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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

II. COUNSELOR

2.1 Rule 2.1 Advisor

2.1:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 2.1
  • Background References: ABA Model Rule 2.1, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

2.1:101   Model Rule Comparison

There are no differences between ARPC Rule 2.1 and the model rule.

2.1:102   Model Code Comparison

ARPC Rule 2.1 provides that a lawyer give a client "candid advice" that is a product of "independent professional judgment." The lawyer should give his honest assessment even if that assessment is displeasing to the client.

2.1:200 Exercise of Independent Judgment

  • Primary Alabama References: AL Rule 2.1
  • Background References: ABA Model Rule 2.1, Other Jurisdictions
  • Commentary: ABA/BNA § 31:701, ALI-LGL § 94, Wolfram § 4.3
  • Alabama Commentary:

ARPC Rule 2.1 provides that a lawyer give a client "candid advice" that is a product of "independent professional judgment." The lawyer should give his honest assessment even if that assessment is displeasing to the client.

2.1:300 Non-Legal Factors in Giving Advice

  • Primary Alabama References: AL Rule 2.1
  • Background References: ABA Model Rule 2.1, Other Jurisdictions
  • Commentary: ABA/BNA § 31:701, ALI-LGL § 94, Wolfram § 4.3
  • Alabama Commentary:

ARPC Rule 2.1 provides that when rendering advice a lawyer may refer not only to the technical law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation. Ethics Opinion RO-92-17 points out that while "a lawyer in rendering advice may refer to other considerations such as moral and social considerations, there is nothing in the rules that requires the client to follow this advice." For example, a lawyer, not withstanding his contrary opinion, must abide by a client's decision to accept an offer of settlement. Id.

2.2 Rule 2.2 Intermediary

2.2:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 2.2
  • Background References: ABA Model Rule 2.2, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

Rule 2.2 was deleted from the Model Rules in February 2002. The Reporter's explanation of the change reads as follows:

The Commission recommends deleting Rule 2.2 and moving any discussion of common representation to the Rule 1.7 Comment. The Commission is convinced that neither the concept of “intermediation” (as distinct from either “representation” or “mediation”) nor the relationship between Rules 2.2 and 1.7 has been well understood. Prior to the adoption of the Model Rules, there was more resistance to the idea of lawyers helping multiple clients to resolve their differences through common representation; thus, the original idea behind Rule 2.2 was to permit common representation when the circumstances were such that the potential benefits for the clients outweighed the potential risks. Rule 2.2, however, contains some limitations not present in Rule 1.7; for example, a flat prohibition on a lawyer continuing to represent one client and not the other if intermediation fails, even if neither client objects. As a result, lawyers not wishing to be bound by such limitations may choose to consider the representation as falling under Rule 1.7 rather than 2.2, and there is nothing in the Rules themselves that clearly dictates a contrary result.

Rather than amending Rule 2.2, the Commission believes that the ideas expressed therein are better dealt with in the Comment to Rule 1.7. There is much in Rule 2.2 and its Comment that applies to all examples of common representation and ought to appear in Rule 1.7. Moreover, there is less resistance to common representation today than there was in 1983; thus, there is no longer any particular need to establish the propriety of common representation through a separate Rule.

2.2:101   Model Rule Comparison

There are no differences between ARPC 2.2 and the model rule.

2.2:102   Model Code Comparison

Inapplicable.

2.2:200 Relationship of Intermediation to Joint Representation

  • Primary Alabama References: AL Rule 2.2
  • Background References: ABA Model Rule 2.2, Other Jurisdictions
  • Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram §§ 8.7, 13.6
  • Alabama Commentary:

Essentially, a lawyer may act as an intermediary between clients as long as (1) the lawyer informs each client of the pros and cons of common representation and obtains each clients' consent, (2) the lawyer reasonably believes the matter in dispute can be resolved on terms compatible with each client's best interest and (3) the lawyer believes common representation can be undertaken impartially and with no effect on other duties regarding each client. Each client must make adequately informed decisions and a lawyer must immediately withdraw from an entire matter at either client's request.

2.2:300 Preconditions to Becoming an Intermediary

  • Primary Alabama References: AL Rule 2.2
  • Background References: ABA Model Rule 2.2, Other Jurisdictions
  • Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6
  • Alabama Commentary:

When considering whether to become an intermediary, a lawyer should consider common factors such as antagonism between the clients, the form of intermediation, whether the lawyer will subsequently represent both parties on a continuing basis, the duty of confidentiality, the impact on the attorney-client privilege, and the lawyer's past relationship with the various clients. ARPC Rule 1.8(k) precludes a lawyer from acting as an intermediary in a divorce or domestic relations proceeding or in matters involving custody of children, alimony or child support.

2.2:400 Communication During Intermediation

  • Primary Alabama References: AL Rule 2.2
  • Background References: ABA Model Rule 2.2, Other Jurisdictions
  • Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6
  • Alabama Commentary:

Because a lawyer owes a duty to each client, he has a duty to fully communicate with each client during the intermediation.

2.2:500 Consequences of a Failed Intermediation

  • Primary Alabama References: AL Rule 2.2
  • Background References: ABA Model Rule 2.2, Other Jurisdictions
  • Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6
  • Alabama Commentary:

2.3 Rule 2.3 Evaluation for Use by Third Persons

2.3:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 2.3
  • Background References: ABA Model Rule 2.3, Other Jurisdictions
  • Commentary:

2.3:101   Model Rule Comparison

There are no differences between ARPC Rule 2.3 and the model rule.

2.3:102   Model Code Comparison

Inapplicable.

2.3:200 Undertaking an Evaluation for a Client

  • Primary Alabama References: AL Rule 2.3
  • Background References: ABA Model Rule 2.3, Other Jurisdictions
  • Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4
  • Alabama Commentary:

A lawyer may undertake an evaluation of a matter effecting a client for the use of a third party when the lawyer reasonably believes that making the evaluation is within the scope of other aspects of the lawyer's relationship with the client and the client either directs the lawyer to provide information to a third party or consents after consultation to the lawyer providing such information. The lawyer should identify by whom he is retained and his client's relationship to the information being evaluated.

2.3:300 Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

  • Primary Alabama References: AL Rule 2.3
  • Background References: ABA Model Rule 2.3, Other Jurisdictions
  • Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4.4
  • Alabama Commentary:

When an evaluation is intended for the information or use of a third person, a legal duty to that third person is beyond the scope of ARPC Rule 2.3. If a client's financial auditor asks a question of the client's lawyer, the lawyer's response may be made in accordance with procedures recognized by the American Bar Association.

2.3:400 Confidentiality of an Evaluation

  • Primary Alabama References: AL Rule 2.3
  • Background References: ABA Model Rule 2.3, Other Jurisdictions
  • Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4.3
  • Alabama Commentary:

See Sections 2.3:200 and 2.3:300.

2.4 Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References:
  • Background References: ABA Model Rule 2.4, Other Jurisdictions
  • Commentary:

MR 2.4 was added in February 2002. The Reporter's explanation of the change reads as follows:

The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.

2.4:101   Model Rule Comparison

Alabama has not adopted the new model rule.

2.4:200 Definition of "Third-Party Neutral"

  • Primary Alabama References:
  • Background References: ABA Model Rule 2.4, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

Alabama has not adopted the new model rule.

2.4:300 Duty to Inform Parties of Nature of Lawyer's Role

  • Primary Alabama References:
  • Background References: ABA Model Rule 2.4, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

Alabama has not adopted the new model rule.