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1.0 Definitions and Terminology
As used in these Rules, the following terms shall have the following meanings:
(a) ?Belief? or ?believes? means the person involved actually supposed the fact in question to be true. A person?s belief may be inferred from circumstances.
(b) ?Confirmed in writing,? referring to the informed consent of a person means informed consent given in writing by the person or a writing a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of ?informed consent.? If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
(c) ?Firm? or ?law firm? means a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; lawyers employed by the government to represent the government or a governmental entity; or lawyers in a legal services organization or the legal department of a corporation or other organization.
(d) ?Fraud? or ?fraudulent? means conduct fraudulent under the substantive or procedural law of the applicable jurisdiction and for the purpose to deceive.
(e) ?Informed consent? means a person?s agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Whether a client has given informed consent to representation shall be determined in light of the mental capacity of the client to give consent, the explanation of the advantages and risks involved provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstances bearing on whether the client has made a reasoned and deliberate choice.
(f) ?Knowingly,? ?known,? or ?knows? means actual knowledge of the fact in question. A person?s knowledge may be inferred from circumstances.
(g) ?Partner? means a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.
(h) ?Reasonable? or ?reasonably? when referring to a lawyer?s conduct means the conduct of a reasonably prudent and competent lawyer.
(i) ?Reasonable belief? or ?reasonably believes? when referring to a lawyer means the lawyer believes the matter in question and the circumstances are such that the belief is reasonable.
(j) ?Reasonably should know? when referring to a lawyer means a lawyer of reasonable prudence and competence would ascertain the matter in question.
(k) ?Screened? means the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm reasonably adequate under the circumstances to protect information the isolated lawyer is obligated to protect under these Rules or other law.
(l) ?Substantial? when referring to degree or extent means a material matter of clear and weighty importance.
(m) ?Tribunal? means a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party?s interests in a particular matter.
(n) ?Writing? or ?written? means a tangible or electronic record of a communication or representation, including, but not limited to, handwriting, typewriting, printing, Photostatting, photography, audio or video recording and e-mail. A ?signed? writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.
(o) "Advance," "advance payment of fees," or "retainer" means a payment by a client in anticipation of the future rendition of services that is not earned until such services are rendered and that is to be credited toward the fees earned when such future services are rendered.
(p) "Nonrefundable fee" means a fee paid to an attorney and earned by the attorney before professional services are rendered. Such a nonrefundable fee may be in exchange for retaining the attorney's availability alone or may be in exchange also for the right to receive specified services in the future for no additional fee, or for a stated fee.
Comment
Confirmed in Writing
[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained a client?s informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.
Firm
[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.
[3] With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.
[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.
Fraud
[5] When used in these Rules, the terms ?fraud? or ?fraudulent? refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client?s or other person?s options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.
[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client?s or other person?s silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person?s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of ?writing? and ?confirmed in writing,? see paragraphs (n) and (b). Other Rules require that a client?s consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of ?signed,? see paragraph (n).
Screened
[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict-of-interest under Rules 1.11, 1.12 or 1.18.
[9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.
[10] In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening.
Advisory Committee's Note - June 2014
Definitions have been added for "advance," "advance payment of fees," and "retainer" at Rule 1.0(o); and "nonrefundable fee" at Rule l.0(p).
A stylistic change has been made in the use of the term "retainer." Historically, the Rules and Ethics Opinions interpreting the Rules have used the term "retainer" to mean a fee that is earned on receipt, in contrast to an advance, which is not earned until future services are rendered. That usage was peculiar to the Rules. It did not conform to usage by lay people and even by many lawyers, who use the term "retainer" to refer to an advance that will be credited against future bills for services. In order to comport with common usage, the term "retainer" is now included in the definition of "advance," to be synonymous with that term.
This stylistic change is not meant to change the substantive principle that unearned fees (whether called "advances" or "retainers") must be kept in a lawyer's trust account before they are earned. It also is not meant to do away with the concept that was formerly referred to as a "retainer," namely a fee that is earned on receipt before services are rendered and not to be refunded. The previous definition of "retainer," which appeared in Rule 1.15(b)(7)(iii), has been removed from that Rule, and the concept it expressed is now captured in the newly defined term "nonrefundable fee."
The definition of "nonrefundable fee" clarifies that such fees, earned on receipt, are not limited to so-called "availability retainers." Rather, a fee may be earned on receipt, even though the parties expect the lawyer to render future services, even at no additional charge. So long as the fee is reasonable, such an agreed-upon fee is not refundable, even though the future services are not rendered (for example, because they end up not needed or because the client terminates the representation). The Committee intends this broader definition to displace the narrower concept of a "general retainer" or "availability retainer" expressed in Ethics Opinion No. 206 (Dec. 12, 2012) of the Professional Ethics Commission. A lawyer's acceptance of a nonrefundable fee is subject to requirements set forth in Rule l.5(h). The requirement that all advances be placed in a trust account is set forth in Rule 1.15(b). Rule 1.16(d) requires a lawyer to return the unearned portion of an "advance payment of fees" on termination of representation, and does not require the return of a "nonrefundable fee."
