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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arkansas Legal Ethics

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of Arkansas Rule

2.1:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

2.1:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

2:1:200   Exercise of Independent Judgment

In its use of the imperative, the first sentence of AR Rule 2.1 sets forth the attorney's obligation to exercise professional judgment independent of pressures or influences. The rule also mandates that the attorney be candid in all advice to the client, such as in business matters or estate planning, as well as in strictly legal matters. The advice may be based on economic, political, spiritual, and ethical grounds. The client is free to reject the advice or the underlying rationale, but the attorney may bring those non-legal factors to the attention of the client.

2:1:300   Non-Legal Factors in Giving Advice

An attorney has an obligation to recognize when a wrong is not redressable in the courts and to advise a client accordingly. The best advice to the client may be to forget the wrong and to go on with life. See Witzsche v. Jaeger & Haines, Inc., 707 F. Supp. 407 (W.D. Ark. 1989).

See Bob Compton, Rules of the Road, ARKANSAS LAWYER (Winter 1995) 22, 24: "How many of us have recently discussed the morality of a client's anticipated act, the dire economic effects on his or her employees, partners or associates, the probable effect in the community or other non-legal factors that may be relevant to the client's situation? How many times have we recently told a client that 'you just can't do that'?" For a discussion of moral counseling in the law office, with the lawyer serving as a friend and promoting the primary values of justice, truth and mercy, see Jack L. Sammons, Rank Strangers to Me: Shaffer and Cochran's Friendship Model of Moral Counseling in the Law Office, 18 U. ARK. LITTLE ROCK L.J. 1 (1995).

Act 641 of 1993, codified as Ar. Code 16-7-201 et seq., is intended to encourage the use of alternative dispute resolution processes and to decrease the frequency with which disputes are taken to formal judicial proceedings. Section 204 encourages attorneys to advise clients about resolution options available and to "assist them in the selection of the technique or procedure, including litigation, deemed appropriate for dealing with the client's dispute, case or controversy." To encourage settlement, courts are authorized to issue, upon motion of all the parties, orders of reference to appropriate dispute resolution processes. Section 206 gives confidentiality to communications made by participants in the dispute resolution process, and Section 207 grants limited immunity to impartial third parties participating. See Charles L. Schlumberger, Alternative Dispute Resolution and Acts 287 and 641 of 1993: A Small Step or a Giant Leap?, ARKANSAS LAWYER (Winter 1994) 8.

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of Arkansas Rule

2.2:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

2.2:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

2.2:200   Relationship of Intermediation to Joint Representation

The intermediation envisioned by this Rule is not the role played by an attorney acting as arbitrator or mediator between parties who are not clients of the lawyer. Rather, it applies when the attorney undertakes common representation of actual clients. The Rule demands that confidentiality be maintained, but that both parties be kept informed. Given this delicate balance, along with the possibility of mandatory withdrawal and the resulting additional costs, the prudent lawyer should consider intermediation only where the likelihood of contention is remote.

One example favoring intermediation might be the desire by the various interested parties associated with a deceased to expedite and finalize the distribution of property in the settlement of an estate. Where the property is of such a nature as to be readily apportioned, where the parties have reached full agreement and use the lawyer merely as scrivener or where the jurisdiction permits written agreements by the beneficiaries to distribute the estate contrary to the will, the use of intermediation under Rule 2.1 may be of substantial benefit to the parties as to time, cost and purpose. At the same time, the lawyer must keep in mind the adverse consequences of future representation of any one of the parties in relationship to Rule 1.9, and the impact on the attorney-client privilege.

Similarly, educational, religious or professional accreditation institutions may seek formation of a national organization to facilitate services and coordinate standards. Despite the presence of diverse goals and the potential for disagreement, the use of an intermediary and the increased client participation contemplated by Rule 2.2(b) may foster a solidarity of purpose which is essential where such organizations often contemplate the adoption of articles of faith. Conversely, the presence of numerous advocates, each arguing his client-institution's aspirations, might serve to prevent formation on a national level at all.

Other examples of the use of intermediaries can be seen in the drafting of articles of incorporation, the finalization of a sale of real property between grantor and grantee, the resolution of landlord-tenant or retailer-consumer disputes, or the mediation between spouses seeking to draft a separation agreement. Yet, these fact patterns are so often only a step away from contentious litigation or negotiation that the propriety of intermediation may be questionable.

2.2:300   Preconditions to Becoming an Intermediary

See 2.2:200.

2.2:400   Communication During Intermediation

The attorney-client privilege does not extend to "a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients. . . ." Ark. R. Evid. 502 (d)(5). See 1.6:480.

2.2:500   Consequences of a Failed Intermediation

Arkansas has no case law or authority on this topic.

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of Arkansas Rule

2.3:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

2.3:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

2.3:200   Undertaking an Evaluation for a Client

The opinion or evaluation may be requested by the client or by the third party, or may be required by law. If the third party requests the evaluation, the client must consent. AR Rule 2.3(a) requires the attorney to make an objective determination that the evaluation is compatible with other aspects of the attorney-client relationship.

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

Third party legal opinions, which are common in business transactions such as loans, mergers and acquisitions, and securities offerings, are addressed by the lawyer to a person who is not the client and are intended to give an opinion on the transaction. The Business Law Section of the American Bar Association has adopted voluntary guidelines for such opinions, regardless of the format or the nature of the opinion. The Report and the Accord are analyzed in John S. Selig & Christopher Barrier, Third-Party Legal Opinions: Has Some Order Come Out of the Chaos?, ARKANSAS LAWYER (October 1992) 36; W. Christopher Barrier & John S. Selig, Third-Party Legal Opinions: Has Some Order Come Out of the Chaos?, ARKANSAS LAWYER (Summer 1993) 40.

Significant considerations involve the lawyer's responsibilities under AR Rules 1.2, 1.6 and 4.1. As this situation may involve greater client control over the facts disclosed in the evaluation, the lawyer must be extraordinarily careful in determining whether conscious or subconscious limitations created by the client violate the lawyer's responsibilities to the third party under AR Rule 4.1. For example, an attorney who prepares opinion letters for securities regulation and tax shelters necessarily understands that such letters will be released to the government and the public and relied upon by prospective investors. Accordingly, a responsible and cautious lawyer will ascertain all relevant facts, discuss all legal issues, exercise independent legal judgment and emphasize any restrictions on his review or evaluation. See American Bar Association Formal Opinion 82-346.

2.3:400   Confidentiality of an Evaluation

Arkansas has no case law or authority on this topic.

2.4   Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100   Comparative Analysis of Arkansas Rule

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

Arkansas has not adopted the new model rule.

2.4:200   Definition of "Third-Party Neutral"

Arkansas has not adopted the new model rule.

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

Arkansas has not adopted the new model rule.