Code of professional conduct personal client relationship model

Supreme Judicial Court Rule Rules of Professional Conduct |

code of professional conduct personal client relationship model

It applies in addition to any other rule of professional conduct related to the and has reasonable grounds to believe that a lawyer-client relationship exists; .. A lawyer must not personally act in a dispute if he knows or should know that he. Professional Coaching Relationship: A professional coaching relationship exists Conflict of Interest: A situation in which a coach has a private or personal that the Code of Ethics applies to my relationship with coaching clients, coachees. the Texas Disciplinary Rules of Professional Conduct or other law. 4. clients and in the lawyer's business and personal affairs. A lawyer should . to these rules determine whether a client-lawyer relationship may be found to exist. But there.

For conflicts of interest involving prospective clients, see Rule 1. For definitions of "informed consent" and "confirmed in writing," see Rule 1. The clients affected under paragraph a include both of the clients referred to in paragraph a 1 and the one or more clients whose representation might be materially limited under paragraph a 2.

1.7 Conflict-of-Interest: Current Clients

To determine 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 non-litigation matters the persons and issues involved. See also Comment to Rule 5. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.

See also Comments [5] and [29].

code of professional conduct personal client relationship model

Depending on the circumstances, the lawyer may have the option to withdraw 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. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. Identifying Conflicts of Interest: Thus, absent a determination by the lawyer that the conflict is consentable and the grant of consent by the client, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.

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 involving another client, as when the testimony will be damaging to 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 representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict-of-interest and thus may not require consent of the respective clients. 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 representation without determining that the conflict may be waived by consent and the grant of informed consent by each client.

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 consent. 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 also Rule 1. 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. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. However, the lack of a categorical prohibition should not be construed as an implicit approval of such relationships.

Attorneys have been disciplined under the former Maine Code of Professional Responsibility for entering into sexual relations with clients, and they may be disciplined for similar conduct under these rules.

The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. 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 protected by privilege only when they are imparted in the context of the client-lawyer relationship.

Prohibited Representations [14] In many instances, clients may consent to representation notwithstanding a conflict. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client.

Thus, under paragraph b 1representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client.

In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict-of-interest. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Informed Consent [18] 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.

Whether a client has given informed consent to representation, when required by this Rule or Rule 1. The lawyer must reasonably believe that each client will be able to make adequately informed decisions during the representation and, to that end, the lawyer must consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions. 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 privilege and the advantages and risks involved.

See Comments [30] and [31] effect of common representation on confidentiality. 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 decision, 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. Consent Confirmed in Writing [20] Paragraph b requires the lawyer to obtain the informed consent of the client, confirmed 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.

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. 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. Consent to Future Conflict [22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph 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 representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, 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.

In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph b 1 or paragraph c. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph a 2 and paragraph b.

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 paragraph b are met.

Factors relevant in determining whether the clients need to be advised of the risk include: If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.

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Under Maine law and practice, this Rule is violated only if an attorney does not obtain informed consent to an issue conflict that rises to the level of a conflict-of-interest described in Rule 1. A lawyer does not violate this Rule merely by being ignorant of the existence of an issue conflict. There are situations where, because of the risk of material limitation of a client representation, that an issue conflict can be a true albeit consentable conflict-of-interest.

The intent of this Rule and this paragraph is not to create a conflict-of-interest-screening requirement that has not heretofore existed in Maine. 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 [26] Conflicts-of-interest under paragraphs a 1 and a 2 arise in contexts other than litigation. For a discussion of directly adverse conflicts in transactional matters, see Comment [7]. The question is often one of proximity and degree. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, 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. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible 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 settlement of an estate.

Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication 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 [29] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment 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 impossible. For example, a lawyer cannot undertake common representation of clients where contentious litigation or negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained.

Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.

With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. The lawyer should also be aware that provincial or territorial legislation may provide additional language rights, including in relation to aboriginal languages. Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, SCC Under section of the Criminal Code, R.

C an accused has the right to a criminal trial in either English or French. While the organization or corporation acts and gives instructions through its officers, directors, employees, members, agents or representatives, the lawyer should ensure that it is the interests of the organization that are served and protected.

For example, a lawyer may advise an officer of an organization about liability insurance. In such cases the lawyer acting for an organization should be alert to the prospects of conflicts of interests and should comply with the rules about the avoidance of conflicts of interests section 3.

Encouraging compromise or settlement 3. Threatening criminal or regulatory proceedings 3. Even if a client has a legitimate entitlement to be paid monies, threats to take criminal or quasi-criminal action are not appropriate. Inducement for withdrawal of criminal or regulatory proceedings 3. However, this rule does not prevent a lawyer for an accused or potential accused from communicating with a complainant or potential complainant to obtain factual information, arrange for restitution or an apology from an accused, or defend or settle any civil matters between the accused and the complainant.

When a proposed resolution involves valuable consideration being exchanged in return for influencing the Crown or regulatory authority not to proceed with a charge or to seek a reduced sentence or penalty, the lawyer for the accused must obtain the consent of the Crown or regulatory authority prior to discussing such proposal with the complainant or potential complainant.

Similarly, lawyers advising a complainant or potential complainant with respect to any such negotiations can do so only with the consent of the Crown or regulatory authority. If the complainant or potential complainant is vulnerable, the lawyer should take care not to take unfair or improper advantage of the circumstances. When communicating with an unrepresented complainant or potential complainant, it is prudent to have a witness present.

Dishonesty, fraud by client 3.

code of professional conduct personal client relationship model

Vigilance is required because the means for these, and other criminal activities, may be transactions for which lawyers commonly provide services such as: These should include making reasonable attempts to verify the legal or beneficial ownership of property and business entities and who has the control of business entities, and to clarify the nature and purpose of a complex or unusual transaction where the nature and purpose are not clear.

In all situations, the lawyer should ensure that the client appreciates the consequences of bringing a test case. Annotations Dishonesty, fraud when client an organization 3. In particular, the misconduct of publicly traded commercial and financial corporations may have serious consequences for the public at large.

This rule addresses some of the professional responsibilities of a lawyer acting for an organization, including a corporation, when he or she learns that the organization has acted, is acting, or proposes to act in a way that is dishonest, criminal or fraudulent.

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In addition to these rules, the lawyer may need to consider, for example, the rules and commentary about confidentiality section 3. Indeed, often it is the omissions of an organization, such as failing to make required disclosure or to correct inaccurate disclosures that constitute the wrongful conduct to which these rules relate.

Conduct likely to result in substantial harm to the organization, as opposed to genuinely trivial misconduct by an organization, invokes these rules. In some but not all cases, withdrawal means resigning from his or her position or relationship with the organization and not simply withdrawing from acting in the particular matter.

Rules of Professional Conduct

Lawyers acting for organizations are often in a position to advise the executive officers of the organization, not only about the technicalities of the law, but also about the public relations and public policy concerns that motivated the government or regulator to enact the law.

Clients with diminished capacity 3. A client may be mentally capable of making some decisions but not others. The key is whether the client has the ability to understand the information relative to the decision that has to be made and is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision.

Accordingly, when a client is, or comes to be, under a disability that impairs his or her ability to make decisions, the lawyer will have to assess whether the impairment is minor or whether it prevents the client from giving instructions or entering into binding legal relationships. However, if a lawyer reasonably believes that the person has no other agent or representative and a failure to act could result in imminent and irreparable harm, the lawyer may take action on behalf of the person lacking capacity only to the extent necessary to protect the person until a legal representative can be appointed.

A lawyer undertaking to so act has the same duties under these rules to the person lacking capacity as the lawyer would with any client. Whether that should be done depends on all relevant circumstances, including the importance and urgency of any matter requiring instruction. So long as there is no lack of good faith or authority, the judgment of the legal representative should prevail. This may require reporting the misconduct to a person or institution such as a family member or the Public Trustee.

See Commentary under rule 3.

Chapter 3 – Relationship to Clients | The Law Society of British Columbia

Annotations Restricting future representation 3. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.

A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter. The issue may be heightened if a lawyer in the association represents a client on the other side of a dispute with the client of another lawyer in the association.