Connecticut Legal Ethics

V. LAW FIRMS AND ASSOCIATIONS

5.1 Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer

5.1:100 Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 5.1
‰ Background References: ABA Model Rule 5.1, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

5.1:101 Model Rule Comparison

Paragraph (a) of the Conn. Rule is substantially similar to the Model Rule, except that the Conn. Rule is narrower, applying only to a "partner in a law firm," where the Model Rule also applies to "a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm."

Paragraph (b) of the Conn. Rule is identical to the Model Rule.

Paragraph (c) of the Conn. Rule is substantially similar to the Model Rule, except that, as in Paragraph (a), the Conn. Rule does not broaden the definition of "partner in a law firm."

5.1:102 Model Code Comparison

Rule 5.1 had no counterpart in the Model Code. The most nearly pertinent provision, DR 1-103(A) , predecessor to Rule 8.3 , provided that a lawyer "possessing unprivileged knowledge of a violation of DR 1-102 [predecessor of Rule 8.4] shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."

5.1:200 Duty of Partners to Monitor Compliance with Professional Rules

‰ Primary Connecticut References: CT Rule 5.1(a)
‰ Background References: ABA Model Rule 5.1(a), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Statewide Grievance Committee v. Spirer, No. CV 950147662S, 1996 WL 150598, at *1 (Conn. Super. Mar. 12, 1996), an attorney in respondentÁs firm was found guilty of unethical and criminal conduct when he induced a mortgagee bank to lend monies against real estate collateral believed by the bank to be subject of a bonafide purchase when, in fact, that transaction was a refinance of an existing mortgage. The respondent, a partner of the firm, was suspended from the practice of law as a result of his violation of CT Rule 5.1. The court held that Ë[a] lawyerÁs duty, as a partner in a law firm, to prevent unethical behavior by other lawyers in the firm, cannot be minimized. It is simply not enough to disavow the offending behavior of which he has become aware, or look the other way. If he cannot prevent these practices and the firm refuses to terminate the unethical conduct, his duty is to remove himself from that firm.Ó

In Statewide Grievance Committee v. Moore, No. CV 010096127, 2001 WL 1614704, at *1 (Conn. Super. Nov. 28, 2001), the court dismissed the action against the respondent-partner. While the respondent could have reported his co-workerÁs violation of the Rules of Professional Conduct to the court sooner, the court recognized the challenges of Ëloyalty and friendshipÓ and focused on the fact that the respondent reported the unethical conduct.

Informal Opinion 89-21 (1989) advised a partner that he or she had an ethical obligation to the clients of other partners within the firm. Therefore, when a co-worker missed the statute of limitations for filing suit, failed to inform the client of this ËoversightÓ and then paid the client a sum of money while representing to the client that this was a settlement, the inquiring partner was directly responsible for these acts.

5.1:300 Monitoring Duty of Supervising Lawyer

‰ Primary Connecticut References: CT Rule 5.1(b)
‰ Background References: ABA Model Rule 5.1(b), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In King v. Guiliani, No. CV 92029030S, 1993 WL 284462, at *10 (Conn. Super. July 27, 1993), the court found that the responsibilities of a supervising attorney end with that attorneyÁs termination. Every lawyer must abide by the rules of professional conduct, including lawyers who operate without a supervising attorney.

Informal Opinion 99-2 (1999) warned a law firm, who planned on forming an interstate partnership where the Connecticut office would be comprised only of associates, that the interstate firm Ëmay encounter significant logistical difficulties in complying with its ethical obligations to assure compliance with the rules and to supervise adequately associate attorneys and paralegals.Ó

5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer

‰ Primary Connecticut References: CT Rule 5.1(c)
‰ Background References: ABA Model Rule 5.1(c), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

Informal Opinion 99-44 (1999) advised an attorney, asked to assist in a criminal defense matter, who believed that the criminal defendantÁs counsel had provided ineffective assistance to his client. The Committee stated that CT Rule 5.1(c) is not limited to supervisory relationships with governmental agencies or firms and provides that a lawyer shall be responsible for another lawyer who violates the rules if ËThe lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved.Ó To avoid the possibility that a court would view this attorneyÁs conduct as ratifying the decision of the other lawyer not to reveal his ineffective assistance, the Committee recommended that the attorney make his position clear in writing.

5.1:500 Vicarious Liability of Partners

‰ Primary Connecticut References: CT Rule 5.1
‰ Background References: ABA Model Rule 5.1, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

Connecticut General Statute section 34-327(d) supersedes Conn. Rule 5.1(a) and 5.1(c), except where the person who violated a Rule of Professional Conduct is under the partnerÁs Ëdirect supervision and control.Ó Conn. Gen. Stat. ã 34-327 provides in part (c) Ë. . . a partner in a registered limited liability partnership is not liable directly or indirectly . . . for any debts, obligations and liabilities . . . chargeable to the partnership or another partner or partners . . . arising in the course of the partnership business while the partnership is a registered limited liability partnership.Ó Part (d) provides that Ësubsection (c) . . . shall not affect the liability of a partner . . . for his own negligence, wrongful acts or misconduct, or that of any person under his direct supervision or control.Ó In Klus v. Irving, 46 Conn. Supp. 35, 736 A.2d 946 (1999), the court held that two partners were not liable for the misconduct of another partner in their firm, since they shared no benefit, did not have direct supervision or control over the partner and did not know about the matter until after-the-fact.

5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer

5.2:100 Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 5.2
‰ Background References: ABA Model Rule 5.2, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

5.2:101 Model Rule Comparison

Conn. Rule 5.2 is identical to Model Rule 5.2

5.2:102 Model Code Comparison

There is no counterpart in the Model Code.

5.2:200 Independent Responsibility of a Subordinate Lawyer

‰ Primary Connecticut References: CT Rule 5.2(a)
‰ Background References: ABA Model Rule 5.2(a), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, 247 Conn. 48, 57-58, 717 A.2d 724 (1998), the Connecticut Supreme Court held that an associate attorney who makes no false statement of fact with regard to the experience or expertise of the firm is not liable for such negligent misrepresentations by a senior attorney, even if such statements are made in her presence. An associate attorney may be liable for malpractice, however, if she fails to seek adequate supervision in an area where she lacks the expertise necessary to provide competent representation. Id. at 56.

Informal Opinion 96-20 (1996) concluded that a subordinate attorney must report conduct by another associate attorney within the firm that raises a Ësubstantial questionÓ under Rule 8.3(a) despite assurances by the managing partner that the matter has been resolved, or that in his judgment, the matter is not worthy of reporting.

Informal Opinion 96-14 (1996) explained that a subordinate attorney working for a state agency may not be responsible for the administrative processes followed by the agency and its general counsel, even where those processes arguably fail to provide adequate due process to respondents subject to enforcement actions.

5.2:300 Reliance on a Supervisor's Resolution of Arguable Ethical Issues

‰ Primary Connecticut References: CT Rule 5.2(b)
‰ Background References: ABA Model Rule 5.2(b), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

Informal Opinion 99-8 (1999) explained that a subordinate attorney may not defer to the judgment of a supervisory attorney with regard to an ethical question until the subordinate attorney has researched the issue, discussed it with the supervisory attorney, and come to an independent conclusion that the question is reasonably arguable.

5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

5.3:100 Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 5.3
‰ Background References: ABA Model Rule 5.3, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

5.3:101 Model Rule Comparison

Conn. Rule 5.3 is identical to Model Rule 5.3

5.3:102 Model Code Comparison

There was no direct counterpart to Rule 5.3 in the Model Code. The equivalent would be DR 4-101(D) and DR 7-107(J) provided that: DR 4-101(D) a lawyer Ëshall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client. DR 7-107(J) provided that Ë[a] lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making under DR 7-107.Ó

5.3:200 Duty to Establish Safeguards

‰ Primary Connecticut References: CT Rule 5.3(1)
‰ Background References: ABA Model Rule 5.3(a), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Martini v. Shelter Rock Realty, No. 113425, 1996 WL 55984, *1 (Conn.Super. Jan. 19, 1996), unbeknownst to the attorney handling the case, a non-attorney employee, in good faith, received and copied potentially privileged documents which were the subject of an evidentiary challenge. Because the attorney did not order the copying, did not ratify and conduct, and did not know of the conduct at a time when its consequences could have been mitigated, the court did not hold the attorney liable for the employeeÁs conduct, but did consider ordering the attorney to provide better ethics training to employees.

In Rivera v. Chicago Pneumatic Tool Co., No. 516364, 1991 WL 151892, *2-3 (Conn.Super. Aug. 5,1991), the court held that when a law firm hires a non-attorney formerly employed by another law firm, adequate measures must be taken to screen the non-attorney from any cases where a conflict of interest may exist between her present and former employers and clients. Disqualification of the hiring firm from representation, however, is not warranted unless the non-attorney has in fact divulged a confidence. Id. at *3.

Informal Opinion 00-23 (2000) explained that a law firm may take a case even though one of its non-attorney assistants worked on the other side of the same case while employed at a different law firm as long as the present law firm uses effective screening procedures on a timely basis and is willing to assume the risk of possible disqualification if any confidences are divulged. Id. The present law firm should also consider consulting with the proposed client about the ramifications of representation. Id. The former law firm, when aware that one of its former employees has transferred to an opposing law firm, should consider advising the new law firm that the employee should be screened from particular cases. Id.

5.3:300 Duty to Control Nonlawyer Assistants

‰ Primary Connecticut References: CT Rule 5.3(2)
‰ Background References: ABA Model Rule 5.3(b), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Statewide Grievance Committee v. Pinciaro, No. CV970396643S, 1997 WL 155379, *1 (Conn.Super. Mar. 21, 1997), the attorney in question hired an investigator to carry out various responsibilities, including delivery of funds to clients. Id. Without the attorneyÁs prior knowledge, the investigator retained portions of client funds after settlement of a particular case as ËinvestigationÓ and ËreferralÓ fees. Because the attorney was unaware of the investigatorÁs conduct, and because attorneys need not instruct non-attorney assistants with regard to such obviously inappropriate behavior, the court concluded that the attorney had committed no violation of Rule 5.3. Id. at *2-3.

In Cramer v. Statewide Grievance Committee, No. CV960562467, 1997 WL 155397, *3 (Conn.Super. Jan. 31, 1997), the court held that an attorney was liable for misrepresentations made by a non-attorney employee to a client regarding the status of a case even though the attorney was unaware of the actual status of the case, had also been mislead by the employee, and had fired the employee to remedy the situation.

Informal Opinion 97-38 (1997) concluded that Ëthe fiduciary responsibilities involved in maintaining client trust fund accounts impute knowledge of the state of those accounts to the lawyer,Ó thus making the attorney responsible for any mishandling of trust property by his employees of which he was or should have been aware.

5.3:400 Responsibility for Misconduct of Nonlawyer Assistants

‰ Primary Connecticut References: CT Rule 5.3(3)
‰ Background References: ABA Model Rule 5.3(c), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Martini v. Shelter Rock Realty, No. 113425, 1996 WL 55984, *1 (Conn. Super. Jan. 19, 1996), unbeknownst to the attorney handling the case, a non-attorney employee, in good faith, received and copied potentially privileged documents which were the subject of an evidentiary challenge. Because the attorney did not order the copying, did not ratify and conduct, and did not know of the conduct at a time when its consequences could have been mitigated, the court did not hold the attorney liable for the employeeÁs conduct, but did consider ordering the attorney to provide better ethics training to employees.

Informal Opinion 95-4 (1995) addressed a situation where an attorney was aware of the new address and phone number of an attorney that had recently left the firm, but instructed his secretary to tell callers that the departed attorneyÁs whereabouts were unknown and to retain any faxes addressed to the departed attorney without informing the departed attorney of the attempted correspondence. The Committee concluded that the attorney was responsible for the misconduct of the secretary in carrying out the attorneyÁs instructions. Id.

5.4 Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]

5.4:100 Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 5.4
‰ Background References: ABA Model Rule 5.4, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

5.4:101 Model Rule Comparison

Model Rule 5.4 and Conn. Rule 5.4 are substantially similar, containing a number of provisions that are identical. Subsection (a) of the Rules are almost identical, except for two differences. Both Rules prohibit a lawyer from sharing fees with nonlawyers, excluding certain enumerated exceptions. Both Rules contain identical language regarding two of the exceptions found in 5.4(a)(1) and (3) permitting the sharing of legal fees with a deceased attorneyÁs estate or to other specified persons and sharing of legal fees in the context of employment and retirement compensation to employees of attorneys. In subsection 5.4(a)(2), both Rules permit a lawyer to share legal fees with a deceased lawyerÁs estate, when the attorney works on the deceased attorneyÁs files. The Model Rule and Conn. Rule 5.4(a)(2) couch this exception in different terms. Conn. Rule 5.4(a)(2) provides that a lawyer may share legal fees with a nonlawyer when Ë[a] lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.Ó Model Rule 5.4(a)(2) states a lawyer may share legal fees, provided Ëa lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price.Ó Additionally, the Model Rule contains a provision which Conn. Rule 5.4 does not regarding the ability of a lawyer to share Ëcourt-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.Ó

Model Rule 5.4(b) and Conn. Rule 5.4(b) are identical prohibiting a lawyer from forming a partnership with a nonlawyer Ëif any of the activities of the partnership consist of the practice of law.Ó

Model Rule 5.4(c) and Conn. Rule 5.4(c) are identical. The Rules bar any person, other than the client, to direct or regulate the lawyerÁs professional judgment: ËA lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyerÁs professional judgment in rendering such legal services.Ó

Model Rule 5.4(d) and Conn. Rule 5.4(d) are virtually identical, with the exception of one variance contained in the Model Rule. Both Rules bar a lawyer from practicing with or in the form of a professional corporation which practices law for profit, if certain conditions are met. First, a lawyer may not engage in such a practice if a nonlawyer owns any interest in the corporation, excluding fiduciary representatives of the estate of the lawyer. Second, a lawyer may not practice in such an entity if a nonlawyer holds an executive position. Model Rule 5.4(d)(2) mandates that a lawyer may not practice in such an organization if Ëa nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation.Ó Conn. Rule 5.4(d)(2) does not contain the phrase Ëor occupies the position of similar responsibility in any form of association other than a corporation.Ó This leaves open questions of whether nonlawyers could have executive positions. For example, could a law firm organized as an Limited Liability Corporation (ËLLCÓ) be managed by a nonlawyer? Third, both Rules, in subsection (d)(3) prohibit a lawyer from practing in such an entity if a Ënonlawyer has the right to direct or control the professional judgment of a laywer.Ó

5.4:102 Model Code Comparison

Conn. Rule 5.4(a) is substantially similar to Model Code DR 3-102. Both contain the same provisions regarding when sharing of fees with a nonlawyer is permissible, with some minor differences in wording. DR 2-103(A)(3) does contain the additional requirement that retirement compensation may not Ëcircumvent another Disciplinary Rule.Ó

Conn. Rule 5.4(b) and Model Code DR 3-103 are identical regarding the prohibition against forming a partnership with a nonlawyer. Conn. Rule 5.4(c) and Model Code DR 5-107(B) are almost identical, except for the Code use of masculine pronouns and Conn. RuleÁs use of Ëthe lawyer.Ó Conn. Rule 5.4(d) and Model Code DR 5-107(C) are identical regarding the prohibitions against nonlawyerÁs involvement in professional corporations or associations which engage in the practice of law.

5.4:200 Sharing Fees with a Nonlawyer

‰ Primary Connecticut References: CT Rule 5.4(a)
‰ Background References: ABA Model Rule 5.4(a), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Informal Opinion 99-25 (1999), the inquiring attorney questioned the lawfulness of a proposed business arrangement. The attorney desired to enter into an agreement with a collection agency. The collection agency would refer account to the attorney. Under such accounts, creditors could pay the attorney an up front fee or have the attorney and the collection agency advance the fee. If the attorney and the agency advanced the costs (and monies are collected), the attorney and the agency would split the fee equally. The Committee opined that such an arrangement was violative of Rule 5.4(a) because the attorney, in essence, would be sharing fees with non-lawyers - the collection agency. The Opinion noted that a permissible course of action, pursuant to Rule 5.4(c) would be for the attorney Ëto deduct [his] fee from the collection and send the balance to the agency to be disbursed according to the agreement between the agency and the client....Ó

In Informal Opinion 93-11 (1993), the Committee noted that under Rule 5.4(a), a lawyer who shares office space with a tax professional/nonlawyer may not share in any fee that the attorney charges for legal work.

Informal Opinion 93-1 (1993) held that a law firmÁs incentive programs for its paralegals was permissible under Rule 5.4(a)(3). Under the program, in addition to paralegalsÁ weekly salaries and overtime, the law firm compensated paralegals with periodic bonuses calculated as follows: Ë1. $40 for every set of Chapter 7 or Chapter 13 bankruptcy schedules drafted. 2. $5 per hour for every billable hour recorded by the paralegal on client work other than Chapter 7 or Chapter 13 debtors.Ó Moreover, the firm indicated that the bonuses were not a fee sharing arrangement, but rather, the bonuses were paid Ëregardless of whether the firm collects its fee, regardless of how much the firm charges the client, and regardless of the firmÁs profitability.Ó The Opinion noted that the payment to nonlawyers from fees earned was not a violation of the Rules.

5.4:300 Forming a Partnership with Nonlawyers

‰ Primary Connecticut References: CT Rule 5.4(b)
‰ Background References: ABA Model Rule 5.4(b), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Informal Opinion 89-30 (1989), the Committee noted that a partnership between a lawyer/private investigator and another private investigator may be impermissible under Rule 5.4(b) if Ëany of the activities of the partnership consist of the practice of law.Ó

In Formal Opinion 48, the Committee opined that Ëa service for legal research, advice, and document drafting may not, consistent with Rule 5.4, be operated as a partnership between a lawyer and a nonlawyer.Ó

5.4:400 Third Party Interference with a Lawyer's Professional Judgment

‰ Primary Connecticut References: CT Rule 5.4(c)
‰ Background References: ABA Model Rule 5.4(c), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Informal Opinion 97-37 (1997), the Committee opined, pursuant to Rule 5.4(c), an insurance company, who hired an attorney to represent its insured, cannot direct the lawyerÁs performance of legal services. In this case the insured, the attorneyÁs client, directed the attorney not to file any apportionment or indemnification claims. The clientÁs insurance company, on the other hand, directed the attorney to file such claims. The Opinion held that Rule 5.4(c) required the lawyer to disregard the insurance companyÁs directions and follow his clientÁs wishes. Informal Opinion 92-7 (1992) and Informal Opinion 87-13 (1987) are in accord.

In Informal Opinion 97-35 (1997), the Committee held that Rule 5.4(c) required an attorney, who represented a four year old child in connection with an application for Social Security disability benefits, to represent the client according to the lawyerÁs judgment, Ëeven if it conflicts with the desires of the parent or parents.Ó In this case, the childÁs mother wanted to withdraw her childÁs application for benefits, if she was not named as his representative payee. Whereas, the childÁs father wanted to proceed with the application. The attorney believed it was in the childÁs best interests to proceed. The Opinion noted that the attorney should represent the childÁs interests.

5.4:500 Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations

‰ Primary Connecticut References: CT Rule 5.4(d)
‰ Background References: ABA Model Rule 5.4(d), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

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

5.4:510 Group Legal Services

In Formal Opinion 43, the Committee opined that an attorney may practice law in a limited partnership form, provided that attorney is in compliance with the applicable Rules of Professional Conduct. For instance, pursuant to Rule 5.4(b), the limited partnership could not admit lay partners. Lawyers, however, could become a limited partner under Rule 5.4(b).

5.4:520 Nonprofit Organizations Delivering Legal Services

In Bank of Hartford v. Bultron, No. SP-H-9296-65684, 1992 WL 436242 (Conn. Super. Dec. 21, 1992), the court held that Neighborhood Legal Services, Inc., (ËNLSÓ) a non-profit corporation, which employed attorneys to represent low income individuals did not violate Rule 5.4(d). The court noted that the record indicated no evidence suggesting that Ëthe Board of Directors (lay people) of NLS has interfered with the attorney client relationship....Ó The court highlighted that NLS policies prohibited the Board from interacting on any level with the staff attorney in his representation of clients. Further, Ëat all times it is the attorney personally, and not the entity known as Neighborhood Legal Services, Inc., or its board of directors that represents the client.Ó The court held that this program was fully consistent with Rule 5.4(d).

5.5 Rule 5.5 Unauthorized Practice of Law

5.5:100 Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 5.5
‰ Background References: ABA Model Rule 5.5, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

5.5:101 Model Rule Comparison

Conn. Rule 5.5 is virtually identical to Model Rule 5.5, with one exception. Both Rules prohibit a lawyer from practicing law in a jurisdiction Ëwhere doing so violates the regulation of the legal profession in that jurisdiction.Ó Conn. Rule 5.5(1) and Model Rule 5.5(a). Secondly, both Rules prohibit a lawyer from assisting a person from engaging in activity that amounts to the unauthorized practice of law. Under the Model Rule, a lawyer may not assist a person who is Ënot a member of the bar.Ó ConnecticutÁs prohibition is more detailed in that it prevents a lawyer from assisting a person Ëwho is not a member of the bar, who has retired from the bar, or who has been suspended, disbarred, or placed on inactive statusÓ engage in the unauthorized practice of law.

5.5:102 Model Code Comparison

Conn. Rule 5.5 and Model Code DR 3-101 are substantially similar. Model Code DR 3-101(A) mirrors Conn. Rule 5.5(2)Ás prohibition against a lawyer aiding a non-lawyer to engage in the unauthorized practice of law. DR 3-101(A), however, is not as expansive as Conn. Rule 5.5.(2) as it only applies to Ënon-lawyers.Ó DR 3-101(B) and Conn. Rule 5.5(1) contain the same prohibition against a lawyer from practicing in a jurisdiction where doing so would result in a violation of the rules of that jurisdiction, however, each is couched in different terms.

5.5:200 Engaging in Unauthorized Practice

‰ Primary Connecticut References: CT Rule 5.5(1)
‰ Background References: ABA Model Rule 5.5(a), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

5.5:210 Practice of Law by Nonlawyers

In Informal Opinion 96-16 (1996), the Committee opined that it was permissible under Rule 5.5 for a paralegal to act Ëas a messenger to deliver and pick up documents and funds required for a real estate closing.Ó The Opinion warned, however, that the paralegal Ëshould not compromise his or her function as a messenger by providing information regarding the legal implications of a document.Ó The Opinion detailed actions that are not permitted, including, the paralegal may not Ëbe involved as an intermediary between the sellerÁs attorney and the buyer or the buyerÁs attorney to negotiate or otherwise resolve questions about the funds or legal sufficiency or effect of documents... use or express any independent opinion or judgment about such matters.Ó

Informal Opinion 99-8 (1998) noted that the determination of whether an activity constitutes the Ëunauthorized practice of lawÓ is a question of law, not a question of ethics. Furthermore, the definition of the practice of law is not uniform throughout the jurisdictions. Rather, its definition varies from state to state, from jurisdiction to jurisdiction.

5.5:220 Admission and Residency Requirements for Out-of-State Lawyers

In Informal Opinion 88-9 (1988), the Committee noted that an out-of-state law firmÁs advertisements in Connecticut would be subject to the applicable regulations pertaining to the legal profession in Connecticut.

5.5:230 Pro Hac Vice Admission [see also 8.1:240]

In Informal Opinion 92-19 (1992), the Committee opined that there are circumstances in which a lawyer does not have to seek permanent admission or permission to appear pro hac vice in a jurisdiction, other than the jurisdiction in which the lawyer is licensed. The Opinion noted Rule 5.5 should not be interpreted as a Ëtotal prohibition against attorneys from one jurisdiction advising clients on matters involving their legal rights in another.Ó Rather, a lawyer may represent a client Ëinvolving legal issues arising under the laws of another jurisdiction so long as the activities thereby engaged do not constitute the Çpractice of lawÁ as defined in that jurisdiction.Ó

5.5:240 Performing Legal Services in Another Jurisdiction

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

5.5:250 Special Legal Consultants (Foreign Lawyers)

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

5.5:300 Assisting in the Unauthorized Practice of Law

‰ Primary Connecticut References: CT Rule 5.5(2)
‰ Background References: ABA Model Rule 5.5(b), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In King v. Guiliani, No. CV 920290370S, 1993 WL 284462 (Conn. Super. 1993), the court held that a ËcaptiveÓ law firm did not engage in the unauthorized practice of law. The court defined a captive law firm as one in which Ëall attorneys and staff are employees of an insurance company, the company pays all office expenses and salaries and the attorneys are assigned to represent the insured against whom claims have been made.Ó King, 1993 WL at *2, n.3. The court held that this arrangement did not trigger Rule 5.5(2)Ás prohibition against assisting non-lawyers engage in the unauthorized practice of law because the relationship was structured so as to ensure that the attorneys were representing the insureds adequately and without conflict.

In Monroe v. Horwitch, 820 F.Supp. 682 (D.Conn. 1993), the court noted that a lawyer may properly delegate certain tasks to paralegals provided that Ëthe lawyer supervises the delegated work and retains responsibility for their work.Ó Monroe, 820 F.Supp. at *687 (quoting Conn.Prac.Book Rule 5.5 (comment)).

Informal Opinion 88-15 (1988) opined that if a paralegal holds a position in which the skills of a lawyer are Ëobviously required,Ó the employer and the attorney placement recruiter (also, an attorney) would be Ëin violation of Rule 5.5(b) by assisting the unauthorized practice of law.Ó Note, Rule 5.5(b) is currently Rule 5.5(2).

Informal Opinion 98-5 (1998) noted that a lawyer may counsel and advise a Ëpro se litigant and assist the litigant in the preparation of pleadingsÓ without violating Rule 5.5(2).

5.6 Rule 5.6 Restrictions on Right to Practice

5.6:100 Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 5.6
‰ Background References: ABA Model Rule 5.6, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

5.6:101 Model Rule Comparison

Conn. Rule 5.6 is virtually identical to Model Rule 5.6, except for two differences. First, Model Rule 5.6 prohibits a lawyer from participating in the making or offering of Ëa partnership, shareholders, operating, employment, or other similar type of agreementÓ restricting the lawyerÁs ability to practice law upon termination. Whereas, Conn. Rule 5.6 (1)Ás prohibits the same in the context of a Ëpartnership or employment agreement.Ó Second, both Rules prohibit a lawyer from participating in the offering or making of an agreement restricting the lawyerÁs right to practice as part of a settlement of, under the Model Rule Ëa client controversy,Ó and, under the Connecticut Rule, Ëa controversy between private parties.Ó

5.6:102 Model Code Comparison

Conn. Rule 5.6 is substantially similar to Model Code DR 2-108. The differences are semantic. First, both Rules prohibit restrictions on employment after termination, excluding agreements regarding retirement benefits. The Model Code, however, contains more specific language regarding the contents of such agreements: ËA lawyer shall not be party to or participate in a partnership or employment agreement with another lawyer that restricts the right of the lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.Ó Second, both Rules prohibit a lawyer from entering into an agreement as part of a settlement which restricts his ability to practice law. Model Code DR 2-108(B), however, does not confine the controversy as Ëbetween private parties,Ó but states: Ëin connection with the settlement of a controversy or suit....Ó

5.6:200 Restrictions on Lawyers Leaving a Firm

‰ Primary Connecticut References: CT Rule 5.6(1)
‰ Background References: ABA Model Rule 5.6(a), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 747 A.2d 1017, (2000), the court examined the retirement benefits exception to Rule 5.6, which provides that a lawyer may enter into a Ëpartnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.Ó The court noted that underlying the retirement benefits exception Ëis the notion that the publicÁs interest in fostering liberal competition among practitioners must be balanced against a law firmÁs interest in maintaining a steady income flow for the purpose of providing former members with substantial remuneration upon retirement.Ó The court addressed whether complete cessation from the practice of law is necessary under the Rule. The court held that eligibility for retirement benefits is not conditioned on absolute cessation of practice.

In Zeldes, Needle & Cooper v. Shrader, Nos. 960337355S, 960337701S, 1997 WL 644908 (Conn. Super. Oct. 10, 1997), the court noted the policy underlying Rule 5.6: Ëthe commercial concerns of the firm and of the departing are secondary to the need to preserve client choice.Ó Zeldes, 1997 WL at **5 (quoting Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 607 A.2d 142, 151 (1992)).

Informal Opinion 90-21 held that an employee agreement containing a provision regarding deferred compensation was permissible under Rule 5.6(a). Under the agreement, an employee who retired on or after his 62nd birthday or who was permanently disabled was eligible for a substantial deferred compensation package. A condition to receiving the deferred compensation, however, was that the attorney had to refrain from practicing law in the county where the firm was located for a period up to seven years. The Committee opined that the provision fell squarely within Rule 5.6(a) and, therefore, was a permissible restriction on the lawyerÁs ability to practice.

In Informal Opinion 89-26, the Committee was asked to determine whether a clause in a firmÁs partnership agreement was violative of Rule 5.6. The provision in question established differing levels of post-withdrawal payments to departing lawyers, which were dependent on the withdrawing partnerÁs activities after separation (i.e., ËinactiveÓ partners, those who did not work in private practice in a specified area, could receive 100% of the withdrawal amount and ËactiveÓ partners, those who did, could receive about 50% of the withdrawal amount). The Opinion held that this provision did not violate Rule 5.6 because it did not restrict a lawyerÁs ability to practice law. Rather, the provision acted as a financial disincentive to practice law in a given geographical area, permissible under the Rule.

5.6:300 Settlements Restricting a Lawyer's Future Practice

‰ Primary Connecticut References: CT Rule 5.6(2)
‰ Background References: ABA Model Rule 5.6(b), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

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

5.7 Rule 5.7 Responsibilities Regarding Law-Related Services

5.7:100 Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References:
‰ Background References: ABA Model Rule 5.7, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

5.7:101 Model Rule Comparison

[The discussion of this topic has not yet been written.]

5.7:102 Model Code Comparison

[The discussion of this topic has not yet been written.]

5.7:200 Applicability of Ethics Rules to Ancillary Business Activities

‰ Primary Connecticut References:
‰ Background References: ABA Model Rule 5.7, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

[The discussion of this topic has not yet been written.]