Pennsylvania Legal Ethics
II. COUNSELOR
2.1:100 Comparative Analysis of Pennsylvania Rule
• Primary Pennsylvania References:
PA Rule 2.1
• Background References: ABA
Model Rule 2.1, Other Jurisdictions
• Commentary:
2.1:101 Model Rule Comparison
PA-R 2.1 directly parallels MR 2.1. The language is identical except for the fact that the PA-R 2.1 states that "a lawyer should exercise independent professional judgment and render candid advice, while MR 2.1 states that, "a lawyer shall exercise independent professional judgment and render candid advice." The commentary to MR 2.1 and PA-R 2.1 are also identical.
2.1:102 Model Code Comparison
There was no direct counterpart to this rule in the Disciplinary Rules of the Model Code. DR 5-107(B) provided that a lawyer "shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services." This provision is incorporated into PA-R 2.1 through language requiring a lawyer to "exercise independent professional judgment." EC 7-8 stated that "[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 .... In the final analysis however, ... the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client ...." This provision is incorporated into PA-R 2.1 through language stating that a lawyer "may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."
2.1:200 Exercise of Independent Judgment
• Primary Pennsylvania References:
PA Rule 2.1
• Background References: ABA
Model Rule 2.1, Other Jurisdictions
• Commentary: ABA/BNA § 31:701, ALI-LGL § 151, Wolfram
§ 4.3
2.1:300 Non-Legal Factors in Giving Advice
• Primary Pennsylvania References:
PA Rule 2.1
• Background References: ABA
Model Rule 2.1, Other Jurisdictions
• Commentary: ABA/BNA § 31:701, ALI-LGL § 151, Wolfram
§ 4.3
In rendering advice, a lawyer may refer to considerations other than the law such as moral, economic and political factors. PA-R 2.1. That is because advice couched narrowly in legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. PA-R 2.1 cmt ¶ 2. PA-R 2.2 also requires a lawyer to exercise independent professional judgment on behalf of his client. The lawyer must not allow his own interests, financial or otherwise, to influence his professional advice. Therefore, an attorney advising a client about a settlement must do so based on the client's interests, without considering his own interest in obtaining a fee. An opinion on the matter states that an attorney's recommendation of a settlement offer which waived his client's right to a statutory attorney fee award was not unethical because the settlement offer was better than the probable outcome of trial. Evans v. Jeff D., (U.S. 1986). An attorney may purchase the right to future settlement funds from a client so long as it does not interfere with the attorney's ability to exercise independent professional judgment and renders candid advise to his/her client as required by PA-R 2.1. Phila. Eth. Op. 95-7 (1995). PA-R 1.7 regarding conflicts of interest is related to PA-R 2.2 because when an attorney represents two parties that have a potential conflict of interest, his or her ability to exercise independent professional judgment and render candid advice may be adversely affected. Capriotty v. Bell (E.D. Pa. 1991), Dworkin v. General Motors Corp. (E.D. Pa. 1995). See also PA-R 1.7. A lawyer who accepts a case from a referring lawyer and then discovers that the referring lawyer missed the statute of limitations deadline for filing the case must tell the client why the case was dismissed and that he may have a legal malpractice claim against the referring attorney. Pa. Eth. Op. 88-225 (1988).
2.2:100 Comparative Analysis of Pennsylvania Rule
• Primary Pennsylvania References:
PA Rule 2.2
• Background References: ABA
Model Rule 2.2, Other Jurisdictions
• Commentary:
2.2:101 Model Rule Comparison
PA-R 2.2 is identical to MR 2.2. The commentary to each of the rules is also identical.
2.2:102 Model Code Comparison
There was no direct counterpart to this rule in the Disciplinary Rules of the Model Code. EC 5-20 states 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." DR-5-105(B) provided that a lawyer "shall not continue multiple employment if the exercise of his independent judgment in behalf of a client, will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representating differing interests, except to the extent permitted under DR 5-105(C)." DR 5-105(C) provided that "a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."
2.2:200 Relationship of Intermediation to Joint Representation
• Primary Pennsylvania References:
PA 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
2.2:300 Preconditions to Becoming an Intermediary
• Primary Pennsylvania References:
PA 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
2.2:400 Communication During Intermediation
• Primary Pennsylvania References:
PA 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
2.2:500 Consequences of a Failed Intermediation
• Primary Pennsylvania References:
PA 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
2.3 Rule 2.3 Evaluation for Use by Third Persons
2.3:100 Comparative Analysis of Pennsylvania Rule
• Primary Pennsylvania References:
PA Rule 2.3
• Background References: ABA
Model Rule 2.3, Other Jurisdictions
• Commentary:
2.3:101 Model Rule Comparison
PA-R 2.3 is identical to MR 2.3. Commentary to each rule is also identical.
2.3:102 Model Code Comparison
There is no counterpart to PA-R 2.3 in the Model Code.
2.3:200 Undertaking an Evaluation for a Client
• Primary Pennsylvania References:
PA Rule 2.3
• Background References: ABA
Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram
§ 13.4
PA-R 2.3 permits a lawyer to undertake an evaluation of a matter affecting a client for the use of someone other than the client if: the lawyer reasonably believes that the making of the evaluation is compatible with other aspects of the lawyer's relationship with the client and the client consents after consultation. PA-R 2.3(a).
2.3:300 Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]
• Primary Pennsylvania References:
PA Rule 2.3
• Background References: ABA
Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram
§ 13.4.4
A lawyer for a lien beneficiary who conducted "lien search" for use by the lienholder is not responsible to advise of defective title because that is a matter which would be revealed by a "title search" rather than a "lien search." Pittsburgh Coal & Coke, Inc. v. Cuteri (Pa. Super. Ct. 1991). If an attorney renders numerous opinions about the enforceability of real estate contracts and then learns at a later date, after one company has been forced into bankruptcy, that the contracts were based on fraudulent information designed to obtain financing for the buyer, the lawyer may disclose the fraud because his services were used in the fraudulent acts, but he not obligated to reveal the fraud. Pa. Eth. Op. 91-108 (1991).
2.3:400 Confidentiality of an Evaluation
• Primary Pennsylvania References:
PA Rule 2.3
• Background References: ABA
Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:704, ALI-LGL § 152, Wolfram
§ 13.4.3
Except as disclosure is required in connection with a report of an evaluation, information relating to an evaluation is otherwise protected by PA-R 1.6 which relates to confidentiality of information. PA-R 2.3(b). If a lawyer renders an opinion regarding the enforceability of contracts and then later discovers that the contracts were based on fraudulent information, he may disclose information necessary to avoid assisting in the client's fraud if called to testify at trial. Pa. Eth. Op. 91-108 (1991).
2.4:100 Comparative Analysis of Pennsylvania Rule
• Primary Pennsylvania 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
Pennsylvania has not adopted the new model rule.
2.4:200 Definition of "Third-Party Neutral"
• Primary Pennsylvania References:
• Background References: ABA
Model Rule 2.4, Other Jurisdictions
• Commentary:
Pennsylvania has not adopted the new model rule.
2.4:300 Duty to Inform Parties of Nature of Lawyer's Role
• Primary Pennsylvania References:
• Background References: ABA
Model Rule 2.4, Other Jurisdictions
• Commentary:
Pennsylvania has not adopted the new model rule.