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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


ABA Model Rules of Professional Conduct
(pre-2002)

History

History - Rule 1.1

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 1.2

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 1.3

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 1.4

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 1.5

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 1.6

Rejection of Kutak Commission proposal.

The most significant departure from the Kutak Commission's Revised Final Draft of June 30, 1982, was an amendment that eliminated several exceptions to the lawyer's professional duty of confidentiality. The Kutak proposed rule read as follows:

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another;

(2) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services had been used;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved; or

(4) to comply with other law

[The italicized portions were deleted by the ABA House of Delegates and the remaining language modified somewhat.]

State amendment.

In the adoption of the Model Rules, Rule 1.6 has been amended by adopting jurisdictions in significant respects. The most typical course has been to expand the exceptions to confidentiality, sometimes by returning to language similar or identical to that proposed by the Kutak Commission. A tabular presentation of state-by-state ethics rules on confidentiality, created and updated by ALAS, provides more detailed information concerning the exceptions to confidentiality in all 51 jurisdictions.

ABA rejection of proposed client fraud amendment.

In 1991 the ABA House of Delegates rejected a proposal from its ethics committee to amend Rule 1.6(b) to add the rectification language found in subsection (b)(2) of the Kutak Commission 1982 draft.

History - Rule 1.7

The text of the rule has not been amended, but a sentence was added to Comment [1] in February 1987. The sentence favors adoption of reasonable conflicts-checking procedures.

History - Rule 1.8

The text of Rule 1.8(b) was amended in February 1987 by making it explicit that the exceptions to confidentiality contained in Rules 1.6 and 3.3 also govern a lawyer's use of confidential client information.

History - Rule 1.9

The text of then Rule 1.9(b), now Rule 1.9(c), was amended in February 1987 by making it clear that the exceptions to confidentiality contained in Rules 1.6 and 3.3 also apply to a lawyer's use of a former client's confidential information.

The text of Rule 1.9 and its Comments were amended in February 1989. A new paragraph 1.9(b), regarding clients of a lawyer's former firm [taken from Rule 1.10(b) as originally adopted], was added; the renumbered paragraph 1.9(c) was broadened to include former representation of a client by a lawyer's present or former firm, rather than by a lawyer individually; and subparagraph 1.9(c)(2), covering revelation of information, as opposed to its use, of information was added. Comments relating to the material moved from Rule 1.10 were also moved to Rule 1.9.

For a state-by-state tabulation of ethics rules governing the imputed disqualification of a firm when a personally disqualified lawyer has joined the firm can be cured by screening, see the ALAS analysis of Imputed Disqualification of Lawyers: State by State Analysis.

History - Rule 1.10

In February 1989 Rule 1.10 was amended in several respects. Original paragraph 1.10(b), regarding clients of a lawyer's former firm, was moved to Rule 1.9; original paragraphs (c) and (d) were renumbered as paragraphs (b) and (c); and the phrase "and not currently represented by the firm" was added before subparagraphs (b)(1) and (2). The original Rule 1.10 comment dealing with representation adverse to a former client when a lawyer moves between firms was also moved to Rule 1.9.

For a state-by-state tabulation of ethics rules governing the imputed disqualification of a firm when a personally disqualified lawyer has joined the firm can be cured by screening, see the ALAS analysis of Imputed Disqualification of Lawyers: State by State Analysis.

History - Rule 1.11

Rule 1.11(c)(2) was amended in February by adding an exception permitting judicial clerks to negotiate for private employment in accordance with Rule 1.12(b).

History - Rule 1.12

Rule 1.12(a) was amended in February 1987 by changing the requirement of consent after disclosure to one of consent after consultation.

History - Rule 1.13

Model Rule 1.13 was one of the rules that was substantially amended by the House of Delegates when the Rules were adopted by the ABA in August 1993. The major change was to paragraph (c) which, in the form recommended by the Kutak Commission, permitted the organizationŽs lawyer to take remedial steps outside the client organization: "when the organizationŽs highest authority [refuses to take corrective action for a law violation], the lawyer may take further remedial action that the lawyer reasonably believes to be in the best interest of the organization," including disclosure of confidential information otherwise protected by Rule 1.6. The full text of Rule 1.13 as proposed by the Kutak Commission (Revised Final Draft, June 30, 1982) is reproduced below.

Rule 1.13 Organization as the Client

(a) A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other 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 obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyerŽs representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:

(1) asking reconsideration of the matter;

(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and

(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.

(c) When the organizationŽs highest authority insists upon action, or refuses to take action, that is clearly a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer may take further remedial action that the lawyer reasonably believes to be in the best interest of the organization. Such action may include revealing information otherwise protected by Rule 1.6 only if the lawyer reasonably believes that:

(1) the highest authority in the organization has acted to further the personal or financial interests of members of that authority which are in conflict with the interest of the organization; and

(2) revealing the information is necessary in the best interest of the organization.

(d) In dealing with an organizationŽs directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer believes that such explanation is necessary to avoid misunderstandings on their part.

(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organizationŽs consent to the dual representation 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.

History - Rule 1.14

The Comments to Rule 1.14 were amended in February 1997 by adding new paragraphs [6] and [7] dealing with emergency legal assistance.

History - Rule 1.15

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 1.16

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 1.17

Rule 1.17 and its Comment were added to the Model Rules in February 1990. A rule governing sale of a law practice had not been included in the Model Rules prior to that time.

History - Rule 2.1

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 2.2

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 2.3

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 3.1

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 3.2

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 3.3

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 3.4

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 3.5

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 3.6

In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), a majority of five justices held that the "safe harbor" provisions of a state ethics rule substantially identical to Rule 3.6 were "void for vagueness." In August 1994 Rule 3.6 was amended in an effort to comply with this decision. The amendment (1) modified paragraph 3.6(a) to apply only to a lawyer who is participating in or has participated in the investigation or litigation of a matter; (2) the list of statements ordinarily likely to have a prejudicial effect, originally contained in paragraph 3.6(b), was moved to the Comment section of the rule; (3) the list of ordinarily acceptable statements, originally contained in paragraph 3.6(c), was moved to paragraph 3.6(b), with changes that eliminated the terms "without elaboration" and "general nature;" (4) a new paragraph 3.6(c) provided for a lawyer's limited right of response to protect a client from substantial and undue prejudicial effect of recent publicity not initiated by the lawyer or the client; and (5) a new paragraph 3.6(d) was added, making the Rule applicable to other lawyers in the lawyer's firm or government agency.

History - Rule 3.7

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 3.8

Rule 3.8, dealing with the special responsibilities of prosecutors, has been amended three times, more than any other rule. (1) The initial amendment in February 1990 added a subparagraph 3.8(f)(2), and accompanying Comment, which required a prosecutor to obtain "prior judicial approval after an opportunity for an adversarial proceeding," before a prosecutor could subpoena a lawyer, in a grand jury or other criminal proceeding, to present evidence about a past or future client. This amendment, which was adopted by only a handful of jurisdictions, was strongly opposed by the U.S. Department of Justice and state prosecutors as an interference with grand jury and other criminal proceedings. (2) The second amendment, added in August 1994, added a new paragraph, 3.8(g), prohibiting prosecutors from making statements likely to heighten public condemnation of an accused, except under limited circumstances. (3) The third amendment in August 1995 repealed the first, deleting paragraph 3.8(f)(2) from the text and Comment.

History - Rule 3.9

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 4.1

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 4.2

Rule 4.2 was amended in August 1995 to make clear that the rule applies to contacts with represented persons whether or not they are, in a formal sense, actual or prospective "parties" to a proceeding or transaction. "Person" was substituted for "party" in the title and text of the rule. In addition, the Comment was also amended in important respects: (1) to acknowledge the case law limiting the application of anti-contact prohibitions in the context of pre-indictment, non-custodial law enforcement activity; and (2) to make clear that a lawyer may not evade the rule by avoiding actual knowledge that a person is represented by counsel.

History - Rule 4.3

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 4.4

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 5.1

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 5.2

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 5.3

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 5.4

Kutak Commission proposal.

The Kutak Commission's version of Rule 5.4 was substantially different from that adopted by the ABA House of Delegates. The Kutak proposal did not prohibit a nonlawyer from owning or exercising managerial authority in a law firm provided "services can be rendered in conformity with the Rules of Professional Conduct." The proposal went on to spell out that a nonlawyer owner or manager could not "interfere with the lawyer's independence of professional judgment or with the client-lawyer relationship;" disclose information protected by Rule 1.6; or involve arrangements that constitute prohibited advertising or solicitation of clients (Rules 7.2 and 7.3) or result in illegal fees (Rule 1.5). When the Kutak proposal reached the House of Delegates, and it was conceded it would permit retail chains to own and operate legal services offices in their stores, a substitute proposed by the ABA's General Practice Section was adopted. Rule 5.4 was the only rule that was completely rewritten.

Amendment.

Rule 5.4(a)(2) was substantially changed in February 1990 to reflect the addition of Rule 1.17, dealing with sale of a law practice.

History - Rule 5.5

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 5.6

Comment [3] to Rule 5.6(b) was added in February 1990 to make it clear that restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17, which was adopted at the same time, are governed by that rule, not Rule 5.6(b).

History - Rule 5.7

In general.

Rule 5.7 has an unusual history. None of the Kutak Commission drafts had a provision equivalent to Rule 5.7. A rule on the subject was first adopted by the ABA House of Delegates in August 1991 by a closely divided vote (197-186). That rule, proposed by the ABA Section of Litigation, was a substitute for a rule proposed by the ABA's Standing Committee on Ethics and Professional Responsibility. The text of the 1991 rule is reproduced below {or may be viewed by clicking here}. At the ABA annual meeting in August 1992, a number of ABA sections and bar groups urged deletion of the 1991 rule. The House of Delegates voted to delete the rule by another narrow vote (190-183). With the issue so closely divided, a Special Committee on Ancillary Business Services was created to review the work done by various committees and sections and make a appropriate recommendation. The proposal developed by the Special Committee was considered and adopted by the ABA in February 1994 as current Rule 5.7. The Rule was accompanied by an extensive Comment.

Text of the 1991 rule.

Rule 5.7, as adopted in 1992 and repealed in 1993, read as follows:

Rule 5.7 Provision of Ancillary Services

(a) A lawyer shall not practice law in a law firm which owns a controlling interest in, or operates, an entity which provides non-legal services which are ancillary to the practice of law, or otherwise provides such ancillary non-legal services, except as provided in paragraph (b).

(b) A lawyer may practice law in a law firm which provides non-legal services which are ancillary to the practice of law if:

(1) The ancillary services are provided solely to clients of the law firm and are incidental to, in connection with and concurrent to, the provision of legal services by the law firm to such clients;

(2) Such ancillary services are provided solely by employees of the law firm itself and not by a subsidiary or other affiliate of the law firm;

(3) The law firm makes appropriate disclosure in writing to its clients; and

(4) The law firm does not hold itself out as engaging in any non-legal activities except in conjunction with the provision of legal services, as provided in this rule.

(c) One or more lawyers who engage in the practice of law in a law firm shall neither own a controlling interest in, nor operate, an entity which provides non-legal services which are ancillary to the practice of law, nor otherwise provide such ancillary non-legal services, except that their firms may provide such services as provided in paragraph (b).

(d) Two or more lawyers who engage in the practice of law in separate law firms shall neither own a controlling interest in, nor operate, an entity which provides non-legal services which are ancillary to the practice of law, nor otherwise provide such ancillary non-legal services.

History - Rule 6.1

Rule 6.1 was amended in February 1993 to encourage lawyers to contribute their services to meet the unmet need of poor persons for legal assistance. The amendment added the word "voluntary" to the title of the rule; and rewrote the rule to include an aspirational goal of at least 50 hours of legal services per year without fee or expectation of fee to persons of limited means or groups that "address the needs of persons of limited means." The Comment was largely rewritten at the same time. The version of the rule in effect from 1983-1993, and adopted by most states, provided as follows:

A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

History - Rule 6.2

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 6.3

Rule 6.3(a) was amended in February 1987 to add "or action" after "the decision," in order to parallel "decision or action" in the introductory portion of the rule.

History - Rule 6.4

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 7.1

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 7.2

Rule 7.2 has been amended twice.

(1) In February 1989, Rule 7.2(a) was amended by substituting ". . . except as prohibited by Rule 7.3(b)" for ". . . not involving solicitation as defined in Rule 7.3," in order to reflect the contemporaneous amendment of Rule 7.3.

(2) In February 1990, Rule 7.2(c)(3) was added to reflect the adoption at the same time of new Rule 1.17, dealing with the sale of a law practice.

History - Rule 7.3

Shapero v. Kentucky State Bar, 486 U.S. 466 (1988), struck down a Kentucky rule identical to the original version of Rule 7.3. The Court held that the rule's prohibition of personalized direct mail to persons "known to need legal services of the kind provided by the lawyer in the particular matter" violated the commercial speech limitations of the First Amendment. In February 1989, Rule 7.3 was substantially amended to conform to the Shapero case. The 1989 amendments changed "may not" to "shall not" for consistency with other rules; amended paragraph 7.3(a) and the Comment throughout to permit direct mail solicitation of prospective clients; added paragraph 7.3(b), prohibiting any kind of solicitation when a prospective client has made known a contrary desire; added paragraph 7.3(c), a requirement that personalized direct mail solicitations include the words "Advertising Material;" and added paragraph 7.3(d), allowing a lawyer to participate in prepaid legal organizations that solicit.

History - Rule 7.4

Rule 7.4 was amended in August 1992 to bring the rule in compliance with Peel v. Attorney Registration and Disciplinary Comm'n, 496 U.S. 91 (1990), holding that states may not constitutionally impose a blanket prohibition on a lawyer's truthful communication that the lawyer is certified as a specialist by a bona fide organization.

Rule 7.4 was amended again in August 1994 to add a single sentence to the rule and a comparable sentence to Comment [5]. The new sentence makes it unnecessary for lawyers in states without certification procedures to make the otherwise required disclaimer if the lawyer is certified by an organized accredited by the ABA Standing Committee on Specialization, which began certifying organizations in 1993.

History - Rule 7.5

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 7.6

The black-letter text and explanatory comments of this rule were adopted on February 14, 2000 by the American Bar Association House of Delegates, Dallas, Texas.

History - Rule 8.1

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 8.2

The black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

History - Rule 8.3

Rule 8.3(c) was amended in February 1991. The amendment added language exempting information gained while serving on a lawyer assistance program from the duty to report, to the extent such information would be confidential if communicated by a client. Comment [5] was added to explain paragraph 8.3(c).

History - Rule 8.4

With the one exception noted below the black-letter text and explanatory comments of this rule have been unchanged since August 2, 1983, when the American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities.

In August 1998 the House of Delegates added a new Comment [2] to Rule 8.4 and renumbered the existing Comments that followed. The Comment states that discriminatory conduct in the course of representing a client violates Rule 8.4(d) (conduct prejudicial to the administration of justice) "when such actions are prejudicial to the administration of justice. The conduct must be "bias or prejudice" on the grounds mentioned (e.g., race, sex) "knowingly manifested by words or conduct." "Legitimate advocacy respecting the foregoing factors" is excepted; as is the use of peremptory challenges on a discriminatory basis.

History - Rule 8.5

Rule 8.5, which originally dealt only with disciplinary jurisdiction, was amended in August 1993 to add a detailed choice of law provision. New paragraph 8.5(b) resolve conflicts of law that arise when a lawyer is licensed or admitted to practice in jurisdiction with differing ethics rules. The title of the rule was change from "Jurisdiction" to "Disciplinary Authority; Choice of Law." Comments [2] - [6] were added to explain the choice of law provisions.