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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Connecticut Legal Ethics

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 2.1
‰ Background References: ABA Model Rule 2.1, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

2.1:101      Model Rule Comparison

The Connecticut Rule is identical to the Model Rule.

2.1:102      Model Code Comparison

There is no direct counterpart to Connecticut Rule 2.1 in the Model Code. However, the title to Canon 5 and EC 7-8 together seemingly established the foundation for Rule 2.1. The title of Canon 5 stated, "[a] lawyer should exercise independent professional judgment on behalf of a client." Rule 2.1 makes this assertion mandatory. EC 7-8, which is in effect the forerunner of the second sentence of Rule 2.1, stated "[a]dvice of a lawyer to his client need not be confined to purely legal considerations . . . . In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible."

2.1:200   Exercise of Independent Judgment

‰ Primary Connecticut References: CT Rule 2.1
‰ Background References: ABA Model Rule 2.1, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

Informal Opinion 90-18 (1990), addressed the issue of whether a nonprofit legal organization may advise an individual on how to proceed in a divorce hearing pro se, even when they may be unable to fully protect their own interests in the proceedings. In advising that the guidance may be appropriate, the Committee reasoned that, "generally a client is entitled to straightforward advice expressing the lawyer's honest assessment." The Committee further stated that a lawyer can and should aid conscientious decision-making by bringing both legal and non-legal considerations into focus for the client. Consequently, the Committee advised that there are no provisions within the Rules restricting an attorney's ability to offer a pro se advice or reject the individuals altogether, "as long as the client is fully and completely advised of the perils accompanying the pro se procedure."

In Informal Opinion 90-18 (1990), the Committee dealt with the issue of whether a marketing plan designed to induce former clients to refinance their home mortgages with a particular mortgage company violates Connecticut's Rules of Professional Conduct. After reviewing the specific facts of the plan, the Committee advised that, "the communication proposed by the requester may be construed as advice from [his or her] attorney. Although it is not the attorney's intention to advise the client through this [advertisement], the fact that the attorney has formerly represented the client in a mortgage closing . . . would justify the client's [reliance]." Consequently, the Committee advised that, since "the communication is not independent professional judgment or candid advice," it would violate Rule 2.1.

2.1:300   Non-Legal Factors in Giving Advice

‰ Primary Connecticut References: CT Rule 2.1
‰ Background References: ABA Model Rule 2.1, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In the case of Henry v. Henry, No. 531717, 1994 WL 597378 (Conn.Super. Oct. 25, 1994), the court held that when counsel formally represented the adverse party in a matrimonial proceeding, a motion to disqualify should generally be granted. See id. at *4. In Henry, the plaintiff's wife moved to disqualify defendant husband's law firm because an attorney in the firm had represented the plaintiff in previous matrimonial proceeding with her first husband. See id. at *1. In granting the disqualification, the court reasoned that information concerning a client's lifestyle, relationship with her children, her finances, assets, income and expenses and insights into her conduct and behavior is typically imparted and discussed in the context of an attorney-client relationship. See id. at *3. The Court further stated that, much of this information is sensitive and intensely personal and is ordinarily entrusted to counsel by the client in confidence. Therefore, despite the lapse of eight years, the court held that it would be unlikely for defendant's counsel to be able to exercise independent professional judgment and render candid advice in the present proceeding in accordance with 2.1 and 3.1 of the Rules of Professional Conduct. See id.

In an amendment to Formal Opinion 28 (2000), the Committee commented that the prohibition against practicing both as an attorney and as an accountant was outdated. Therefore, the Committee recommended its overrule. However, the Committee also noted that if a person is going to practice both professions, Rules 2.1 and 1.8(a) must be followed.

Formal Opinion 49 (2000), commented on how to reconcile the duty of a lawyer to keep communications with his client confidential if he or she believes that their client is going to commit suicide. The Committee stated that it felt it was important that, if circumstances permit, the lawyer consult with the client and ask for the client's consent to reveal their condition. Additionally, the Committee recommended that, in the process and in compliance with Rule 2.1, the lawyer may wish to recommend that the client consult with a mental health professional.

Non-Legal Advice

Informal Opinion 89-10 (1989), addressed the role of lawyers as investment advisors to their own clients. The Committee first noted that Rule 2.1 expressly provides that in rendering advice, "a lawyer may refer not only to law but to other considerations . . . ." Furthermore, the Committee reasoned that "[s]ome degree of investment advice may be necessary to the adequate representation of the client in many situations." Therefore, it advised that "an absolute bar to the rendering of investment advice to clients is not recommended."

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 2.2
‰ Background References: ABA Model Rule 2.2, Other Jurisdictions
‰ Commentary:
‰ Connecticut 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 Rule 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

Paragraphs (a)-(c) of Connecticut Rule 2.2 are identical the corresponding Model Rule 2.2 (a)-(c).

2.2:102      Model Code Comparison

There was no direct counterpart to this Rule in the Model Code. However, EC 5-14 thru 5-16 dealt with the problems associated with representing two clients with differing interests, and what obligations a lawyer has if she chooses to do so. Furthermore, DR 5-105(B) and (C) dealt with the general topic of multiple representations, but in less detail. Lastly, EC 5-20 held that a "lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such present or former relationships."

2.2:200   Relationship of Intermediation to Joint Representation

‰ Primary Connecticut References: CT Rule 2.2
‰ Background References: ABA Model Rule 2.2, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

Informal Opinion 96-8 (1996), commented on whether a lawyer may act as intermediary between two potentially conflicting clients, who were also once former clients. In this specific circumstance, the two potential clients were the lawyerΑs stepdaughter and her ex-husband. The lawyer previously had done a will for both of the parties. Under the lawyer's proposed current representation, however, they would both become co-owners of a piece of property and be involved with the refinancing of the first mortgage. The lawyer would then act as intermediary, in that she would be involved in any future changes in circumstances of either party, such as a buy out. Based upon these facts, the Committee advised that Rule 2.2, would permit the lawyer to handle the matters as an intermediary, "particularly if [the attorney] satisfies Rule 2.2(a)(2) by resolving them on terms compatible with both clients' best interests." Most importantly, however, the Committee advised that the lawyer must also, "comply with 2.2(a)(1) regarding consultation and each client's consent and Rule 2.2(a)(3) [regarding] impartiality," so as not to run afoul of Rule 2.2.

2.2:300   Preconditions to Becoming an Intermediary

‰ Primary Connecticut References: CT Rule 2.2
‰ Background References: ABA Model Rule 2.2, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

2.2:400   Communication During Intermediation

‰ Primary Connecticut References: CT Rule 2.2
‰ Background References: ABA Model Rule 2.2, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

2.2:500   Consequences of a Failed Intermediation

‰ Primary Connecticut References: CT Rule 2.2
‰ Background References: ABA Model Rule 2.2, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 2.3
‰ Background References: ABA Model Rule 2.3, Other Jurisdictions
‰ Commentary:

2.3:101      Model Rule Comparison

There is one significant difference between Connecticut Rule 2.3 and the Model Rule. The Connecticut Rule unequivocally mandates that the client give consent when a lawyer wishes to undertake an evaluation of a matter affecting a client for someone other than that client. In comparison the Model Rule mandates consent only when "the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely."

2.3:102      Model Code Comparison

There was no counterpart to this Rule in the Model Code.

2.3:200   Undertaking an Evaluation for a Client

‰ Primary Connecticut References: CT Rule 2.3
‰ Background References: ABA Model Rule 2.3, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Federal Deposit Insurance Corp. v. White Birch Center, Inc., No. CV 94-0312372 S, 1995 WL 127916 (Conn.Super. March 14,1995), the court held that an attorney who executed an opinion letter concerning a loan agreement now in dispute, has an ethical duty to disclose the basis for his evaluation a third party. In White Birch Center, the defendant moved to quash a notice of deposition filed by the Plaintiff. As a special defense, Defendants asserted, among other things, that the officers and directors of the corporation exceeded their authority to act, contradicting an opinion letter submitted to the original creditor by defendant's attorney. See id. at *1. In denying the defendant's motion to quash, the Court reasoned that, "Rule 2.3 of the Connecticut Rules of Professional Conduct permits an attorney to render such an evaluation to a third party." Id. Furthermore, "Rule 2.3(b) specifically provides an exception to the confidentiality requirement as disclosure is required in connection with a report of an evaluation." Id. Therefore, the court concluded that not only were the defense attorney's findings regarding his opinion letter not privileged, he has an ethical duty to disclose the basis for his evaluation. See id. at *2.

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

‰ Primary Connecticut References: CT Rule 2.3
‰ Background References: ABA Model Rule 2.3, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

2.3:400   Confidentiality of an Evaluation

‰ Primary Connecticut References: CT Rule 2.3
‰ Background References: ABA Model Rule 2.3, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Federal Deposit Insurance Corp. v. White Birch Center, Inc., No. CV 94-0312372 S, 1995 WL 127916 (Conn.Super. March 14,1995), the court held that an attorney who executed an opinion letter concerning a loan agreement now in dispute, has an ethical duty to disclose the basis for his evaluation a third party. See also 2.3:200

2.4   Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100   Comparative Analysis of Connecticut Rule

‰ Primary Connecticut 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

Connecticut has not adopted the new model rule.

2.4:200   Definition of "Third-Party Neutral"

‰ Primary Connecticut References:
‰ Background References: ABA Model Rule 2.4, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

Connecticut has not adopted the new model rule.

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

‰ Primary Connecticut References:
‰ Background References: ABA Model Rule 2.4, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

Connecticut has not adopted the new model rule.