pensation directly relating the lawyer’s compensation to the
fee in the matter in which the lawyer is disqualified.
Notice, including a description of the screened lawyer’s prior
representation and of the screening procedures employed,
generally should be given as soon as practicable after the
need for screening becomes apparent.
Subsection (c) operates only when the lawyer in question
has knowledge of the information, which means actual knowl-
edge; it does not operate with respect to information that
merely could be imputed to the lawyer.
Subsections (a) and (d) 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 prohib-
ited by law.
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For purposes of subsection (e) of this Rule, a ‘‘matter’’ may
continue in another form. In determining whether two particular
matters are the same, the lawyer should consider the extent
to which the matters involve the same basic facts, the same
or related parties, and the time elapsed.
Rule 1.12. Former Judge, Arbitrator, Media-
tor or Other Third-Party Neutral
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
(a) Except as stated in subsection (d), a lawyer
shall not represent anyone in connection with a
matter in which the lawyer participated personally
and substantially as a judge or other adjudicative
officer or law clerk to such a person or as an
arbitrator, mediator or other third-party neutral,
unless all parties to the proceeding give informed
consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment
with any person who is involved as a party or as
lawyer for a party in a matter in which the lawyer
is participating personally as a judge or other adju-
dicative officer, or as an arbitrator, mediator or
other third-party neutral. A lawyer serving as a
law clerk to a judge or other adjudicative officer
may negotiate for employment with a party or law-
yer involved in a matter in which the clerk is partici-
pating personally, but only after the lawyer has
notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by subsection (a),
no lawyer in a firm with which that lawyer is associ-
ated may knowingly undertake or continue repre-
sentation in the matter unless:
(1) The disqualified lawyer is timely screened
from any participation in the matter and is appor-
tioned no part of the fee therefrom; and
(2) Written notice is promptly given to the parties
and any appropriate tribunal to enable them to
ascertain compliance with the provisions of this
Rule.
(d) An arbitrator selected as a partisan of a
party in a multi-member arbitration panel is not
prohibited from subsequently representing that
party.
(P.B. 1978-1997, Rule 1.12.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 13, 2014, to take
effect Jan. 1, 2015.)
COMMENTARY: 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 repre-
senting 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 Commentary to Rule 1.11. Participation
on the merits or in settlement discussions is considered per-
sonal and substantial. Nominal or ministerial responsibility is
not considered personal and substantial.
RULES OF PROFESSIONAL CONDUCTRule 1.12
Like former judges, lawyers who have served as arbitrators,
mediators or other third-party neutrals may be asked to repre-
sent a client in a matter inwhich the lawyer participated person-
ally. This Rule forbids such representation unless all of the
parties to the proceedings give their informed consent, con-
firmed in writing. See Rule 1.0 (c) and (f). Other law or codes
of ethics governing third-party neutrals may impose more strin-
gent standards of personal or imputed disqualification. See
Rule 2.4.
Although lawyers who serve as third-party neutrals do not
have information concerning the parties that is protected under
Rule 1.6, they typically owe the parties an obligation of confi-
dentiality under law or codes of ethics governing third-party
neutrals. Thus, subsection (c) provides that conflicts of the
personally disqualified lawyer will be imputed to other lawyers
in a law firm unless the conditions of this subsection are met.
Requirements for screening procedures are stated in Rule
1.0 (l). Subsection (c) (1) does not prohibit the screened lawyer
from receiving a salary or partnership share established by
prior independent agreement, but that lawyer may not receive
compensation directly related to the matter in which the lawyer
is disqualified.
Notice, including a description of the screened lawyer’s prior
representation and of the screening procedures employed,
generally should be given as soon as practicable after the
need for screening becomes apparent.
Rule 1.13. Organization as Client
(a) A lawyer employed or retained by an organi-
zation represents the organization acting through
its duly authorized constituents.
(b) If a lawyer for an organization knows that
an officer, employee or other person associated
with the organization is engaged in action, intends
to act or refuses to act in a matter related to the
representation that is a violation of a legal obliga-
tion to the organization, or a violation of law that
reasonably might be imputed to the organization,
and that is likely to result in substantial injury to
the organization, then the lawyer shall proceed
as is reasonably necessary in the best interest of
the organization.
Unless the lawyer reasonably believes that it is
not in the best interest of the organization to do
so, the lawyer shall refer the matter to higher
authority in the organization, including, if war-
ranted by the circumstances, to the highest
authority that can act in behalf of the organization
as determined by applicable law.
(c) Except as provided in subsection (d), if
(1) Despite the lawyer’s efforts in accordance
with subsection (b), the highest authority that can
act on behalf of the organization insists upon or
fails to address in a timely and appropriate manner
an action, or a refusal to act, that is clearly a
violation of law and
(2) The lawyer reasonably believes that the vio-
lation is reasonably certain to result in substantial
injury to the organization, then the lawyer may
reveal information relating to the representation
whether or not Rule 1.6 permits such disclosure,
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but only if and to the extent the lawyer reasonably
believes necessary to prevent substantial injury
to the organization.
(d) Subsection (c) shall not apply with respect
to information relating to a lawyer’s representation
of an organization to investigate an alleged viola-
tion of law, or to defend the organization or an
officer, employee or other constituent associated
with the organization against a claim arising out
of an alleged violation of law.
(e) A lawyer who reasonably believes that he or
she has been discharged because of the lawyer’s
actions taken pursuant to subsections (b) or (c),
or who withdraws under circumstances that
require or permit the lawyer to take action under
either of those subsections, shall proceed as the
lawyer reasonably believes necessary to assure
that the organization’s highest authority is
informed of the lawyer’s discharge or withdrawal.
(f) In dealing with an organization’s directors,
officers, employees, members, shareholders or
other constituents, a lawyer shall explain the iden-
tity of the client when the lawyer knows or reason-
ably should know that the organization’s interests
are adverse to those of the constituents with
whom the lawyer is dealing.
(g) A lawyer representing an organization may
also represent any of its directors, officers,
employees, members, shareholders or other con-
stituents, subject to the provisions of Rule 1.7. If
the organization’s consent to the dual representa-
tion is required by Rule 1.7, 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.
(P.B. 1978-1997, Rule 1.13.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: The Entity as the Client. An organiza-
tional client is a legal entity, but it cannot act except through
its officers, directors, employees, shareholders and other con-
stituents. Officers, directors, employees and shareholders are
the constituents of the corporate organizational client. The
duties defined in this Commentary apply equally to unincorpo-
rated associations. ‘‘Other constituents’’ as used in this Com-
mentary means the positions equivalent to officers, directors,
employees and shareholders held by persons acting for orga-
nizational clients that are not corporations.
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 infor-
mation 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 permit-
ted by Rule 1.6.
RULES OF PROFESSIONAL CONDUCT Rule 1.13
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 concern-
ing policy and operations, including ones entailing serious risk,
are not as such in the lawyer’s province. Subsection (b) makes
clear, however, that when the lawyer knows that the organiza-
tion is likely to be substantially injured by action of an officer
or other constituent that violates a legal obligation to the organi-
zation or is in violation of law that might be imputed to the
organization, the lawyer must proceed as is reasonably neces-
sary in the best interest of the organization. As defined in Rule
1.0 (g), knowledge can be inferred from circumstances, and
a lawyer cannot ignore the obvious.
In determining how to proceed under subsection (b), the
lawyer should give due consideration to the seriousness of
the violation and its consequences, the responsibility in the
organization and the apparent motivation of the persons
involved, the policies of the organization concerning such mat-
ters, and any other relevant considerations. Ordinarily, referral
to a higher authority would be necessary. In some circum-
stances, however, it may be appropriate for the lawyer to ask
the constituent to reconsider the matter; for example, if the
circumstances involve a constituent’s innocent misunder-
standing of law and subsequent acceptance of the lawyer’s
advice, the lawyer may reasonably believe conclude that the
best interest of the organization does not require that the
matter be referred to higher authority. If a constituent persists
in conduct contrary to the lawyer’s advice, it will be necessary
for the lawyer to take steps to have the matter reviewed by a
higher authority in the organization. If the matter is of sufficient
seriousness and importance or urgency to the organization,
referral to higher authority in the organization may be neces-
sary even if the lawyer has not communicated with the constit-
uent. Any measures taken should, to the extent practicable,
minimize the risk of revealing information relating to the repre-
sentation to persons outside the organization. Even in circum-
stances where a lawyer is not obligated by Rule 1.13 to
proceed, a lawyer may bring to the attention of an organiza-
tional client, including its highest authority, matters that the
lawyer reasonably believes to be of sufficient importance to
warrant doing so in the best interest of the organization.
Subsection (b) also makes clear that when it is reasonably
necessary to enable the organization to address the matter
in a timely and appropriate manner, the lawyer must refer
the matter to higher authority, including, if warranted by the
circumstances, the highest authority that can act on behalf
of the organization under applicable law. The organization’s
highest authority to whom a matter may be referred ordinarily
will be the board of directors or similar governing body. How-
ever, applicable law may prescribe that under certain condi-
tions the highest authority reposes elsewhere; for example,
in the independent directors of a corporation.
Relation to Other Rules. The authority and responsibility
provided in this Rule 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
1.8, 1.16, 3.3 and 4.1. Subsection (c) of this Rule supplements
Rule 1.6 (b) by providing an additional basis upon which the
lawyer may reveal information relating to the representation,
but does not modify, restrict, or limit the provisions of Rule
1.6 (b) (1) through (6). Under subsection (c) the lawyer may
reveal such information only when the organization’s highest
authority insists upon or fails to address threatened or ongoing
action that is clearly a violation of law, and then only to the
extent the lawyer reasonably believes necessary to prevent
reasonably certain substantial injury to the organization. It is
not necessary that the lawyer’s services be used in furtherance
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of the violation, but it is required that the matter be related to
the lawyer’s representation of the organization. If the lawyer’s
services are being used by an organization to further a crime
or fraud by the organization, Rules 1.6 (b) (2) and 1.6 (b) (3)
may permit the lawyer to disclose confidential information. In
such circumstances, Rule 1.2 (d) may also be applicable, in
which event, withdrawal from the representation under Rule
1.6 (a) (1) may be required.
Subsection (d) makes clear that the authority of a lawyer
to disclose information relating to a representation in circum-
stances described in subsection (c) does not apply with respect
to information relating to a lawyer’s engagement by an organi-
zation to investigate an alleged violation of law or to defend
the organization or an officer, employee or other person asso-
ciated with the organization against a claim arising out of an
alleged violation of law. This is necessary in order to enable
organizational clients to enjoy the full benefits of legal counsel
in conducting an investigation or defending against a claim.
A lawyer who reasonably believes that he or she has been
discharged because of the lawyer’s actions taken pursuant to
subsection (b) or (c), or who withdraws in circumstances that
require or permit the lawyer to take action under either of these
subsections, must proceed as the lawyer reasonably believes
necessary to assure that the organization’s highest authority
is informed of the lawyer’s discharge or withdrawal.
Government Agency. The duty defined in this Rule applies
to governmental organizations. Defining precisely the identity
of the client and prescribing the resulting obligations of such
lawyers may be more difficult in the government context and
is a matter beyond the scope of these Rules. See Scope.
Although in some circumstances the client may be a specific
agency, it may also be a branch of government, such as the
executive branch, or the government as a whole. For example,
if the action or failure to act involves the head of a bureau,
either the department of which the bureau is a part or the
relevant branch of government may be the client for purposes
of this Rule. Moreover, in a matter involving the conduct of
government officials, a government lawyer may have authority
under applicable law to question such conduct more exten-
sively than that of a lawyer for a private organization in similar
circumstances. Thus, when the client is a governmental orga-
nization, a different balance may be appropriate between
maintaining confidentiality and assuring that the wrongful act
is prevented or rectified, for public business is involved. In
addition, duties of lawyers employed by the government or
lawyers in military service may be defined by statutes and
regulations. This Rule does not limit that authority. See Scope.
Clarifying the Lawyer’s Role. There are times when the
organization’s interest may be or become adverse to those of
one or more of its constituents. In such circumstances the
lawyer should advise any constituent, whose interest the law-
yer finds adverse to that of the organization of the conflict or
potential conflict of interest, that the lawyer cannot represent
such constituent, and that such person may wish to obtain
independent representation. Care must be taken to assure that
the individual understands that, when there is such adversity
of interest, the lawyer for the organization cannot provide legal
representation for that constituent individual, and that discus-
sions between the lawyer for the organization and the individ-
ual may not be privileged.
Whether such a warning should be given by the lawyer for
the organization to any constituent individual may turn on the
facts of each case.
Dual Representation. Subsection (e) recognizes that a
lawyer for an organization may also represent a principal offi-
cer or major shareholder.
RULES OF PROFESSIONAL CONDUCTRule 1.13
Derivative Actions. Under generally prevailing law, the
shareholders or members of a corporation may bring suit to
compel the directors to perform their legal obligations in the
supervision of the organization. Members of unincorporated
associations have essentially the same right. Such an action
may be brought nominally by the organization, but usually is, in
fact, a legal controversy over management of the organization.
The question can arise whether counsel for the organization
may defend such an action. The proposition that the organiza-
tion is the lawyer’s client does not alone resolve the issue. Most
derivative actions are a normal incident of an organization’s
affairs, to be defended by the organization’s lawyer like any
other suit. However, if the claim involves serious charges of
wrongdoing by those in control of the organization, a conflict
may arise between the lawyer’s duty to the organization and
the lawyer’s relationship with the board. In those circum-
stances, Rule 1.7 governs who should represent the directors
and the organization.
Rule 1.14. Client with Impaired Capacity
(Amended June 26, 2006, to take effect Jan. 1, 2007;
amended June 30, 2008, to take effect Jan. 1, 2009.)
(a) When a client’s capacity to make or commu-
nicate adequately considered decisions in con-
nection with a representation is impaired, whether
because of minority, mental impairment or for
some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client-law-
yer relationship with the client.
(b) When the lawyer reasonably believes that
the client is unable to make or communicate ade-
quately considered decisions, is likely to suffer
substantial physical, financial or other harm
unless action is taken and cannot adequately act
in the client’s own interest, the lawyer may take
reasonably necessary protective action, including
consulting with individuals or entities that have
the ability to take action to protect the client and,
in appropriate cases, seeking the appointment of
a legal representative.
(c) Information relating to the representation of
a client with impaired capacity is protected by Rule
1.6. When taking protective action pursuant to
subsection (b), the lawyer is impliedly authorized
under Rule 1.6 (a) to reveal information about the
client, but only to the extent reasonably necessary
to protect the client’s interests.
(P.B. 1978-1997, Rule 1.14.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 30, 2008, to take
effect Jan. 1, 2009.)
COMMENTARY: The normal client-lawyer relationship is
based on the assumption that the client, whenproperly advised
and assisted, is capable of making decisions about important
matters. When the client is a minor or is unable to make
or communicate adequately considered decisions, however,
maintaining the ordinary client-lawyer relationship may not be
possible in all respects. In particular, a severely incapacitated
person may have no power to make legally binding decisions.
Nevertheless, a client with impaired capacity often has the
ability to understand, deliberate upon, and reach conclusions
about matters affecting the client’s own well-being. For exam-
ple, children as young as five or six years of age, and certainly
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those of ten or twelve, are regarded as having opinions that
are entitled to weight in legal proceedings concerning their
custody. So also, it is recognized that some persons of
advanced age can be quite capable of handling routine finan-
cial matters while needing special legal protection concerning
major transactions.
The fact that a client suffers a disability does not diminish
the lawyer’s obligation under these rules. Even if the person
has a legal representative, the lawyer should as far as possible
accord the represented person the status of client, particularly
in maintaining communication.
The client may wish to have family members or other per-
sons participate in discussions with the lawyer. When neces-
sary to assist in the representation, the presence of such
persons generally does not constitute a waiver of the attorney-
client evidentiary privilege. Nevertheless, the lawyer must
keep the client’s interests foremost and, except for protective
action authorized under subsection (b), must look to the client,
and not family members, to make decisions on the client’s
behalf.
If a legal representative has already been appointed for the
client, the lawyer should look to the representative for deci-
sions on behalf of the client only when such decisions are
within the scope of the authority of the legal representative.
In matters involving a minor, whether the lawyer should look
to the parents as natural guardians may depend on the type
of proceeding or matter in which the lawyer is representing
the minor. If the lawyer represents the guardian as distinct from
the ward, and is aware that the guardian is acting adversely
to the ward’s interest, the lawyer may have an obligation to
prevent or rectify the guardian’s misconduct. See Rule 1.2 (d).
Taking Protective Action. If a lawyer reasonably believes
that a client is likely to suffer substantial physical, financial or
other harm unless action is taken, and that a normal client-
lawyer relationship cannot be maintained as provided in sub-
section (a) because the client lacks sufficient capacity to com-
municate or to make adequately considered decisions in
connection with the representation, then subsection (b) per-
mits the lawyer to take protective measures deemed neces-
sary. Such measures could include: consulting with family
members, using a reconsideration period to permit clarification
or improvement of circumstances, using voluntary surrogate
decision-making tools such as durable powers of attorney or
consulting with support groups, professional services, adult-
protective agencies or other individuals or entities that have
the ability to protect the client. In taking any protective action,
the lawyer should be guided by such factors as the wishes
and values of the client to the extent known, the client’s best
interests and the goals of intruding into the client’s decision-
making autonomy to the least extent feasible, maximizing cli-
ent capacities and respecting the client’s family and social con-
nections.
In determining the extent of the client’s impaired capacity,
the lawyer should consider and balance such factors as: the
client’s ability to articulate reasoning leading to a decision,
variability of state of mind and ability to appreciate conse-
quences of a decision; the substantive fairness of a decision;
and the consistency of a decision with the known long-term
commitments and values of the client. In appropriate circum-
stances, the lawyer may seek guidance from an appropriate
diagnostician.
If a legal representative has not been appointed, the lawyer
should consider whether appointment of a legal representative
is necessary to protect the client’s interests. In addition, rules
of procedure in litigation sometimes provide that minors or
persons with impaired capacity must be represented by a
guardian or next friend if they do not have a general guardian.
RULES OF PROFESSIONAL CONDUCT Rule 1.15
In many circumstances, however, appointment of a legal repre-
sentative may be more expensive or traumatic for the client
than circumstances in fact require. Evaluation of such circum-
stances is a matter entrusted to the professional judgment of
the lawyer. In considering alternatives, however, the lawyer
should be aware of any law that requires the lawyer to advocate
the least restrictive action on behalf of the client.
Disclosure of the Client’s Condition. Disclosure of the
client’s impaired capacity could adversely affect the client’s
interests. For example, raising the question of impaired capac-
ity could, in some circumstances, lead to proceedings for invol-
untary conservatorship and/or commitment. Information
relating to the representation is protected by Rule 1.6. There-
fore, unless authorized to do so by these rules or other law,
the lawyer may not disclose such information. When taking
protective action pursuant to subsection (b), the lawyer is
impliedly authorized to make the necessary disclosures, even
when the client directs the lawyer to the contrary. Neverthe-
less, given the risks of disclosure, subsection (c) limits what
the lawyer may disclose in consulting with other individuals
or entities or seeking the appointment of a legal representative.
At the very least, the lawyer should determine whether it is
likely that the person or entity consulted with will act adversely
to the client’s interests before discussing matters related to the
client. The lawyer’s position in such cases is an unavoidably
difficult one.
Emergency Legal Assistance. In an emergency where the
health, safety or a financial interest of a person with impaired
capacity is threatened with imminent and irreparable harm, a
lawyer may take legal action on behalf of such a person even
though the person is unable to establish a client-lawyer rela-
tionship or to make or express considered judgments about
the matter, when the person or another acting in good faith
on that person’s behalf has consulted with the lawyer. Even
in such an emergency, however, the lawyer should not act
unless the lawyer reasonably believes that the person has
no other lawyer, agent or other representative available. The
lawyer should take legal action on behalf of the person only
to the extent reasonably necessary to maintain the status quo
or otherwise avoid imminent and irreparable harm. A lawyer
who undertakes to represent a person in such an exigent
situation has the same duties under these Rules as the lawyer
would with respect to a client.
A lawyer who acts on behalf of a person with impaired
capacity in an emergency should keep the confidences of the
person as if dealing with a client, disclosing them only to the
extent necessary to accomplish the intended protective action.
The lawyer should disclose to any tribunal involved and to
any other counsel involved the nature of his or her relationship
with the person. The lawyer should take steps to regularize
the relationship or implement other protective solutions as
soon as possible. Normally, a lawyer would not seek compen-
sation for such emergency actions taken.
Rule 1.15. Safekeeping Property
(a) As used in this Rule, the terms below shall
have the following meanings:
(1) ‘‘Allowable reasonable fees’’ for IOLTA
accounts are per check charges, per deposit
charges, a fee in lieu of a minimum balance, fed-
eral deposit insurance fees, sweep fees, and a
reasonable IOLTA account administrative or
maintenance fee.
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(2) An ‘‘eligible institution’’ means (i) a bank or
savings and loan association authorized by fed-
eral or state law to do business in Connecticut,
the deposits of which are insured by an agency
of the United States government, or (ii) an open-
end investment company registered with the
United States Securities and Exchange Commis-
sion and authorized by federal or state law to do
business in Connecticut. In addition, an eligible
institution shall meet the requirements set forth
in subsection (i) (3) below. The determination of
whether or not an institution is an eligible institu-
tion shall be made by the organization designated
by the judges of the superior court to administer
the program pursuant to subsection (i) (4) below,
subject to the dispute resolution process provided
in subsection (i) (4) (E) below.
(3) ‘‘Federal Funds Target Rate’’ means the
target level for the federal funds rate set by the
Federal Open Market Committee of the Board of
Governors of the Federal Reserve System from
time to time or, if such rate is no longer available,
any comparable successor rate. If such rate or
successor rate is set as a range, the term ‘‘Federal
Funds Target Rate’’ means the upper limit of
such range.
(4) ‘‘Interest- or dividend-bearing account’’
means (i) an interest-bearing checking account,
or (ii) an investment product which is a daily (over-
night) financial institution repurchase agreement
or an open-end money market fund. A daily finan-
cial institution repurchase agreement must be fully
collateralized by U.S. Government Securities and
may be established only with an eligible institution
that is ‘‘well-capitalized’’ or ‘‘adequately capital-
ized’’ as those terms are defined by applicable
federal statutes and regulations. An open-end
money market fund must be invested solely in
U.S. Government Securities or repurchase
agreements fully collateralized by U.S. Govern-
ment Securities, must hold itself out as a ‘‘money
market fund’’ as that term is defined by federal
statutes and regulations under the Investment
Company Act of 1940 and, at the time of the
investment, must have total assets of at least
$250,000,000.
(5) ‘‘IOLTA account’’ means an interest- or divi-
dend-bearing account established by a lawyer or
law firm for clients’ funds at an eligible institution
from which funds may be withdrawn upon request
by the depositor without delay. An IOLTA account
shall include only client or third person funds,
except as permitted by subsection (i) (6) below.
The determination of whether or not an interest- or
dividend-bearing account meets the requirements
of an IOLTA account shall be made by the organi-
zation designated by the judges of the superior
RULES OF PROFESSIONAL CONDUCTRule 1.15
court to administer the program pursuant to sub-
section (i) (4) below.
(6) ‘‘Non-IOLTA account’’ means an interest-
or dividend-bearing account, other than an IOLTA
account, from which funds may be withdrawn
upon request by the depositor without delay.
(7) ‘‘U.S. Government Securities’’ means direct
obligations of the United States government, or
obligations issued or guaranteed as to principal
and interest by the United States or any agency
or instrumentality thereof, including United States
government-sponsored enterprises, as such term
is defined by applicable federal statutes and regu-
lations.
(b) A lawyer shall hold property of clients or
third persons that is in a lawyer’s possession in
connection with a representation separate from
the lawyer’s own property. Funds shall be kept in
a separate account maintained in the state where
the lawyer’s office is situated or elsewhere with
the consent of the client or third person. Other
property shall be identified as such and appropri-
ately safeguarded. Complete records of such
account funds and other property shall be kept
by the lawyer and shall be preserved for a period
of seven years after termination of the represen-
tation.
(c) A lawyer may deposit the lawyer’s own funds
in a client trust account for the sole purposes of
paying bank service charges on that account or
obtaining a waiver of fees and service charges
on the account, but only in an amount necessary
for those purposes.
(d) Absent a written agreement with the client
otherwise, a lawyer shall deposit into a client trust
account legal fees and expenses that have been
paid in advance, to be withdrawn by the lawyer
only as fees are earned or expenses incurred.
(e) Upon receiving funds or other property in
which a client or third person has an interest,
a lawyer shall promptly notify the client or third
person. Except as stated in this Rule or otherwise
permitted by law or by agreement with the client
or third person, a lawyer shall promptly deliver to
the client or third person any funds or other prop-
erty that the client or third person is entitled to
receive and, upon request by the client or third
person, shall promptly render a full accounting
regarding such property.
(f) When in the course of representation a law-
yer is in possession of property in which two or
more persons (one of whom may be the lawyer)
have interests, the property shall be kept separate
by the lawyer until any competing interests are
resolved. The lawyer shall promptly distribute all
portions of the property as to which the lawyer is
able to identify the parties that have interests and
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as to which there are no competing interests.
Where there are competing interests in the prop-
erty or a portion of the property, the lawyer shall
segregate and safeguard the property subject to
the competing interests.
(g) The word ‘‘interest(s)’’ as used in this sub-
section and subsections (e) and (f) means more
than the mere assertion of a claim by a third party.
In the event a lawyer is notified by a third party
or a third party’s agent of a claim to funds held
by the lawyer on behalf of a client, but it is unclear
to the lawyer whether the third party has a valid
interest within the meaning of this Rule, the lawyer
may make a written request that the third party
or third party’s agent provide the lawyer such rea-
sonable information and/or documentation as
needed to assist the lawyer in determining
whether substantial grounds exist for the third par-
ty’s claim to the funds. If the third party or third
party’s agent fails to comply with such a request
within sixty days, the lawyer may distribute the
funds in question to the client.
(h) Notwithstanding subsections (b), (c), (d), (e)
and (f), lawyers and law firms shall participate in
the statutory program for the use of interest
earned on lawyers’ clients’ funds accounts to pro-
vide funding for the delivery of legal services to
the poor by nonprofit corporations whose principal
purpose is providing legal services to the poor
and for law school scholarships based on financial
need. Lawyers and law firms shall place a client’s
or third person’s funds in an IOLTA account if the
lawyer or law firm determines, in good faith, that
the funds cannot earn income for the client in
excess of the costs incurred to secure such
income. For the purpose of making this good faith
determination of whether a client’s funds cannot
earn income for the client in excess of the costs
incurred to secure such income, the lawyer or law
firm shall consider the following factors: (1) The
amount of the funds to be deposited; (2) the
expected duration of the deposit, including the
likelihood of delay in resolving the relevant trans-
action, proceeding or matter for which the funds
are held; (3) the rates of interest, dividends or
yield at eligible institutions where the funds are
to be deposited; (4) the costs associated with
establishing and administering interest-bearing
accounts or other appropriate investments for the
benefit of the client, including service charges,
minimum balance requirements or fees imposed
by the eligible institutions; (5) the costs of the
services of the lawyer or law firm in connection
with establishing and maintaining the account or
other appropriate investments; (6) the costs of
preparing any tax reports required for income
RULES OF PROFESSIONAL CONDUCT Rule 1.15
earned on the funds in the account or other appro-
priate investments; and (7) any other circum-
stances that affect the capability of the funds to
earn income for the client in excess of the costs
incurred to secure such income. No lawyer shall
be subject to discipline for determining in good
faith to deposit funds in the interest earned on
lawyers’ clients’ funds account in accordance with
this subsection.
(i) An IOLTA account may only be established
at an eligible institution that meets the following
requirements:
(1) No earnings from the IOLTA account shall
be made available to a lawyer or law firm.
(2) Lawyers or law firms depositing a client’s or
third person’s funds in an IOLTA account shall
direct the depository institution:
(A) To remit interest or dividends, net of allow-
able reasonable fees, if any, on the average
monthly balance in the account, or as otherwise
computed in accordance with the institution’s
standard accounting practices, at least quarterly,
to the organization designated by the judges of
the superior court to administer this statutory
program;
(B) To transmit to the organization administer-
ing the program with each remittance a report that
identifies the name of the lawyer or law firm for
whom the remittance is sent, the amount of remit-
tance attributable to each IOLTA account, the rate
and type of interest or dividends applied, the
amount of interest or dividends earned, the
amount and type of fees and service charges
deducted, if any, and the average account bal-
ance for the period for which the report is made
and such other information as is reasonably
required by such organization; and
(C) To transmit to the depositing lawyer or law
firm at the same time a report in accordance with
the institution’s normal procedures for reporting
to its depositors.
(3) Participation by banks, savings and loan
associations, and investment companies in the
IOLTA program is voluntary. An eligible institution
that elects to offer and maintain IOLTA accounts
shall meet the following requirements:
(A) The eligible institution shall pay no less on
its IOLTA accounts than the highest interest rate
or dividend generally available from the institution
to its non-IOLTA customers when the IOLTA
account meets or exceeds the same minimum
balance or other eligibility qualifications on its non-
IOLTA accounts, if any. In determining the highest
interest rate or dividend generally available from
the institution to its non-IOLTA customers, an eli-
gible institution may consider, in addition to the
balance in the IOLTA account, factors customarily
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considered by the institution when setting interest
rates or dividends for its non-IOLTA customers,
provided that such factors do not discriminate
between IOLTA accounts and non-IOLTA
accounts and that these factors do not includethe
fact that the account is an IOLTA account. In lieu
of the rate set forth in the first sentence of this
subparagraph, an eligible institution may pay a
rate equal to the higher of either (i) one percent
per annum, or (ii) sixty percent of the Federal
Funds Target Rate. Such alternate rate shall be
determined for each calendar quarter as of the
first business day of such quarter and shall be
deemed net of allowable reasonable fees and ser-
vice charges. The eligible institution may offer,
and the lawyer or law firm may request, a sweep
account that provides a mechanism for the over-
night investment of balances in the IOLTA account
in an interest- or dividend-bearing account that is
a daily financial institution repurchase agreement
or a money market fund. Nothing in this Rule shall
preclude an eligible institution from paying a
higher interest rate or dividend than described
above or electing to waive any fees and service
charges on an IOLTA account. An eligible institu-
tion may choose to pay the higher interest or divi-
dend rate on an IOLTA account in lieu of
establishing it as a higher rate product.
(B) Interest and dividends shall be calculated in
accordance with the eligible institution’s standard
practices for non-IOLTA customers.
(C) Allowable reasonable fees are the only fees
and service charges that may be deducted by
an eligible institution from interest earned on an
IOLTA account. Allowable reasonable fees may
be deducted from interest or dividends on an
IOLTA account only at the rates and in accord-
ance with the customary practices of the eligible
institution for non-IOLTA customers. No fees or
service charges other than allowable reasonable
fees may be assessed against the accrued inter-
est or dividends on an IOLTA account. Any fees
and service charges other than allowable reason-
able fees shall be the sole responsibility of, and
may only be charged to, the lawyer or law firm
maintaining the IOLTA account. Fees and service
charges in excess of the interest or dividends
earned on one IOLTA account for any period shall
not be taken from interest or dividends earned on
any other IOLTA account or accounts or from the
principal of any IOLTA account.
(4) The judges of the superior court, upon rec-
ommendation of the chief court administrator,
shall designate an organization qualified under
Sec. 501 (c) (3) of the Internal Revenue Code, or
any subsequent corresponding Internal Revenue
Code of the United States, as from time to time
RULES OF PROFESSIONAL CONDUCTRule 1.15
amended, to administer the program. The chief
court administrator shall cause to be printed in
the Connecticut Law Journal an appropriate
announcement identifying the designated organi-
zation. The organization administering the pro-
gram shall comply with the following:
(A) Each June mail to each judge of the superior
court and to each lawyer or law firm participating
in the program a detailed annual report of all funds
disbursed under the program including the
amount disbursed to each recipient of funds;
(B) Each June submit the following in detail
to the chief court administrator for approval and
comment by the Executive Committee of the
superior court: (i) its proposed goals and objec-
tives for the program; (ii) the procedures it has
established to avoid discrimination in the award-
ing of grants; (iii) information regarding the insur-
ance and fidelity bond it has procured; (iv) a
description of the recommendations and advice
it has received from the Advisory Panel estab-
lished by General Statutes § 51-81c and the
action it has taken to implement such recommen-
dations and advice; (v) the method it utilizes to
allocate between the two uses of funds provided
for in § 51-81c and the frequency with which it
disburses funds for such purposes; (vi) the proce-
dures it has established to monitor grantees to
ensure that any limitations or restrictions on the
use of the granted funds have been observed
by the grantees, such procedures to include the
receipt of annual audits of each grantee showing
compliance with grant awards and setting forth
quantifiable levels of services that each grantee
has provided with grant funds; (vii) the procedures
it has established to ensure that no funds that
have been awarded to grantees are used for lob-
bying purposes; and (viii) the procedures it has
established to segregate funds to be disbursed
under the program from other funds of the organi-
zation;
(C) Allow the judicial branch access to its books
and records upon reasonable notice;
(D) Submit to audits by the judicial branch; and
(E) Provide for a dispute resolution process for
resolving disputes as to whether a bank, savings
and loan association, or open-end investment
company is an eligible institution within the mean-
ing of this Rule.
(5) Before an organization may be designated
to administer this program, it shall file with the
chief court administrator, and the judges of the
superior court shall have approved, a resolution
of the board of directors of such an organization
which includes provisions:
(A) Establishing that all funds the organization
might receive pursuant to subsection (i) (2) (A)
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above will be exclusively devoted to providing
funding for the delivery of legal services to the
poor by nonprofit corporations whose principal
purpose is providing legal services to the poor
and for law school scholarships based on financial
need and to the collection, management and dis-
tribution of such funds;
(B) Establishing that all interest and dividends
earned on such funds, less allowable reasonable
fees, if any, shall be used exclusively for such
purposes;
(C) Establishing and describing the methods
the organization will utilize to implement and
administer the program and to allocate funds to
be disbursed under the program, the frequency
with which the funds will be disbursed by the orga-
nization for such purposes, and the segregation
of such funds from other funds of the organization;
(D) Establishing that the organization shall con-
sult with and receive recommendations from the
Advisory Panel established by General Statutes
§ 51-81c regarding the implementation and
administration of the program, including the
method of allocation and the allocation of funds
to be disbursed under such program;
(E) Establishing that the organization shall com-
ply with the requirements of this Rule; and
(F) Establishing that said resolution will not be
amended, and the facts and undertakings set forth
in it will not be altered, until the same shall have
been approved by the judges of the superior court
and ninety days have elapsed after publication by
the chief court administrator of the notice of such
approval in the Connecticut Law Journal.
(6) Nothing in this subsection (i) shall prevent
a lawyer or law firm from depositing a client’s or
third person’s funds, regardless of the amount of
such funds or the period for which such funds are
expected to be held, in a separate non-IOLTA
account established on behalf of and for the bene-
fit of the client or third person. Such an account
shall be established as:
(A) A separate clients’ funds account for the
particular client or third person on which the inter-
est or dividends will be paid to the client or third
person; or
(B) A pooled clients’ funds account with subac-
counting by the bank, savings and loan associa-
tion or investment company or by the lawyer or
law firm, which provides for the computation of
interest or dividends earned by each client’s or
third person’s funds and the payment thereof to
the client or third person.
(j) A lawyer who practices in this jurisdiction
shall maintain current financial records as pro-
vided in this Rule and shall retain the following
RULES OF PROFESSIONAL CONDUCT Rule 1.15
records for a period of seven years after termina-
tion of the representation:
(1) receipt and disbursement journals con-
taining a record of deposits to and withdrawals
from client trust accounts, specifically identifying
the date, source, and description of each item
deposited, as well as the date, payee and purpose
of each disbursement;
(2) ledger records for all client trust accounts
showing, for each separate trust client or benefi-
ciary, the source of all funds deposited, the names
of all persons for whom the funds are or were
held, the amount of such funds, the descriptions
and amounts of charges or withdrawals, and the
names of all persons or entities to whom such
funds were disbursed;
(3) copies of retainer and compensation
agreements with clients as required by Rule 1.5
of the Rules of Professional Conduct;
(4) copies of accountings to clients or third per-
sons showing the disbursement of funds to them
or on their behalf;
(5) copies of bills for legal fees and expenses
rendered to clients;
(6) copies of records showing disbursements
on behalf of clients;
(7) the physical or electronic equivalents of all
checkbook registers, bank statements, records of
deposit, prenumbered canceled checks, and sub-
stitute checks provided by a financial institution;
(8) records of all electronic transfers from client
trust accounts, including the name of the person
authorizing transfer, the date of transfer, the name
of the recipient and confirmation from the financial
institution of the trust account number from which
money was withdrawn and the date and the time
the transfer was completed;
(9) copies of monthly trial balances and at least
quarterly reconciliations of the client trust
accounts maintained by the lawyer; and
(10) copies of those portions of client files that
are reasonably related to client trust account
transactions.
(k) With respect to client trust accounts required
by this Rule:
(1) only a lawyer admitted to practice law in this
jurisdiction or a person under the direct supervi-
sion of the lawyer shall be an authorized signatory
or authorize transfers from a client trust account;
(2) receipts shall be deposited intact and
records of deposit should be sufficiently detailed
to identify each item; and
(3) withdrawals shall be made only by check
payable to a named payee or by authorized elec-
tronic transfer and not to cash.
(l) The records required by this Rule may be
maintained by electronic, photographic, or other
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media provided that they otherwise comply with
these Rules and that printed copies can be pro-
duced. These records shall be readily accessible
to the lawyer.
(m) Upon dissolution of a law firm or of any
legal professional corporation, the partners shall
make reasonable arrangements for the mainte-
nance of client trust account records specified in
this Rule.
(n) Upon the sale of a law practice, the seller
shall make reasonable arrangements for the
maintenance of records specified in this Rule.
(P.B. 1978-1997, Rule 1.15.) (Amended June 26, 2006, to
take effect Sept. 1, 2006; amended June 29, 2007, to take
effect Sept. 1, 2007; amended June 30, 2008, to take effect
Aug. 1, 2008; amended June 21, 2010, to take effect Aug. 1,
2010; amended June 20, 2011, to take effect Jan. 1, 2012;
amended June 12, 2015, to take effect Jan. 1, 2016.)
COMMENTARY: A lawyer should hold property of others
with the care required of a professional fiduciary. Securities
should be kept in a safe deposit box, except when some other
form of safekeeping is warranted by special circumstances.
All property that is the property of clients or third persons,
including prospective clients, must be kept separate from the
lawyer’s business and personal property and, if moneys, in
one or more trust accounts. Separate trust accounts may be
warranted when administering estate moneys or acting in simi-
lar fiduciary capacities. A lawyer should maintain on a current
basis books and records in accordance with generally
accepted accounting practices.
While normally it is impermissible to commingle the lawyer’s
own funds with client funds, subsection (c) provides that it is
permissible when necessary to pay bank service charges on
that account. Accurate records must be kept regarding which
part of the funds is the lawyer’s.
Lawyers often receive funds from which the lawyer’s fee
will be paid. The lawyer is not required to remit to the clients’
funds account funds that the lawyer reasonably believes repre-
sent fees owed. However, a lawyer may not hold funds to
coerce a client into accepting the lawyer’s contention. The
disputed portion of the funds must be kept in a trust account
and the lawyer should suggest means for prompt resolution
of the dispute, such as arbitration. The undisputed portion of
the funds shall be promptly distributed.
Subsection (f) also recognizes that third parties, such as a
client’s creditor who has a lien onfunds recovered in a personal
injury action, may have lawful interests in specific funds or
other property in a lawyer’s custody. A lawyer may have a
duty under applicable law to protect such third-party interests
against wrongful interference by the client. In such cases the
lawyer must refuse to surrender the property to the client until
the competing interests are resolved. A lawyer should not
unilaterally assume to arbitrate a dispute between the client
and the third party, but, when there are substantial grounds
for dispute as to the person entitled to the funds, the lawyer
may file an action to have a court resolve the dispute.
The word ‘‘interest(s)’’ as used in subsections (e), (f) and
(g) includes, but is not limited to, the following: a valid judgment
concerning disposition of the property; a valid statutory or
judgment lien, or other lien recognized by law, against the
property; a letter of protection or similar obligation that is both
(a) directly related to the property held by the lawyer, and
(b) an obligation specifically entered into to aid the lawyer in
obtaining the property; or a written assignment, signed by the
RULES OF PROFESSIONAL CONDUCTRule 1.15
client, conveying an interest in the funds or other property to
another person or entity.
The obligations of a lawyer under this Rule are independent
of those arising from activity other than rendering legal ser-
vices. For example, a lawyer who serves only as an escrow
agent is governed by the applicable law relating to fiduciaries
even though the lawyer does not render legal services in the
transaction and is not governed by this Rule. A ‘‘lawyers’ fund’’
for client protection provides a means through the collective
efforts of the bar to reimburse persons who have lost money
or property as a result of dishonest conduct of a lawyer. Where
such a fund has been established, a lawyer must participate
where it is mandatory, and, even when it is voluntary, the
lawyer should participate.
Subsection (i) requires lawyers and law firms to participate
in the statutory IOLTA program. The lawyer or law firm should
review its IOLTA account at reasonable intervals to determine
whether changed circumstances require further action with
respect to the funds of any client or third person.
Subsection (j) lists the basic financial records that a lawyer
must maintain with regard to all trust accounts of a law firm.
These include the standard books of account, and the support-
ing records that are necessary to safeguard and account for
the receipt and disbursement of client or third person funds
as required by Rule 1.15 of the Rules of Professional Conduct.
Subsection (j) requires that lawyers maintain client trust
account records, including the physical or electronic equiva-
lents of all checkbook registers, bank statements, records of
deposit, prenumbered canceled checks, and substitute checks
for a period of at least seven years after termination of each
particular legal engagement or representation. The ‘‘Check
Clearing for the 21st Century Act’’ or ‘‘Check 21 Act,’’ codified
at 12 U.S.C. § 5001 et seq., recognizes ‘‘substitute checks’’
as the legal equivalent of an original check. A ‘‘substitute
check’’ is defined at 12 U.S.C. § 5002 (16) as paper reproduc-
tion of the original check that contains an image of the front
and back of the original check; bears a magnetic ink character
recognition (‘‘MICR’’) line containing all the information
appearing on the MICR line of the original check; conforms
with generally applicable industry standards for substitute
checks; and is suitable for automated processing in the same
manner as the original check. Banks, as defined in 12 U.S.C.
§ 5002 (2), are not required to return to customers the original
canceled checks. Most banks now provide electronic images
of checks to customers who have access to their accounts on
internet based websites. It is the lawyer’s responsibility to
download electronic images. Electronic images shall be main-
tained for the requisite number of years and shall be readily
available for printing upon request or shall be printed and
maintained for the requisite number years.
The ACH (Automated Clearing House) Network is an elec-
tronic funds transfer or payment system that primarily provides
for the interbank clearing of electronic paymentsbetween origi-
nating and receiving participating financial institutions. ACH
transactions are payment instructions to either debit or credit
a deposit account. ACH payments are used in a variety of
payment environments including bill payments, business-to-
business payments, and government payments (e.g. tax
refunds). In addition to the primary use of ACH transactions,
retailers and third parties use the ACH system for other types
of transactions including electronic check conversion (ECC).
ECC is the process of transmitting MICR information from
the bottom of a check, converting check payments to ACH
transactions depending upon the authorization given by the
account holder at the point-of-purchase. In this type of transac-
tion, the lawyer should be careful to comply with the require-
ments of subsection (j) (8).
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There are five types of check conversions where a lawyer
should be careful to comply with the requirements of subsec-
tion (j) (8). First, in a ‘‘point-of-purchase conversion,’’ a paper
check is converted into a debit at the point of purchase, and
the paper check is returned to the issuer. Second, in a ‘‘back-
office conversion,’’ a paper check is presented at the point-
of-purchase and is later converted into a debit, and the paper
check is destroyed. Third, in a ‘‘account-receivable conver-
sion,’’ a paper check is converted into a debit, and the paper
check is destroyed. Fourth, in a ‘‘telephone-initiated debit’’
or ‘‘check-by-phone’’ conversion, bank account information is
provided via the telephone, and the information is converted
to a debit. Fifth, in a ‘‘web-initiated debit,’’ an electronic pay-
ment is initiated through a secure web environment. Subsec-
tion (j) (8) applies to each of the types of electronic funds
transfers described. All electronic funds transfers shall be
recorded, and a lawyer should not reusea check number which
has been previously used in an electronic transfer transaction.
The potential of these records to serve as safeguards is
realized only if the procedures set forth in subsection (j) (9) are
regularly performed. The trial balance is the sum of balances
of each client’s ledger card (or the electronic equivalent). Its
value lies in comparing it on a monthly basis to a control
balance. The control balance starts with the previous month’s
balance, then adds receipts from the Trust Receipts Journal
and subtracts disbursements from the Trust Disbursements
Journal. Once the total matches the trial balance, the reconcili-
ation readily follows by adding amounts of any outstanding
checks and subtracting any deposits not credited by the bank
at month’s end. This balance should agree with the bank
statement. Quarterly reconciliation is recommended only as
a minimum requirement; monthly reconciliation is the preferred
practice given the difficulty of identifying an error (whether by
the lawyer or the bank) among three months’ transactions.
In some situations, documentation in addition to that listed
in subdivisions (1) through (9) of subsection (i) is necessary
for a complete understanding of a trust account transaction.
The type of document that a lawyer must retain under subdivi-
sion (10) of subsection (i) because it is ‘‘reasonably related’’
to a client trust transaction will vary depending on the nature
of the transaction and the significance of the document in
shedding light on the transaction. Examples of documents
that typically must be retained under this subdivision include
correspondence between the client and lawyer relating to a
disagreement over fees or costs or the distributionof proceeds,
settlement agreements contemplating payment of funds, set-
tlement statements issued to the client, documentation relating
to sharing litigation costs and attorney fees for subrogated
claims, agreements for division of fees between lawyers, guar-
antees of payment to third parties out of proceeds recovered
on behalf of a client, and copies of bills, receipts or correspon-
dence related to any payments to third parties on behalf of a
client (whether made from the client’s funds or from the law-
yer’s funds advanced for the benefit of the client).
Subsection (k) lists minimal accounting controls for client
trust accounts. It also enunciates the requirement that only a
lawyer admitted to the practice of law in this jurisdiction or a
person who is under the direct supervision of the lawyer shall
be the authorized signatory or authorized to make electronic
transfers from a client trust account. While it is permissible to
grant limited nonlawyer access to a client trust account, such
access should be limited and closely monitored by the lawyer.
The lawyer has a nondelegable duty to protect and preserve
the funds in a client trust account and can be disciplined for
failure to supervise subordinates who misappropriate client
funds. See Rules 5.1 and 5.3 of the Rules of Professional
Conduct.
RULES OF PROFESSIONAL CONDUCT Rule 1.16
Authorized electronic transfers shall be limited to (1) money
required for payment to a client or third person on behalf of
a client; (2) expenses properly incurred on behalf of a client,
such as filing fees or payment to third persons for services
rendered in connection with the representation; or (3) money
transferred to the lawyer for fees that are earned in connection
with the representation and are not in dispute; or (4) money
transferred from one client trust account to another client
trust account.
The requirements in subdivision (2) of subsection (k) that
receipts shall be deposited intact mean that a lawyer cannot
deposit one check or negotiable instrument into two or more
accounts at the same time, a practice commonly known as a
split deposit.
Subsection (l) allows the use of alternative media for the
maintenance of client trust account records if printed copies
of necessary reports can be produced. If trust records are
computerized, a system of regular and frequent (preferably
daily) backup procedures is essential. If a lawyer uses third-
party electronic or internet based file storage, the lawyer must
make reasonable efforts to ensure that the company has in
place, or will establish reasonable procedures to protect the
confidentiality of client information. See ABA Formal Ethics
Opinion 398 (1995). Records required by subsection (j) shall
be readily accessible and shall be readily available to be pro-
duced upon request by the client or third person who has an
interest as provided in Rule 1.15 of the Rules of Professional
Conduct, or by the official request of a disciplinary authority,
including but not limited to, a subpoena duces tecum. Personal
identifying information in records produced upon request by
the client or third person or by disciplinary authority shall
remain confidential and shall be disclosed only in a manner
to ensure client confidentiality as otherwise required by law
or court rule.
Subsections (m) and (n) provide for the preservation of a
lawyer’s client trust account records in the event of dissolution
or sale of a law practice. Regardless of the arrangements the
partners or shareholders make among themselves for mainte-
nance of the client trust records, each partner may be held
responsible for ensuring the availability of these records. For
the purposes of these Rules, the terms ‘‘law firm,’’ ‘‘partner,’’
and ‘‘reasonable’’ are defined in accordance with Rules 1.0
(d), (h), and (i) of the Rules of Professional Conduct.
Rule 1.16. Declining or Terminating Repre-
sentation
(a) Except as stated in subsection (c), a lawyer
shall not represent a client or, where representa-
tion has commenced, shall withdraw from the rep-
resentation of a client if:
(1) The representation will result in violation of
the Rules of Professional Conduct or other law;
(2) The lawyer’s physical or mental condition
materially impairs the lawyer’s ability to represent
the client; or
(3) The lawyer is discharged.
(b) Except as stated in subsection (c), a lawyer
may withdraw from representing a client if:
(1) withdrawal can be accomplished without
material adverse effect on the interests of the
client;
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(2) the client persists in a course of action
involving the lawyer’s services that the lawyer rea-
sonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to
perpetrate a crime or fraud;
(4) the client insists upon taking action that the
lawyer considers repugnant or with which the law-
yer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obliga-
tion to the lawyer regarding the lawyer’s services
and has been given reasonable warning that the
lawyer will withdraw unless the obligation is ful-
filled;
(6) the representation will result in an unreason-
able financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law
requiring notice to or permission of a tribunal when
terminating a representation. When ordered to do
so by a tribunal, a lawyer shall continue represen-
tation notwithstanding good cause for terminating
the representation.
(d) Upon termination of representation, a lawyer
shall take steps to the extent reasonably practica-
ble to protect a client’s interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering
papers and property to which the client is entitled
and refunding any advance payment of the fee
that has not been earned. The lawyer may retain
papers relating to the client to the extent permitted
by other law. If the representation of the client is
terminated either by the lawyer withdrawing from
representation or by the client discharging the law-
yer, the lawyer shall confirm the termination in
writing to the client before or within a reasonable
time after the termination of the representation.
(P.B. 1978-1997, Rule 1.16.) (Amended June 25, 2001, to
take effect Jan. 1, 2002; amended June 26, 2006, to take
effect Jan. 1, 2007.)
COMMENTARY: A lawyer should not accept representation
in a matter unless it can be performed competently, promptly,
without improper conflict of interest and to completion. Ordi-
narily, a representation in a matter is completed when the
agreed upon assistance has been concluded. See Rules 1.2
(c) and 6.5; see also Rule 1.3, Commentary.
Mandatory Withdrawal. A lawyer ordinarily must decline
or withdraw from representation if the client demands that the
lawyer engage in conduct that is illegal or violates the Rules
of Professional Conduct or other law. The lawyer is not obliged
to decline or withdraw simply because the client suggests such
a course of conduct; a client may make such a suggestion in
the hope that a lawyer will not be constrained by a profes-
sional obligation.
When a lawyer has been appointed to represent a client,
withdrawal ordinarily requires approval of the appointing
authority. See also Rule 6.2. Similarly, court approval or notice
to the court is often required by applicable law before a lawyer
RULES OF PROFESSIONAL CONDUCTRule 1.16
withdraws from pending litigation. Difficulty may be encoun-
tered if withdrawal is based on the client’s demand that the
lawyer engage in unprofessional conduct. The court may
request an explanation for the withdrawal, while the lawyer
may be bound to keep confidential the facts that would consti-
tute such an explanation. Lawyers should be mindful of their
obligations to both clients and the court under Rules 1.6
and 3.3.
Withdrawal of Limited Appearance. When the lawyer has
filed a limited appearance under Practice Book Section 3-8
(b) and the lawyer has completed the representation described
in the limited appearance, the lawyer is not required to obtain
permission of the tribunal to terminate the representation
before filing the certificate of completion.
Discharge. A client has a right to discharge a lawyer at
any time, with or without cause, subject to liability for payment
for the lawyer’s services. Where future dispute about the with-
drawal may be anticipated, it may be advisable to prepare a
written statement reciting the circumstances.
Whether a client can discharge appointed counsel may
depend on applicable law. A client seeking to do so should
be given a full explanation of the consequences. These conse-
quences may include a decision by the appointing authority
that appointment of successor counsel is unjustified, thus
requiring the client to represent himself or herself.
If the client has diminished capacity, the client may lack
the legal capacity to discharge the lawyer and, in any event,
the discharge may be seriously adverse to the client’s inter-
ests. The lawyer should make special effort to help the client
consider the consequences and may take reasonably neces-
sary protective action as provided in Rule 1.14.
Assisting the Client upon Withdrawal. Even if the lawyer
has been unfairly discharged by the client, a lawyer must take
all reasonable steps to mitigate the consequences to the client.
The lawyer may retain papers as security for a fee only to the
extent permitted by law. See Rule 1.5.
Confirmation in Writing. A written statement to the client
confirming the termination of the relationship and the basis of
the termination reduces the possibility of misunderstanding
the status of the relationship. The written statement should
be sent to the client before or within a reasonable time after
the termination of the relationship.
Rule 1.17. Sale of Law Practice
A lawyer or a law firm may sell or purchase a
law practice, or an area of practice, including good
will, if the following conditions are satisfied:
(a) The seller ceases to engage in the private
practice of law, or in the area of practice that has
been sold, in Connecticut;
(b) The entire practice, or the entire area of
practice, is sold to one or more lawyers or law
firms;
(c) The seller gives written notice to each of the
seller’s clients regarding:
(1) the proposed sale;
(2) the client’s right to retain other counsel or
to take possession of the file; and
(3) the fact that the client’s consent to the trans-
fer of the client’s files will be presumed if the client
does not take any action or does not otherwise
object within ninety days of receipt of the notice.
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If a client cannot be given notice, the representa-
tion of that client may be transferred to the pur-
chaser only upon entry of an order so authorizing
by a court having jurisdiction. The seller may dis-
close to the court in camera information relating
to the representation only to the extent necessary
to obtain an order authorizing the transfer of a file.
(d) The fees charged clients shall not be
increased by reason of the sale.
(Adopted June 26, 2006, to take effect Jan. 1, 2007.)
COMMENTARY: The practice of law is a profession, not
merely a business. Clients are not commodities that can be
purchased and sold at will. Pursuant to this Rule, when a
lawyer or an entire firm ceases to practice, or ceases to prac-
tice in an area of law, and other lawyers or firms take over
the representation, the selling lawyer or firm may obtain com-
pensation for the reasonable value of the practice as may
withdrawing partners of law firms. See Rules 5.4 and 5.6.
Termination of Practice by the Seller. The requirement
that all of the private practice, or all of an area of practice, be
sold is satisfied if the seller in good faith makes the entire
practice, or the area of practice, available for sale to the pur-
chasers. The fact that a number of the seller’s clients decide
not to be represented by the purchasers but take their matters
elsewhere, therefore, does not result in a violation.
The requirement that the seller cease to engage in the
private practice of law does not prohibit employment as a
lawyer on the staff of a public agency or a legal services entity
that provides legal services to the poor, or as in-house counsel
to a business.
The Rule permits a sale of an entire practice attendant
upon retirement from the private practice of law within the
jurisdiction. Its provisions, therefore, accommodate the lawyer
who sells the practice upon the occasion of moving to another
state. Some states are so large that a move from one locale
therein to another is tantamount to leaving the jurisdiction in
which the lawyer has engaged in the practice of law. To also
accommodate lawyers so situated, states may permit the sale
of the practice when the lawyer leaves the geographic area
rather than the jurisdiction. The alternative desired should be
indicated by selecting one of the two provided for in Rule
1.17 (a).
This Rule also permits a lawyer or law firm to sell an area
of practice. If an area of practice is sold and the lawyer remains
in the active practice of law, the lawyer must cease accepting
any matters in the area of practice that has been sold, either
as counsel or co-counsel or by assuming joint responsibility
for a matter in connection with the division of a fee with another
lawyer as would otherwise be permitted by Rule 1.5 (e). For
example, a lawyer with a substantial number of estate planning
matters and a substantial number of probate administration
cases may sell the estate planning portion of the practice but
remain in the practice of law by concentrating on probate
administration; however, that practitioner may not thereafter
accept any estate planning matters. Although a lawyer who
leaves a jurisdiction or geographical area typically would sell
the entire practice, this Rule permits the lawyer to limit the
sale to one or more areas of the practice, thereby preserving
the lawyer’s right to continue practice in the areas of the prac-
tice that were not sold.
Sale of Entire Practice or Entire Area of Practice. The
Rule requires that the seller’s entire practice, or an entire area
of practice, be sold. The prohibition against sale of less than
an entire practice area protects those clients whose matters
are less lucrative and who might find it difficult to secure other
RULES OF PROFESSIONAL CONDUCT Rule 1.18
counsel if a sale could be limited to substantial fee-generating
matters. The purchasers are required to undertake all client
matters in the practice or practice area, subject to client con-
sent. This requirement is satisfied, however, even if a pur-
chaser is unable to undertake a particular client matter
because of a conflict of interest.
Client Confidences, Consent and Notice. Negotiations
between a seller and a prospective purchaser prior to disclo-
sure of information relating to a specific representation of an
identifiable client no more violate the confidentiality provisions
of Rule 1.6 than do preliminary discussions concerning the
possible association of another lawyer or mergers between
firms, with respect to which client consent is not required. See
Rule 1.6 (c) (5). Providing the purchaser access to detailed
information relating to the representation, such as the client’s
file, however, requires client consent. The Rule provides that
before such information can be disclosed by the seller to the
purchaser the client must be given actual written notice of the
contemplated sale, including the identity of the purchaser,
and must be told that the decision to consent or make other
arrangements must be made within ninety days. If nothing is
heard from the client within that time, consent to the sale
is presumed.
A lawyer or law firm ceasing to practice cannot be required
to remain in practice because some clients cannot be given
actual notice of the proposed purchase. Since these clients
cannot themselves consent to the purchase or direct any other
disposition of their files, the Rule requires an order from a
court having jurisdiction authorizing their transfer or other dis-
position. The court can be expected to determine whether
reasonable efforts to locate the client have been exhausted,
and whether the absent client’s legitimate interests will be
served by authorizing the transfer of the file so that the pur-
chaser may continue the representation. Preservation of client
confidences requires that the petition for a court order be
considered in camera. This procedure is contemplated as an
in camera review of privileged materials.
All the elements of client autonomy, including the client’s
absolute right to discharge a lawyer and transfer the represen-
tation to another, survive the sale of the practice or area of
practice.
Fee Arrangements between Client and Purchaser. The
sale may not be financed by increases in fees charged exclu-
sively to the clients of the purchased practice. Existing
agreements between the seller and the client as to fees and
the scope of the work must be honored by the purchaser.
Other Applicable Ethical Standards. Lawyers participat-
ing in the sale of a law practice or a practice area are subject
to the ethical standards applicable to involving another lawyer
in the representation of a client. These include, for example,
the seller’s obligation to exercise competence in identifying a
purchaser qualified to assume the practice and the purchaser’s
obligation to undertake the representation competently (see
Rule 1.1); the obligation to avoid disqualifying conflicts, and
to secure the client’s informed consent for those conflicts that
can be agreed to (see Rule 1.7 regarding conflicts and Rule
1.0 for the definition of informed consent); and the obligation
to protect information relating to the representation (see Rules
1.6 and 1.9).
If approval of the substitution of the purchasing lawyer for
the selling lawyer is required by the rules of any tribunal in
which a matter is pending, such approval must be obtained
before the matter can be included in the sale (see Rule 1.16).
Applicability of the Rule. This Rule applies to the sale of
a law practice by representatives of a deceased, disabled or
disappeared lawyer. Thus, the seller may be represented by
a nonlawyer representative not subject to these Rules. Since,
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however, no lawyer may participate in a sale of a law practice
which does not conform to the requirements of this Rule, the
representatives of the seller as well as the purchasing lawyer
can be expected to see to it that they are met.
Admission to or retirement from a law partnership or profes-
sional association, retirement plans and similar arrangements,
and a sale of tangible assets of a law practice, do not constitute
a sale or purchase governed by this Rule.
This Rule does not apply to the transfers of legal representa-
tion between lawyers when such transfers are unrelated to
the sale of a practice or an area of practice.
Rule 1.18. Duties to Prospective Client
(a) A person who consults with a lawyer con-
cerning the possibility of forming a client-lawyer
relationship with respect to a matter is a prospec-
tive client.
(b) Even when no client-lawyer relationship
ensues, a lawyer who has learned information
from a prospective client shall not use or reveal
that information, except as Rule 1.9 would permit
with respect to information of a former client.
(c) A lawyer subject to subsection (b) shall not
represent a client with interests materially adverse
to those of a prospective client in the same or a
substantially related matter if the lawyer received
information from the prospective client that could
be significantly harmful to that person in the mat-
ter, except as provided in subsection (d). If a law-
yer is disqualified from representation under this
paragraph, no lawyer in a firm with which that
lawyer is associated may knowingly undertake or
continue representation in such a matter, except
as provided in subsection (d).
(d) When the lawyer has received disqualifying
information as defined in subsection (c), represen-
tation is permissible if:
(1) both the affected client and the prospective
client have given informed consent, confirmed in
writing, or
(2) the lawyer who received the information took
reasonable measures to avoid exposure to more
disqualifying information than was reasonably
necessary to determine whether to represent the
prospective client; and
(i) the disqualified lawyer is timely screened
from any participation in the matter; and
(ii) written notice is promptly given to the pro-
spective client.
(Adopted June 26, 2006, to take effect Jan. 1, 2007;
amended June 13, 2014, to take effect Jan. 1, 2015.)
COMMENTARY: Prospective clients, like clients, may dis-
close information to a lawyer, place documents or other prop-
erty in the lawyer’s custody, or rely on the lawyer’s advice. A
lawyer’s consultations with a prospective client usually are
limited in time and depth and leave both the prospective client
and the lawyer free (and sometimes required) to proceed no
further. Hence, prospective clients should receive some but
not all of the protection afforded clients.
RULES OF PROFESSIONAL CONDUCTRule 1.18
A person becomes a prospective client by consulting with
a lawyer about the possibility of forming a client-lawyer rela-
tionship with respect to a matter. Whether communications,
including written, oral, or electronic communications, consti-
tute a consultation depends on the circumstances. For exam-
ple, a consultation is likely to have occurred if a lawyer, either
in person or through the lawyer’s advertising in any medium,
specifically requests or invites the submission of information
about a potential representation without clear and reasonably
understandable warnings and cautionary statements that limit
the lawyer’s obligations, and a person provides information in
response. In contrast, a consultation does not occur if a person
provides information to a lawyer in response to advertising that
merely describes the lawyer’s education, experience, areas
of practice, and contact information, or provides legal informa-
tion of general interest. Such a person communicates informa-
tion unilaterally to a lawyer, without any reasonable
expectation that the lawyer is willing to discuss the possibility
of forming a client-lawyer relationship, and is thus not a ‘‘pro-
spective client.’’ Moreover, a person who communicates with
a lawyer for the purpose of disqualifying the lawyer is not a
‘‘prospective client.’’
It is often necessary for a prospective client to reveal infor-
mation to the lawyer during an initial consultation prior to the
decision about formation of a client-lawyer relationship. The
lawyer often must learn such information to determine whether
there is a conflict of interest with an existing client and whether
the matter is one that the lawyer is willing to undertake. Subsec-
tion (b) prohibits the lawyer from using or revealing that infor-
mation, except as permitted by Rule 1.9, even if the client or
lawyer decides not to proceed with the representation. The
duty exists regardless of how brief the initial consultation
may be.
In order to avoid acquiring disqualifying information from
a prospective client, a lawyer considering whether or not to
undertake a new matter should limit the initial consultation to
only such information as reasonably appears necessary for
that purpose. Where the information indicates that a conflict
of interest or other reason for nonrepresentation exists, the
lawyer should so inform the prospective client or decline the
representation. If the prospective client wishes to retain the
lawyer, and if consent is possible under Rule 1.7, then consent
from all affected present or former clients must be obtained
before accepting the representation.
A lawyer may condition consultations with a prospective
client on the person’s informed consent that no information
disclosed during the consultation will prohibit the lawyer from
representing a different client in the matter. See Rule 1.0 (f)
for the definition of informed consent. If the agreement
expressly so provides, the prospective client may also consent
to the lawyer’s subsequent use of information received from
the prospective client.
Even in the absence of an agreement, under subsection
(c), the lawyer is not prohibited from representing a client with
interests adverse to those of the prospective client in the same
or a substantially related matter unless the lawyer has received
from the prospective client information that could be signifi-
cantly harmful if used in the matter.
Under subsection (c), the prohibition in this Rule is imputed
to other lawyers as provided in Rule 1.10, but, under subsec-
tion (d) (1), imputation may be avoided if the lawyer obtains
the informed consent, confirmed in writing, of boththe prospec-
tive and affected clients. In the alternative, imputation may be
avoided if the conditions of subsection (d) (2) are met and all
disqualified lawyers are timely screened and written notice
is promptly given to the prospective client. See Rule 1.0 (l)
(requirements for screening procedures).
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Notice, including a general description of the subject matter
about which the lawyer was consulted, and of the screening
procedures employed, generally should be given as soon as
practicable after the need for screening becomes apparent.
For the duty of competence of a lawyer who gives assis-
tance on the merits of a matter to a prospective client, see Rule
1.1. For a lawyer’s duties when a prospective client entrusts
valuables or papers to the lawyer’s care, see Rule 1.15.
COUNSELOR
Rule 2.1. Advisor
In representing a client, a lawyer shall exercise
independent professional judgment and render
candid advice. In rendering advice, a lawyer may
refer not only to law but to other considerations
such as moral, economic, social and political fac-
tors, that may be relevant to the client’s situation.
(P.B. 1978-1997, Rule 2.1.)
COMMENTARY: Scope of Advice. A client is entitled to
straightforward advice expressing the lawyer’s honest assess-
ment. Legal advice often involves unpleasant facts and alter-
natives that a client may be disinclined to confront. In
presenting advice, a lawyer endeavors to sustain the client’s
morale and may put advice in as acceptable a form as honesty
permits. However, a lawyer should not be deterred from giving
candid advice by the prospect that the advice will be unpalat-
able to the client.
Advice couched in narrow legal terms may be of little value
to a client, especially where practical considerations, such
as cost or effects on other people, are predominant. Purely
technical legal advice, therefore, can sometimes be inade-
quate. It is proper for a lawyer to refer to relevant moral and
ethical considerations in giving advice. Although a lawyer is
not a moral advisor as such, moral and ethical considerations
impinge upon most legal questions and may decisively influ-
ence how the law will be applied.
A client may expressly or impliedly ask the lawyer for purely
technical advice. When such a request is made by a client
experienced in legal matters, the lawyer may accept it at face
value. When such a request is made by a client inexperienced
in legal matters, however, the lawyer’s responsibility as advisor
may include indicating that more may be involved than strictly
legal considerations.
Matters that go beyond strictly legal questions may also be
in the domain of another profession. Family matters can
involve problems within the professional competence of psy-
chiatry, clinical psychology or social work; business matters
can involve problems within the competence of the accounting
profession or of financial specialists. Where consultation with
a professional in another field is itself something a competent
lawyer would recommend, the lawyer should make such a
recommendation. At the same time, a lawyer’s advice at its
best often consists of recommending a course of action in the
face of conflicting recommendations of experts.
Offering Advice. In general, a lawyer is not expected to
give advice until asked by the client. However, when a lawyer
knows that a client proposes a course of action that is likely
to result in substantial adverse legal consequences to the
client, the lawyer’s duty to the client under Rule 1.4 may require
that the lawyer offer advice if the client’s course of action is
related to the representation. Similarly, when a matter is likely
to involve litigation, it may be necessary under Rule 1.4 to
inform the client of forms of disputeresolution that might consti-
tute reasonable alternatives to litigation.
RULES OF PROFESSIONAL CONDUCT Rule 2.4
A lawyer ordinarily has no duty to initiate investigation of
a client’s affairs or to give advice that the client has indicated
is unwanted, but a lawyer may initiate advice to a client when
doing so appears to be in the client’s interest.
Rule 2.2. Intermediary
[Repealed as of Jan. 1, 2007.]
Rule 2.3. Evaluation for Use by Third
Persons
(a) A lawyer may provide an evaluation of a
matter affecting a client for the use of someone
other than the client if the lawyer reasonably
believes that making the evaluation is compatible
with other aspects of the lawyer’s relationship with
the client.
(b) When the lawyer knows or reasonably
should know that the evaluation is likely to affect
the client’s interests materially and adversely, the
lawyer shall not provide the evaluation unless the
client gives informed consent.
(c) Except as disclosure is authorized in con-
nection with a report of an evaluation, information
relating to the evaluation is otherwise protected
by Rule 1.6.
(P.B. 1978-1997, Rule 2.3.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: Definition. An evaluation may be per-
formed at the client’s direction or when impliedly authorized
in order to carry out the representation. See Rule 1.2. Such
an evaluation may be for the primary purpose of establishing
information for the benefit of third parties; for example, an
opinion concerning the title of property rendered at the behest
of a vendor for the information of a prospective purchaser, or
at the behest of a borrower for the information of a prospective
lender. In some situations, the evaluation may be required by
a government agency; for example, an opinion concerning the
legality of the securities registered for sale under the securities
laws. In other instances, the evaluation may be required by
a third person, such as a purchaser of a business.
A legal evaluation should be distinguished from an investi-
gation of a person with whom the lawyer does not have a
client-lawyer relationship. A legal evaluation of a client should
also be distinguished from a report by counsel for an insured
to the insured’s carrier on the status of the matter that is the
subject of representation, provided the report does not contain
matter that is detrimental to the client’s relationship with the
insurance carrier. For example, a lawyer retained by a pur-
chaser to analyze a vendor’s title to property does not have
a client-lawyer relationship with the vendor. So also, an investi-
gation into a person’s affairs by a government lawyer, or by
special counsel employed by the government, is not an evalua-
tion as that term is used in this Rule. The question is whether
the lawyer is retained by the person whose affairs are being
examined. When the lawyer is retained by that person, the
general rules concerning loyalty to client and preservation of
confidences apply, which is not the case if the lawyer is
retained by someone else. For this reason, it is essential to
identify the person by whom the lawyer is retained. This should
be made clear not only to the person under examination, but
also to others to whom the results are to be made available.
Duties Owed to Third Person and Client. When the evalu-
ation is intended for the information or use of a third person,
a legal duty to that person may or may not arise. That legal
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question is beyond the scope of this Rule. However, since
such an evaluation involves a departure from the normal client-
lawyer relationship, careful analysis of the situation is required.
The lawyer must be satisfied as a matter of professional judg-
ment that making the evaluation is compatible with other func-
tions undertaken in behalf of the client. For example, if the
lawyer is acting as advocate in defending the client against
charges of fraud, it would normally be incompatible with that
responsibility for the lawyer to perform an evaluation for others
concerning the same or a related transaction. Assuming no
such impediment is apparent, however, the lawyer should
advise the client of the implications of the evaluation, particu-
larly the lawyer’s responsibilities to third persons and the duty
to disseminate the findings.
Access to and Disclosure of Information. The quality
of an evaluation depends on the freedom and extent of the
investigation upon which it is based. Ordinarily, a lawyer should
have whatever latitude of investigation seems necessary as
a matter of professional judgment. Under some circumstances,
however, the terms of the evaluation may be limited. For exam-
ple, certain issues or sources may be categorically excluded,
or the scope of search may be limited by time constraints or
the noncooperation of persons having relevant information.
Any such limitations that are material to the evaluation should
be described in the report. If after a lawyer has commenced
an evaluation, the client refuses to comply with the terms upon
which it was understood the evaluation was to have been
made, the lawyer’s obligations are determined by law, having
reference to the terms of the client’s agreement and the sur-
rounding circumstances. In no circumstances is the lawyer
permitted to knowingly make a false statement of material fact
or law in providing an evaluation under this Rule. See Rule 4.1.
Obtaining Client’s Informed Consent. Information relat-
ing to an evaluation is protected by Rule 1.6. In many situa-
tions, providing an evaluation to a third party poses no
significant risk to the client; thus, the lawyer may be impliedly
authorized to disclose information to carry out the representa-
tion. See Rule 1.6 (a). Where, however, it is reasonably likely
that providing the evaluation will affect the client’s interests
materially and adversely, the lawyer must first obtain the cli-
ent’s consent after the client has been adequately informed
concerning the important possible effects on the client’s inter-
ests. See Rules 1.6 (a) and 1.0 (f).
Financial Auditors’ Requests for Information. When a
question concerning the legal situation of a client arises at the
instance of the client’s financial auditor and the question is
referred to the lawyer, the lawyer’s response may be made
in accordance with procedures recognized in the legal profes-
sion. Such a procedure is set forth in the American Bar Associ-
ation Statement of Policy Regarding Lawyers’ Responses to
Auditors’ Requests for Information, adopted in 1975.
Rule 2.4. Lawyer Serving as Third-Party
Neutral
(a) A lawyer serves as a third-party neutral
when the lawyer assists two or more persons who
are not clients of the lawyer to reach a resolution of
a dispute or other matter that has arisen between
them. Service as a third-party neutral may include
service as an arbitrator, a mediator or in such
other capacity as will enable the lawyer to assist
the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral
shall inform unrepresented parties that the lawyer
RULES OF PROFESSIONAL CONDUCTRule 2.4
is not representing them. When the lawyer knows
or reasonably should know that a party does not
understand the lawyer’s role in the matter, the
lawyer shall explain the difference between the
lawyer’s role as a third-party neutral and a law-
yer’s role as one who represents a client.
(Adopted June 26, 2006, to take effect Jan. 1, 2007.)
COMMENTARY: Alternative dispute resolution has
become a substantial part of the civil justice system.Aside from
representing clients in dispute-resolution processes, lawyers
often serve as third-party neutrals. A third-party neutral is a
person, such as a mediator, arbitrator, conciliator or evaluator,
who assists the parties, represented or unrepresented, in the
resolution of a dispute or in the arrangement of a transaction.
Whether a third-party neutral serves primarily as a facilitator,
evaluator or decision maker depends on the particular process
that is either selected by the parties or mandated by a court.
The role of a third-party neutral is not unique to lawyers,
although, in some court-connected contexts, only lawyers are
allowed to serve in this role or to handle certain types of cases.
In performing this role, the lawyer may be subject to court rules
or other law that apply either to third-party neutrals generally
or to lawyers serving as third-party neutrals. Lawyer-neutrals
may also be subject to various codes of ethics, such as the
Code of Ethics for Arbitration in Commercial Disputes prepared
by a joint committee of the American Bar Association and the
American Arbitration Association or the Model Standards of
Conduct for Mediators jointly prepared by the American Bar
Association, the American Arbitration Association and the
Society of Professionals in Dispute Resolution.
Unlike nonlawyers who serve as third-party neutrals, law-
yers serving in this role may experience unique problems as
a result of differences between the role of a third-party neutral
and a lawyer’s service as a client representative. The potential
for confusion is significant when the parties are unrepresented
in the process. Thus, subsection (b) requires a lawyer-neutral
to inform unrepresented parties that the lawyer is not repre-
senting them. For some parties, particularly parties who fre-
quently use dispute-resolution processes, this information will
be sufficient. For others, particularly those who are using the
process for the first time, more information will be required.
Where appropriate, the lawyer should inform unrepresented
parties of the important differences between the lawyer’s role
as third-party neutral and a lawyer’s role as a client representa-
tive, including the inapplicability of the attorney-client eviden-
tiary privilege as well as the inapplicability of the duty of
confidentiality. The extent of disclosure required under this
subsection will depend on the particular parties involved and
the subject matter of the proceeding, as well as the particular
features of the dispute-resolution process selected.
A lawyer who serves as a third-party neutral subsequently
may be asked to serve as a lawyer representing a client in
the same matter. The conflicts of interest that arise for both
the individual lawyer and the lawyer’s law firm are addressed
in Rule 1.12.
Lawyers who represent clients in alternative dispute-resolu-
tion processes are governed by the Rules of Professional
Conduct. When the dispute-resolution process takes place
before a tribunal, as in binding arbitration (see Rule 1.0 [n]),
the lawyer’s duty of candor is governed by Rule 3.3. Otherwise,
the lawyer’s duty of candor toward both the third-party neutral
and other parties is governed by Rule 4.1.
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ADVOCATE
Rule 3.1. Meritorious Claims and Con-
tentions
A lawyer shall not bring or defend a proceeding,
or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that
is not frivolous, which includes a good faith argu-
ment for an extension, modification or reversal of
existing law. A lawyer for the defendant in a crimi-
nal proceeding, or the respondent in a proceeding
that could result in incarceration, may neverthe-
less so defend the proceeding as to require that
every element of the case be established.
(P.B. 1978-1997, Rule 3.1.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: The advocate has a duty to use legal
procedure for the fullest benefit of the client’s cause, but also
a duty not to abuse legal procedure. The law, both procedural
and substantive, establishes the limits within which an advo-
cate may proceed. However, the law is not always clear and
never is static. Accordingly, in determining the proper scope
of advocacy, account must be taken of the law’s ambiguities
and potential for change.
The filing of an action or defense or similar action taken
for a client is not frivolous merely because the facts have not
first been fully substantiated or because the lawyer expects
to develop vital evidence only by discovery. What is required
of lawyers, however, is that they inform themselves about
the facts of their clients’ cases and the applicable law and
determine that they can make good faith arguments in support
of their clients’ positions. Such action is not frivolous even
though the lawyer believes that the client’s position ultimately
will not prevail. The action is frivolous, however, if the lawyer
is unable either to make a good faith argument on the merits
of the action taken or to support the action taken by a good
faith argument for an extension, modification or reversal of
existing law.
The lawyer’s obligations under this Rule are subordinate
to federal or state constitutional law that entitles a defendant
in a criminal matter to the assistance of counsel in presenting
a claim or contention that otherwise would be prohibited by
this Rule.
Rule 3.2. Expediting Litigation
A lawyer shall make reasonable efforts to expe-
dite litigation consistent with the interests of the
client.
(P.B. 1978-1997, Rule 3.2.)
COMMENTARY: Dilatory practices bring the administration
of justice into disrepute. Although there will be occasions when
a lawyer may properly seek a postponement for personal rea-
sons, it is not proper for a lawyer to routinely fail to expedite
litigation solely for the convenience of the advocates. Nor will
a failure to expedite be reasonable if done for the purpose of
frustrating an opposing party’s attempt to obtain rightful
redress or repose. It is not a justification that similar conduct
is often tolerated by the bench and bar. The question is whether
a competent lawyer acting in good faith would regard the
course of action as having some substantial purpose other
than delay. Realizing financial or other benefit from otherwise
improper delay in litigation is not a legitimate interest of the
client.
RULES OF PROFESSIONAL CONDUCT Rule 3.3
Rule 3.3. Candor toward the Tribunal
(a) A lawyer shall not knowingly:
(1) Make a false statement of fact or law to a
tribunal or fail to correct a false statement of mate-
rial fact or law previously made to the tribunal by
the lawyer;
(2) Fail to disclose to the tribunal legal authority
in the controlling jurisdiction known to the lawyer
to be directly adverse to the position of the client
and not disclosed by opposing counsel; or
(3) Offer evidence that the lawyer knows to be
false. If a lawyer, the lawyer’s client, or a witness
called by the lawyer, has offered material evi-
dence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial mea-
sures, including, if necessary, disclosure to the
tribunal.
(b) A lawyer who represents a client in an adju-
dicative proceeding and who knows that a person
intends to engage, is engaging or has engaged
in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial mea-
sures, including, if necessary, disclosure to the
tribunal.
(c) The duties stated in subsections (a) and (b)
continue at least to the conclusion of the proceed-
ing, and apply even if compliance requires disclo-
sure of information otherwise protected by Rule
1.6.
(d) In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to
the lawyer that will enable the tribunal to make
an informed decision, whether or not the facts
are adverse.
(e) When, prior to judgment, a lawyer becomes
aware of discussion or conduct by a juror which
violates the trial court’s instructions to the jury,
the lawyer shall promptly report that discussion
or conduct to the trial judge.
(P.B. 1978-1997, Rule 3.3.)
COMMENTARY: This Rule governs the conduct of a lawyer
who is representing a client in the proceedings of a tribunal.
See Rule 1.0 (n) for the definition of ‘‘tribunal.’’ It also applies
when the lawyer is representing a client in an ancillary proceed-
ing conducted pursuant to the tribunal’s adjudicative authority,
such as a deposition. Thus, for example, subsection (a) (3)
requires a lawyer to take reasonable remedial measures if
the lawyer comes to know that a client who is testifying in a
deposition has offered evidence that is false.
This Rule sets forth the special duties of lawyers as officers
of the court to avoid conduct that undermines the integrity of
the adjudicative process. A lawyer acting as an advocate in
an adjudicative proceeding has an obligation to present the
client’s case with persuasive force. Performance of that duty
while maintaining confidences of the client, however, is quali-
fied by the advocate’s duty of candor to the tribunal. Conse-
quently, although a lawyer in an adversary proceeding is not
required to present an impartial exposition of the law or to
vouch for the evidence submitted in a cause, the lawyer must
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not allow the tribunal to be misled by false statements of law
or fact or evidence that the lawyer knows to be false.
Representations by a Lawyer. An advocate is responsible
for pleadings and other documents prepared for litigation, but
is usually not required to have personal knowledge of matters
asserted therein, for litigation documents ordinarily present
assertions by the client, or by someone on the client’s behalf,
and not assertions by the lawyer. Compare Rule 3.1. However,
an assertion purporting to be on the lawyer’s own knowledge,
as in an affidavit by the lawyer or in a statement in open
court, may properly be made only when the lawyer knows the
assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry. There are circumstances where
failure to make a disclosure is the equivalent of an affirmative
misrepresentation. The obligation prescribed in Rule 1.2 (d)
not to counsel a client to commit or assist the client in commit-
ting a fraud applies in litigation. Regarding compliance with
Rule 1.2 (d), see the Commentary to that Rule. See also the
Commentary to Rule 8.4 (2).
Legal Argument. Legal argument based on a knowingly
false representation of law constitutes dishonesty toward the
tribunal. A lawyer is not required to make a disinterested expo-
sition of the law, but must recognize the existence of pertinent
legal authorities. Furthermore, as stated in subsection (a) (2),
an advocate has a duty to disclose directly adverse authority
in the controlling jurisdiction that has not been disclosed by
the opposing party. The underlying concept is that legal argu-
ment is a discussion seeking to determine the legal premises
properly applicable to the case.
Offering Evidence. Subsection (a) (3) requires that the
lawyer refuse to offer evidence that the lawyer knows to be
false, regardless of the client’s wishes. This duty is premised
on the lawyer’s obligation as an officer of the court to prevent
the trier of fact from being misled by false evidence. A lawyer
does not violate this Rule if the lawyer offers the evidence for
the purpose of establishing its falsity.
If a lawyer knows that the client intends to testify falsely or
wants the lawyer to introduce false evidence, thelawyer should
seek to persuade the client that the evidence should not be
offered. If the persuasion is ineffective and the lawyer contin-
ues to represent the client, the lawyer must refuse to offer the
false evidence. If only a portion of a witness’ testimony will
be false, the lawyer may call the witness to testify but may
not elicit or otherwise permit the witness to present the testi-
mony that the lawyer knows is false.
The duties stated in subsections (a) and (b) apply to all
lawyers, including defense counsel in criminal cases. In some
jurisdictions, however, courts have required counsel to present
the accused as a witness or to give a narrative statement if
the accused so desires, even if counsel knows that the testi-
mony or statement will be false. The obligation of the advocate
under the Rules of Professional Conduct is subordinate to
such requirements.
The prohibition against offering false evidence only applies
if the lawyer knows that the evidence is false. A lawyer’s
reasonable belief that evidence is false does not preclude its
presentation to the trier of fact. A lawyer’s knowledge that
evidence is false, however, can be inferred from the circum-
stances. See Rule 1.0 (g). Thus, although a lawyer should
resolve doubts about the veracity of testimony or other evi-
dence in favor of the client, the lawyer cannot ignore an obvi-
ous falsehood.
Because of the special protections historically provided
criminal defendants, however, this Rule does not permit a
lawyer to refuse to offer the testimony of such a client where
the lawyer reasonably believes but does not know that the
testimony will be false. Unless the lawyer knows the testimony
RULES OF PROFESSIONAL CONDUCTRule 3.3
will be false, the lawyer must honor the client’s decision to
testify.
Remedial Measures. Having offered material evidence in
the belief that it was true, a lawyer may subsequently come
to know that the evidence is false. Or, a lawyer may be sur-
prised when the lawyer’s client, or another witness called by
the lawyer, offers testimony the lawyer knows to be false,
either during the lawyer’s direct examination or in response
to cross-examination by the opposing lawyer. In such situa-
tions or if the lawyer knows of the falsity of testimony elicited
from the client during a deposition, the lawyer must take rea-
sonable remedial measures. In such situations, the advocate’s
proper course is to remonstrate with the client confidentially,
advise the client of the lawyer’s duty of candor to the tribunal
and seek the client’s cooperation with respect tothe withdrawal
or correction of the false statements or evidence. If that fails,
the advocate must take further remedial action. If withdrawal
from the representation is not permitted or will not undo the
effect of the false evidence, the advocate must make such
disclosure to the tribunal as is reasonably necessary to remedy
the situation, even if doing so requires the lawyer to reveal
information that otherwise would be protected by Rule 1.6. It
is for the tribunal then to determine what should be done.
The disclosure of a client’s false testimony can result in
grave consequences to the client, including not only a sense
of betrayal but also loss of the case and perhaps a prosecution
for perjury. But the alternative is that the lawyer cooperate
in deceiving the court, thereby subverting the truth-finding
process which the adversary system is designed to implement.
See Rule 1.2 (d). Furthermore, unless it is clearly understood
that the lawyer will act upon the duty to disclose the existence
of false evidence, the client can simply reject the lawyer’s
advice to reveal the false evidence and insist that the lawyer
keep silent. Thus, the client could in effect coerce the lawyer
into being a party to fraud on the court.
Preserving Integrity of Adjudicative Process. Lawyers
have a special obligation to protect a tribunal against criminal
or fraudulent conduct that undermines the integrity of the adju-
dicative process, such as bribing, intimidating or otherwise
unlawfully communicating with a witness, juror, court official
or other participant in the proceeding, unlawfully destroying or
concealing documents or other evidence or failing to disclose
information to the tribunal when required by law to do so.
Thus, subsection (b) requires a lawyer to take reasonable
remedial measures, including disclosure if necessary, when-
ever the lawyer knows that a person, including the lawyer’s
client, intends to engage, is engaging or has engaged in crimi-
nal or fraudulent conduct related to the proceeding. Nothing
in Rule 3.3 (e) is meant to limit a lawyer’s obligation to take
appropriate action after judgment has entered.
Duration of Obligation. A practical time limit on the obliga-
tion to rectify false evidence or false statements of fact has
to be established. The conclusion of the proceeding is a rea-
sonably definite point for the termination of the obligation. In
criminal and juvenile delinquency matters, the duty to correct
a newly discovered and material falsehood continues until
the defendant or delinquent is discharged from custody or
released from judicial supervision, whichever occurs later. The
lawyer shall notify the tribunal that false evidence or false
statements of fact were made.
Ex Parte Proceedings. Ordinarily, an advocate has the
limited responsibility of presenting one side of the matters that
a tribunal should consider in reaching a decision; the conflicting
position is expected to be presented by the opposing party.
However, in any ex parte proceeding, such as an application
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for a temporary restraining order, there is no balance of presen-
tation by opposing advocates. The object of an ex parte pro-
ceeding is nevertheless to yield a substantially just result. The
judge has an affirmative responsibility to accord the absent
party just consideration. The lawyer for the represented party
has the correlative duty to make disclosures of material facts
known to the lawyer and that the lawyer reasonably believes
are necessary to an informed decision.
Withdrawal. Normally, a lawyer’s compliance with the duty
of candor imposed by this Rule does not require that the lawyer
withdraw from the representation of a client whose interests
will be or have been adversely affected by the lawyer’s disclo-
sure. The lawyer may, however, be required by Rule 1.16 (a)
to seek permission of the tribunal to withdraw if the lawyer’s
compliance with this Rule’s duty of candor results in such an
extreme deterioration of the client-lawyer relationship that the
lawyer can no longer competently represent the client. Also
see Rule 1.16 (b) for the circumstances in which a lawyer will
be permitted to seek a tribunal’s permission to withdraw. In
connection with a request for permission to withdraw that is
premised on a client’s misconduct, a lawyer may reveal infor-
mation relating to the representation only to the extent reason-
ably necessary to comply with this Rule or as otherwise
permitted by Rule 1.6.
Rule 3.4. Fairness to Opposing Party and
Counsel
A lawyer shall not:
(1) Unlawfully obstruct another party’s access
to evidence or unlawfully alter, destroy or conceal
a document or other material having potential evi-
dentiary value. A lawyer shall not counsel or assist
another person to do any such act;
(2) Falsify evidence, counsel or assist a witness
to testify falsely, or offer an inducement to a wit-
ness that is prohibited by law;
(3) Knowingly disobey an obligation under the
rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists;
(4) In pretrial procedure, make a frivolous dis-
covery request or fail to make reasonably diligent
effort to comply with a legally proper discovery
request by an opposing party;
(5) In trial, allude to any matter that the lawyer
does not reasonably believe is relevant or that will
not be supported by admissible evidence, assert
personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion
as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the guilt
or innocence of an accused; or
(6) Request a person other than a client to
refrain from voluntarily giving relevant information
to another party unless:
(A) The person is a relative or an employee or
other agent of a client; and
(B) The lawyer reasonably believes that the per-
son’s interests will not be adversely affected by
refraining from giving such information.
RULES OF PROFESSIONAL CONDUCT Rule 3.6
(7) Present, participate in presenting, or
threaten to present criminal charges solely to
obtain an advantage in a civil matter.
(P.B. 1978-1997, Rule 3.4.)
COMMENTARY: The procedure of the adversary system
contemplates that the evidence in a case is to be marshaled
competitively by the contending parties. Fair competition in
the adversary system is secured by prohibitions against
destruction or concealment of evidence, improperly influencing
witnesses, obstructive tactics in discovery procedure, and
the like.
Documents and other items of evidence are often essential
to establish a claim or defense. Subject to evidentiary privi-
leges, the right of an opposing party, including the government,
to obtain evidence through discovery or subpoena is an
important procedural right. The exercise of that right can be
frustrated if relevant material is altered, concealed or
destroyed. Applicable law in many jurisdictions makes it an
offense to destroy material for the purpose of impairing its
availability in a pending proceeding or one whose commence-
ment can be foreseen. Falsifying evidence is also generally a
criminal offense. Subdivision (1) applies to evidentiary material
generally, including computerized information. Applicable law
may permit a lawyer to take temporary possession of physical
evidence of client crimes for the purpose of conducting a
limited examination that will not alter or destroy material char-
acteristics of the evidence. In such a case, applicable law may
require the lawyer to turn the evidence over to the police or
other prosecuting authority, depending on the circumstances.
With regard to subdivision (2), it is not improper to pay a
witness’ expenses or to compensate an expert witness on
terms permitted by law. The common law rule in most jurisdic-
tions is that it is improper to pay an occurrence witness any
fee for testifying and that it is improper to pay an expert witness
a contingent fee.
Subdivision (6) permits a lawyer to advise employees of a
client to refrain from giving information to another party, for
the employees may identify their interests with those of the
client. See also Rule 4.2.
Rule 3.5. Impartiality and Decorum
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
A lawyer shall not:
(1) Seek to influence a judge, juror, prospective
juror or other official by means prohibited by law;
(2) Communicate ex parte with such a person
during the proceeding unless authorized to do so
by law or court order;
(3) Communicate with a juror or prospective
juror after discharge of the jury if:
(a) the communication is prohibited by law or
court order;
(b) the juror has made known to the lawyer a
desire not to communicate; or
(c) the communication involves misrepresenta-
tion, coercion, duress or harassment; or
(4) Engage in conduct intended to disrupt a
tribunal or ancillary proceedings such as deposi-
tions and mediations.
(P.B. 1978-1997, Rule 3.5.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 29, 2007, to take
effect Jan. 1, 2008.)
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COMMENTARY: Many forms of improper influence upon
a tribunal are proscribed by criminal law. Others are specified
in the ABA Model Code of Judicial Conduct, with which an
advocate should be familiar. A lawyer is required to avoid
contributing to a violation of such provisions.
During a proceeding a lawyer may not communicate ex
parte with persons serving in an official capacity in the proceed-
ing, such as judges, masters or jurors, unless authorized to
do so by law or court order.
A lawyer may on occasion want to communicate with a
juror or prospective juror after the jury has been discharged.
The lawyer may do so unless the communication is prohibited
by law or a court order but must respect the desire of the juror
not to talk with the lawyer. The lawyer may not engage in
improper conduct during the communication.
The advocate’s function is to present evidence and argu-
ment so that the cause may be decided according to law.
Refraining from abusive or obstreperous conduct is a corollary
of the advocate’s right to speak on behalf of litigants. A lawyer
may stand firm against abuse by a judge but should avoid
reciprocation; the judge’s default is no justification for similar
dereliction by an advocate. An advocate can present the
cause, protect the record for subsequent review and preserve
professional integrity by patient firmness no less effectively
than by belligerence or theatrics.
Rule 3.6. Trial Publicity
(a) A lawyer who is participating or has partici-
pated in the investigation or litigation of a matter
shall not make an extrajudicial statement that the
lawyer knows or reasonably should know will be
disseminated by means of public communication
and will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in the
matter.
(b) Notwithstanding subsection (a), a lawyer
may make a statement that a reasonable lawyer
would believe is required to protect a client from
the substantial undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyer’s
client. A statement made pursuant to this subsec-
tion shall be limited to such information as is nec-
essary to mitigate the recent adverse publicity.
(c) No lawyer associated in a firm or govern-
ment agency with a lawyer subject to subsection
(a) shall make a statement prohibited by subsec-
tion (a).
(P.B. 1978-1997, Rule 3.6.) (Amended June 24, 2002, to
take effect Jan. 1, 2003; amended June 26, 2006, to take
effect Jan. 1, 2007.)
COMMENTARY: (1) It is difficult to strike a balance between
protecting the right to a fair trial and safeguarding the right of
free expression. Preserving the right to a fair trial necessarily
entails some curtailment of the information that may be dis-
seminated about a party prior to trial, particularly where trial
by jury is involved. If there were no such limits, the result
would be the practical nullification of the protective effect of
the rules of forensic decorum and the exclusionary rules of
evidence. On the other hand, there are vital social interests
served by the free dissemination of information about events
having legal consequences and about legal proceedings them-
selves. The public has a right to know about threats to its
safety and measures aimed at assuring its security. It also
RULES OF PROFESSIONAL CONDUCTRule 3.6
has a legitimate interest in the conduct of judicial proceedings,
particularly in matters of general public concern. Furthermore,
the subject matter of legal proceedings is often of direct signifi-
cance in debate and deliberations over questions of public
policy.
(2) Special rules of confidentiality may validly govern pro-
ceedings in juvenile, domestic relations and mental disability
proceedings, and perhaps other types of litigation. Rule 3.4
(3) requires compliance with such Rules.
(3) The Rule sets forth a basic general prohibition against
a lawyer making statements that the lawyer knows or should
know will have a substantial likelihood of materially prejudicing
an adjudicative proceeding. Recognizing that the public value
of informed commentary is great and the likelihood of prejudice
to a proceeding by the commentary of a lawyer who is not
involved in the proceeding is small, the Rule applies only to
lawyers who are, or who have been involved in the investiga-
tion or litigation of a case, and their associates.
(4) Certain subjects would not ordinarily be considered to
present a substantial likelihood of material prejudice, such as:
(a) the claim, offense or defense involved and, except when
prohibited by law, the identity of the persons involved;
(b) information contained in a public record;
(c) that an investigation of the matter is in progress;
(d) the scheduling or result of any step in litigation;
(e) a request for assistance in obtaining evidence and infor-
mation necessary thereto;
(f) a warning of danger concerning the behavior of a person
involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public
interest; and
(g) in a criminal case: in addition to subparagraphs (a)
through (f):
(i) identity, residence, occupation and family status of the
accused;
(ii) if the accused has not been apprehended, information
necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or
agencies and the length of the investigation.
(5) There are, on the other hand, certain subjects which
are more likely than not to have a material prejudicial effect
on a proceeding, particularly when they refer to a civil matter
triable to a jury, a criminal matter, or any other proceeding
that could result in incarceration. These subjects relate to:
(a) the character, credibility, reputation or criminal record
of a party, suspect in a criminal investigation or witness, or
the identity of a witness, or the expected testimony of a party
or witness;
(b) in a criminal case or proceeding that could result in
incarceration, the possibility of a plea of guilty to the offense
or the existence or contents of any confession, admission, or
statement given by a defendant or suspect or that person’s
refusal or failure to make a statement;
(c) the performance or results of any examination or test
or the refusal or failure of a person to submit to an examination
or test, or the identity or nature of physical evidence expected
to be presented;
(d) any opinion as to the guilt or innocence of a defendant
or suspect in a criminal case or proceeding that could result
in incarceration;
(e) information that the lawyer knows or reasonably should
know is likely to be inadmissible as evidence in a trial and
that would, if disclosed, create a substantial risk of prejudicing
an impartial trial; or
(f) the fact that a defendant has been charged with a crime,
unless there is included therein a statement explaining that
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the charge is merely an accusation and that the defendant is
presumed innocent until and unless proven guilty.
(6) Another relevant factor in determining prejudice is the
nature of the proceeding involved. Criminal jury trials will be
most sensitive to extrajudicial speech. Civil trials may be less
sensitive. Nonjury hearings and arbitration proceedings may
be even less affected. The Rule will still place limitations on
prejudical comments in these cases, but the likelihood of preju-
dice may be different depending on the type of proceeding.
(7) Finally, extrajudicial statements that might otherwise
raise a question under this Rule may be permissible when
they are made in response to statements made publicly by
another party, another party’s lawyer, or third persons, where
a reasonable lawyer would believe a public response is
required in order to avoid prejudice to the lawyer’s client. When
prejudicial statements have been publicly made by others,
responsive statements may have the salutary effect of less-
ening any resulting adverse impact on the adjudicative pro-
ceeding. Such responsive statements should be limited to
contain only such information as is necessary to mitigate
undue prejudice created by the statements made by others.
(8) See Rule 3.8 (5) for additional duties of prosecutors in
connection with extrajudicial statements about criminal pro-
ceedings.
Rule 3.7. Lawyer as Witness
(a) A lawyer shall not act as advocate at a trial
in which the lawyer is likely to be a necessary
witness unless:
(1) The testimony relates to an uncontested
issue;
(2) The testimony relates to the nature and
value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work
substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in
which another lawyer in the lawyer’s firm is likely
to be called as a witness unless precluded from
doing so by Rule 1.7 or Rule 1.9.
(P.B. 1978-1997, Rule 3.7.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
COMMENTARY: Combining the roles of advocate