A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. Authorized Disclosure. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter.
Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. Disclosure Adverse to Client. The lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. Similarly, a lawyer has a duty under Rule 3. In such a situation, the lawyer has not violated Rule 1.
Nevertheless, to extend the protection of Rule 1. If the client refuses or is unable to right the wrong, the lawyer may or shall reveal confidential information to the affected person or entity to the extent reasonably necessary to remedy the consequences of the criminal or fraudulent activity.
In terms of the discretionary disclosure provisions of Rule 1. See also Comments - to this Rule. As stated in Rule 1. The lawyer may make a disclosure in order to prevent such consequences which the lawyer reasonably believes are intended by a client. It is very difficult for a lawyer to know when such a heinous purpose will actually be carried out, for the client may have a change of mind.
In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph b 3 permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary, or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together.
The lawyer's right to respond arises when an assertion of such complicity has been made.
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Paragraph b 4 does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.
Whether such a law supersedes Rule 1. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1. If, however, the other law supersedes this Rule and requires disclosure, paragraph b 7 permits the lawyer to make such disclosures as are necessary to comply with the law.
Absent consent of the client, after consultation, to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the client-lawyer privilege. The client-lawyer privilege is differently defined in various jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, Rule 1.
Under Rule 1. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure.
In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
Disclosure may be required, however, by other Rules. For example, some Rules require disclosure if such disclosure would be permitted by paragraph b.
See Rules 4. See Rule 3. Furthermore, neither this Rule nor Rule 1. Acting Competently to Preserve.
This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances may warrant special precautions. A client may require the lawyer to implement reasonable additional security measures not required by this Rule, the cost for which would be borne as determined by agreement between the client and the attorney.
The client may also give consent, after consultation, to the use of a means of communication that would otherwise be prohibited by the Rule. Former Client. Organization as Client. A concurrent conflict of interest exists if:. General Principles. For the specific Rule regarding certain concurrent conflicts of interest, see Rule 1. For former client conflicts of interest, see Rule 1.
For conflicts of interest involving prospective clients, see Rule 1. The clients affected under paragraph a include both of the clients referred to in paragraph a 1 and the one or more clients whose representation might be materially limited under paragraph a 2. To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comments  and  on Rule 5.
As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment  to Rule 1.
See also Comments  and  of this Rule. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients.
The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. Identifying Conflicts of Interest: Directly Adverse. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.
Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.
For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the consent of each client after consultation. Identifying Conflicts of Interest: Material Limitation.
The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. Personal Interest Conflicts. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See also Rule 1. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the client agrees to representation by the lawyer.
Thus, lawyer X, related to lawyer, Y, e. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. Prohibited Representations. In such situations, the conflict cannot reasonably be consented to because the lawyer involved cannot reasonably ask the client for consent and cannot provide independent, objective representation even if the client were to consent.
See Comment  to Rule 1. When the lawyer is representing more than one client, the question of whether reasonable consent is possible must be resolved as to each client. Under paragraph b 1 , the representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation.
Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyerhas neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants.