Preamble
A Lawyer's Responsibilities
[1] 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. Whether or not engaging in the practice of law,
lawyers should conduct themselves honorably.
[2] As a representative of clients, a
lawyer performs various functions. As advisor, a lawyer provides a
client with an informed understanding of the client's legal rights
and obligations and explains their practical implications. As
advocate, a lawyer asserts the client's position under the rules of
the adversary system. As negotiator, a lawyer seeks a result
advantageous to the client but consistent with requirements of
honest dealings with others. As an evaluator, a lawyer acts by
examining a client's legal affairs and reporting about them to the
client or to others.
[3] 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.,
ERs 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 conduct of a
business is subject to discipline for engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation. See ER 8.4.
[4] In all professional functions a
lawyer should be competent, prompt and diligent. A lawyer should
maintain communication with a client concerning the representation.
A lawyer should keep in confidence information relating to
representation of a client except so far as disclosure is required
or permitted by the Rules of Professional Conduct or other law.
[5] A lawyer's conduct should conform to
the requirements of the law, both in professional service to
clients and in the lawyer's business and personal affairs. A lawyer
should use the law's procedures only for legitimate purposes and
not to harass or intimidate others. A lawyer should demonstrate
respect for the legal system and for those who serve it, including
judges, other lawyers and public officials. While it is a lawyer's
duty, when necessary, to challenge the rectitude of official
action, it is also a lawyer's duty to uphold legal process.
[6] As a public citizen, a lawyer should
seek improvement of the law, access to the legal system, 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. In addition, a lawyer should further the public's
understanding of and confidence in the rule of law and the justice
system because legal institutions in a constitutional democracy
depend on popular participation and support to maintain their
authority. A lawyer should be mindful of deficiencies in the
administration of justice and of the fact that the poor, and
sometimes persons who are not poor, cannot afford adequate legal
assistance. Therefore, all lawyers should devote professional time
and resources and use civic influence to ensure equal access to our
system of justice for all those who because of economic or social
barriers cannot afford or secure adequate legal counsel. A lawyer
should aid the legal profession in pursuing these objectives and
should help the bar regulate itself in the public interest.
[7] Many of a lawyer's professional
responsibilities are prescribed in the Rules of Professional
Conduct, as well as substantive and procedural law. However, a
lawyer is also guided by personal conscience and the approbation of
professional peers. A lawyer should strive to attain the highest
level of skill, to improve the law and the legal profession and to
exemplify the legal profession's ideals of public service.
[8] A lawyer's responsibilities as a
representative of clients, an officer of the legal system and a
public citizen are usually harmonious. Thus, when an opposing party
is well represented, a lawyer can be an 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 preserving client confidences
ordinarily serves the public interest because people are more
likely to seek legal advice, and thereby heed their legal
obligations, when they know their communications will be
private.
[9] In the nature of law practice,
however, conflicting responsibilities are encountered. Virtually
all difficult ethical problems arise from conflict between a
lawyer's responsibilities to clients, to the legal system and to
the lawyer's own interest in remaining an ethical person while
earning a satisfactory living. The Rules of Professional Conduct
often prescribe terms for resolving such conflicts. Within the
framework of these Rules, however, many difficult issues of
professional discretion can arise. Such issues must be resolved
through the exercise of sensitive professional and moral judgment
guided by the basic principles underlying the Rules. These
principles include the lawyer's obligation to protect and pursue a
client's legitimate interests, within the bounds of the law, while
acting honorably and maintaining a professional, courteous and
civil attitude toward all persons involved in the legal system.
[10] The legal profession is largely
self-governing. Although other professions also have been granted
powers of self-government, the legal profession is unique in this
respect because of the close relationship between the profession
and the processes of government and law enforcement. This
connection is manifested in the fact that ultimate authority over
the legal profession is vested largely in the courts.
[11] To the extent that lawyers meet the
obligations of their professional calling, the occasion for
government regulation is obviated. Self-regulation also helps
maintain the legal profession's independence from government
domination. An independent legal profession is an important force
in preserving government under law, for abuse of legal authority is
more readily challenged by a profession whose members are not
dependent on government for the right to practice.
[12] The legal profession's relative
autonomy carries with it special responsibilities of
self-government. The profession has a responsibility to assure that
its regulations are conceived in the public interest and not in
furtherance of parochial or self-interested concerns of the bar.
Every lawyer is responsible for observance of the Rules of
Professional Conduct. A lawyer should also aid in securing their
observance by other lawyers. Neglect of these responsibilities
compromises the independence of the profession and the public
interest which it serves.
[13] Lawyers play a vital role in the
preservation of society. The fulfillment of this role requires an
understanding by lawyers of their relationship to our legal system.
The Rules of Professional Conduct, when properly applied, serve to
define that relationship.
Scope
[14] The Rules of Professional Conduct
are rules of reason. They should be interpreted with reference to
the purposes of legal representation and of the law itself. Some of
the Rules are imperatives, cast in the terms "shall" or "shall
not." These define proper conduct for purposes of professional
discipline. Others, generally cast in the term "may," are
permissive and define areas under the Rules in which the lawyer has
discretion to exercise professional 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 professional role. Many
of the Comments use the term "should." Comments do not add
obligations to the Rules but provide guidance for practicing in
compliance with the Rules.
[15] The Rules presuppose a larger legal
context shaping the lawyer's role. That context includes court
rules and statutes relating to matters of licensure, laws defining
specific obligations of lawyers and substantive and procedural law
in general. The Comments are sometimes used to alert lawyers to
their responsibilities under such other law.
[16] Compliance with the Rules, as with
all law in an open society, depends primarily upon understanding
and voluntary compliance, secondarily upon reinforcement by peer
and public opinion and finally, when necessary, upon enforcement
through disciplinary proceedings. The Rules do not, however,
exhaust the moral and ethical considerations that should inform a
lawyer, for no worthwhile human activity can be completely defined
by legal rules. The Rules simply provide a framework for the
ethical practice of law.
[17] Furthermore, for purposes of
determining the lawyer's authority and responsibility, principles
of substantive law external to these Rules determine whether a
client-lawyer relationship exists. Most of the duties flowing from
the client-lawyer relationship attach only after the client has
requested the lawyer to render legal services and the lawyer has
agreed to do so. But there are some duties, such as that of
confidentiality under ER 1.6, that attach when the lawyer agrees to
consider whether a client-lawyer relationship shall be established.
See ER 1.18. Whether a client-lawyer relationship exists for any
specific purpose can depend on the circumstances and may be a
question of fact.
[18] Under various legal provisions,
including constitutional, statutory and common law, the
responsibilities of government lawyers may include authority
concerning legal matters that ordinarily reposes in the client in
private client-lawyer relationships. For example, a lawyer for a
government agency may have authority on behalf of the government to
decide upon settlement or whether to appeal from an adverse
judgment. Such authority in various respects is generally vested in
the attorney general and the state's attorney in state government,
and their federal counterparts, and the same may be true of other
government law officers. 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 no abrogate any such
authority.
[19] Failure to comply with an
obligation or prohibition imposed by a Rule is a basis for invoking
the disciplinary process. The Rules presuppose that disciplinary
assessment of a lawyer's conduct will be made on the basis of the
facts and circumstances as they existed at the time of the conduct
in question and in recognition of the fact that a lawyer often has
to act upon uncertain or incomplete evidence of the situation.
Moreover, the Rules presuppose that whether or not discipline
should be imposed for a violation, and the severity of a sanction,
depend on all the circumstances, such as the willfulness and
seriousness of the violation, extenuating factors and whether there
have been previous violations.
[20] Violation of a Rule should not
itself give rise to a cause of action against a lawyer nor should
it create any presumption in such a case 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
provide guidance to lawyers and to provide a structure for
regulating conduct through disciplinary agencies. They are not
designed to be a basis for civil liability. Furthermore, the
purpose of the Rules can be subverted 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 lawyer's violation of a Rule may be evidence of breach
of the applicable standard of conduct.
[21] The Comments accompanying each Rule
explain and illustrates the meaning and purpose of the Rule. The
Preamble and this note on Scope provide general orientation. The
Comments are intended as guides to interpretation, but the text of
each Rule is authoritative.