Click here</a> </span></strong> <span style=\"color: rgba(255, 0, 0, 1)\">for an explanation regarding the history and the binding authority of this opinion.</span></p><p><strong> State Disciplinary Board<br>September 20, 1968<br>Amended by the Formal Advisory Opinion Board<br>March 1993 </strong></p><p><strong>Propriety of an attorney permitting the use of his or her letterhead stationery by a retainer client who is writing as a creditor or as a collection agency seeking to collect an account or debt from the recipient.</strong></p><p>The question submitted is actually in five differing forms, but each question involves certain ingredients which result in the advisory opinion being the same as to each. DR 3-101(a) provides: \"A lawyer shall not aid a non lawyer in the unauthorized practice of law.\"See also Standard 24. It may well be that under this rule the varying factual situations may be productive or varying conclusions. The determination of what constitutes the unauthorized practice of law in Georgia is a matter of statutory interpretation, O.C.G.A. § 15-19-50 et.seq., and this opinion is not based on either the above standard or statutes.</p><p>Standard 4 requires that \"A lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit, or willful misrepresentation.\"In light of these admonitions, it is professionally improper for a lawyer to furnish his or her letterhead to a client for the purpose stated. A lawyer is an officer of the court. As such, the lawyer assumes certain responsibilities, is under certain obligations and the lawyer's conduct is subject to certain restrictions and limitations. The lawyer is obligated to uphold the honor and dignity of the profession. See EC 9-6. The lawyer's participation in conduct contemplated purely and simply to deceive is incompatible with those responsibilities and obligations.</p><p>In addition, a lawyer has been given certain privileges by the State. Because of these privileges, letters of the character stated in the question purporting to be written by lawyers have a greater weight than those written by laymen. It is obvious that the sole reason for the practice is to give the letter the weight that lawyers alone can contribute. That end can be gained only through the deception which is manifestly out of harmony with the Code of Professional Responsibility. See EC 3-3. The lawyer cannot, therefore, delegate to a nonlawyer.</p><p>The practice described is violative of both the letter and the spirit of the ethical canons and constitutes unethical practice.</p>","UrlName":"rule492","Order":0,"IsRule":false,"Children":[],"ParentId":"e206625a-5bec-4179-af98-e582f4eee646","Revisions":[],"Ancestors":["e206625a-5bec-4179-af98-e582f4eee646","555b55b0-e5f8-4c79-9c2e-5456ea269173","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"2168028f-f1d0-4bc9-af01-a5b617a0655f","Title":"Internal Rules - Formal Advisory Opinion Board","Content":"<p> FORMAL ADVISORY OPINION BOARD INTERNAL OPERATING RULES OF PROCEDURE<br> \n<em>(As Amended on April 25, 2023)</em> <br> \n<br> \n<strong>Rule 1. Meetings</strong> <br> \n<br> \n(a) The Chair or Vice-chair of the Formal Advisory Opinion Board (\"Board \") shall determine when and where the meetings of the Board shall occur.<br> \n(b) The Chair shall preside over all meetings of the Board and shall serve until a successor is elected (see Rule 12 below).<br> \n(c) All Board business, including voting on opinions, may be conducted by telephone, e-mail, or other electronic communication device.<br> \n(d) Board members may attend meetings by telephone or other electronic communication device.<br> \n(e) In case of the absence, incapacity, or disqualification of the Chair, the Vice-chair shall assume the duties and powers of the Chair. If both the Chair and Vice-chair are absent or incapacitated, or disqualified from consideration of a matter while a meeting is in session, the remaining members of the Board shall vote upon a member to preside over the meeting or the consideration of the matter at issue.<br> \n<br> \n<strong>Rule 2. Quorum Requirement</strong> <br> \n<br> \nA majority of the members of the Board shall constitute a quorum.<br> \n<br> \n <strong> Rule 2A. Voting Requirements<br>\n </strong> <br> \n(a) Regular Business - Subject to sub-paragraph (b) below, a majority of the members of the Board present and voting shall be required to transact the business of the Board.<br> \n(b) Publication under Bar Rule 4-403 (d) - The affirmative vote of not less than five (5) members of the Board shall be required in order to submit opinions for second publication under Bar Rule 4-403 (d).<br> \n<br> \n<strong>Rule 3. Preliminary Determination of Whether Opinion Should Be Drafted</strong> <br> \n<br> \nWhen the Office of the General Counsel receives a request for a Formal Advisory Opinion, the request shall be forwarded to each member of the Board and placed on the agenda of the next meeting of the Board for preliminary determination of whether a proposed Formal Advisory Opinion should be drafted.<br> \n<br> \n<strong>Rule 4. Assignment of Research and Drafting to Board Members</strong> <br> \n<br> \nThe Chair of the Board shall have complete discretion in assigning requests for Formal Advisory Opinions to members of the Board for researching and drafting proposed opinions. The Office of the General Counsel of the State Bar of Georgia will provide staff assistance in researching and drafting opinions upon request by the Board members assigned to draft a proposed opinion.<br> \n<br> \n<strong>Rule 5. Comments</strong> <br> \n<br> \n(a) Any comment to a proposed Formal Advisory Opinion filed pursuant to Rule 4-403 (c) shall be filed with the Board through the Office of the General Counsel within thirty (30) days of the date that the proposed Formal Advisory Opinion is published in an official publication of the State Bar of Georgia.<br> \n(b) There shall be filed a minimum number of one copy of any comment pursuant to Rule 4-403 (c) in order for the comment to be considered by the Board.<br> \n(c) A copy of the petition for discretionary review filed with the Supreme Court of Georgia pursuant to Rule 4-403 (d) must be simultaneously served upon the Board through the Office of the General Counsel.<br> \n(d) Any comment submitted to the Board pursuant to Rule 4-403 (c) is for the Board's internal use in assessing proposed opinions and shall not be released unless the comment has been submitted to the Supreme Court of Georgia in compliance with Bar Rule 4-403 (d).<br> \n<br> \n<strong>Rule 6. Operating Guidelines</strong> <br> \n<br> \n(a) Upon receipt of a request for a Formal Advisory Opinion, the Office of the General Counsel will assign a file number to the request.<br> \n(b) The Office of the General Counsel will transmit the request to the Board.<br> \n(c) The request will be placed on the agenda of the next Board meeting. The Board should make a determination at the meeting as to whether a formal opinion will be drafted.<br> \n(d) At the same meeting, or immediately thereafter, the Board will assign the request to a Board member for the drafting of a proposed opinion.<br> \n(e) The draft opinion should be prepared and transmitted by the drafter to the members of the Board at least one week prior to the next scheduled meeting of the Board. Address labels will be supplied by the Office of the General Counsel for this purpose.<br> \n(f) At the option of the drafter, the draft opinion will be distributed by the Office of the General Counsel at least ten (10) days prior to the next scheduled meeting of the Board.<br> \n(g) At the meeting, the Board will adopt, reject, or revise the opinion.<br> \n(h) Upon adoption, the opinion will be edited for style and published for comment as provided in Bar Rule 4-403 (c).<br> \n(i) As long as the Board complies with Bar Rules, it may take any action it deems necessary to insure that the opinions continue to provide an accurate interpretation of the Bar's ethical rules.<br> \n<br> \n<strong>Rule 7. Confidentiality</strong> <br> \n<br> \n(a) The name of the lawyer making the request will be held confidential unless the lawyer otherwise elects as provided in Bar Rule 4-403 (g).<br> \n(b) The name of the Board member who has been assigned to draft a proposed opinion will be held confidential unless the Board otherwise elects by majority vote.<br> \n(c) All inquiries regarding Formal Advisory Opinions being considered by the Board should be forwarded to the Chair or Vice Chair.<br> \n<br> \n<strong>Rule 8. E-Mail Voting Procedure</strong> <br> \n<br> \nIt is best that the Board meets and holds live discussions as often as possible. However, the Board, in its discretion, may discuss and vote on matters regarding formal advisory opinions by e-mail, rather than at a meeting of the Board. Matters shall be provided to each member of the Board by e-mail, along with a message directing the Board to participate in a discussion by e-mail. The Board Chair determines when the discussion period will end and call for a vote on the matter. At any time, however, any Board member has \"veto power,\"which allows him or her to call for a \"live discussion.\"<br> \n<br> \n<strong>Rule 9. Presentations to the Board</strong> <br> \n<br> \nPresentations to the Board shall be in writing unless oral presentation is permitted in specific cases by the Board.<br> \n<br> \n<strong>Rule 10. Attendance at Board Meetings</strong> <br> \n<br> \nOnly Board members and Office of the General Counsel staff shall be permitted to attend a Formal Advisory Opinion Board meeting during the deliberations of the Board.<br> \n<br> \n<strong>Rule 11. Contact with the Press</strong> <br> \n<br>\nBoard members may be contacted by members of the press regarding opinions and other Board matters. If contacted, Board members must refrain from communicating with the press and immediately contact the Director of the State Bar's Communications Department at 404-527-8761. In compliance with State Bar policy, all inquiries from the press go through the Communications Department to be routed to the appropriate person.</p>\n<p> <strong>Rule 12. Election of Board Officers</strong></p>\n<p> (a) Pursuant to Bar Rule 4-402 (d), the Board will annually elect a Chair and Vice-chair at the first meeting of the Board after July 1 of each year. At that meeting, the election of the Chair will take place before the election of the Vice-chair. <br> \n(b) Any Board member may nominate themselves to serve as Chair or Vice-chair.<br>\n(c) The newly elected Chair and Vice-chair term of office will begin at the adjournment of the meeting at which they were elected. </p>\n<div></div>","UrlName":"part10","Order":0,"IsRule":false,"Children":[],"ParentId":"555b55b0-e5f8-4c79-9c2e-5456ea269173","Revisions":[],"Ancestors":["555b55b0-e5f8-4c79-9c2e-5456ea269173","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"6e17c812-cd79-45f4-a404-f95b8e7c29b9","Title":"Rule 4-401. Informal Advisory Opinions","Content":"<p>The Office of the General Counsel of the State Bar of Georgia shall be authorized to render Informal Advisory Opinions concerning the Office of the General Counsel's interpretation of the Rules of Professional Conduct or any of the grounds for disciplinary action as applied to a given state of facts. The Informal Advisory Opinion should address prospective conduct and may be issued in oral or written form. An Informal Advisory Opinion is the personal opinion of the issuing attorney of the Office of the General Counsel and is neither a defense to any complaint nor binding on the State Disciplinary Board, the Supreme Court of Georgia, or the State Bar of Georgia. If the person requesting an Informal Advisory Opinion desires, the Office of the General Counsel will transmit the Informal Advisory Opinion to the Formal Advisory Opinion Board for discretionary consideration of the drafting of a Proposed Formal Advisory Opinion.</p>","UrlName":"rule241","Order":0,"IsRule":false,"Children":[],"ParentId":"683b5a52-f773-4015-9985-3f0dc4f364a7","Revisions":[],"Ancestors":["683b5a52-f773-4015-9985-3f0dc4f364a7","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"9352c34c-e065-400d-b993-906e86f9970a","Title":"Rule 4-301","Content":"<p>This rule is reserved.</p>","UrlName":"rule218","Order":0,"IsRule":false,"Children":[],"ParentId":"f720a89a-af9c-4b00-a58e-a5cef19a8f8e","Revisions":[],"Ancestors":["f720a89a-af9c-4b00-a58e-a5cef19a8f8e","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"66411518-34ea-4592-93c8-bbb03b869068","Title":"Rule 4-201. State Disciplinary Board","Content":"<div class=\"handbookNewBodyStyle\"> <ol> \n <li>The powers to investigate and discipline lawyers for violations of the Georgia Rules of Professional Conduct are hereby vested in the State Disciplinary Board.</li> \n <li> The State Disciplinary Board shall consist of the President-elect of the State Bar of Georgia and the President-elect of the Young Lawyers Division of the State Bar of Georgia; six members of the State Bar of Georgia, two from each of the three federal judicial districts of Georgia, appointed by the Supreme Court of Georgia; six members of the State Bar of Georgia, two from each of the three federal judicial districts of Georgia, appointed by the President of the State Bar of Georgia with the approval of the Board of Governors; two nonlawyer members appointed by the Supreme Court of Georgia; and two nonlawyer members appointed by the President of the State Bar of Georgia with the approval of the Board of Governors. The Court and the President of the State Bar of Georgia are encouraged to make appointments that will ensure the geographic, gender, racial, and generational diversity of the State Disciplinary Board. No State Disciplinary Board member may serve for more than two consecutive terms, including a term underway at the time this Rule goes into effect.<br> \n <ol type=\"i\"> \n <li>The President-elect of the State Bar of Georgia and the President-elect of the Young Lawyers Division of the State Bar of Georgia shall serve only during the term of their office, shall serve as members ex officio, and shall not increase the quorum requirement. </li> \n <li>All other members shall be appointed for three-year terms, except as provided in paragraph (b) (3) below. When the term of appointment of a member expires, the seat shall be filled by the appointment of the Supreme Court of Georgia or the President of the State Bar of Georgia with the approval of the Board of Governors, whichever appointed the member whose term has expired.</li> \n <li>Whenever the seat of an appointed member becomes vacant prior to the expiration of the term of appointment, the seat shall be filled for the unexpired term by the appointment of the Supreme Court of Georgia or the President of the State Bar of Georgia, whichever appointed the member whose seat has become vacant. </li> \n <li>The State Disciplinary Board shall remove a member for failure to attend meetings of the State Disciplinary Board or for other good cause, and the seat of a member so removed shall be filled as provided in paragraph (b) (3) above.</li> \n <li>At the first meeting following an Annual Meeting of the State Bar of Georgia the State Disciplinary Board shall elect a Chair and Vice-Chair. </li> \n </ol> \n </li> \n <li>Upon request, State Disciplinary Board members shall be reimbursed for their reasonable travel expenses in attending meetings of the State Disciplinary Board. The Internal Rules of the State Disciplinary Board provide further explanation of the travel and reimbursement policies.</li> \n <li>State Disciplinary Board members may request reimbursement for postage, copying, and other expenses necessary for their work investigating cases.</li> \n </ol> \n<p></p></div>","UrlName":"rule63","Order":0,"IsRule":false,"Children":[],"ParentId":"7c864984-2377-4316-aac4-7f2864903101","Revisions":[{"Id":"07f753ca-7fed-4fb2-a326-4be45d9389ca","ParentId":"66411518-34ea-4592-93c8-bbb03b869068","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <p>The powers to investigate and discipline members of the State Bar of Georgia and those authorized to practice law in Georgia for violations of the Georgia Rules of Professional Conduct set forth in Bar Rule 4-102 are hereby vested in a State Disciplinary Board and a Consumer Assistance Program. The State Disciplinary Board shall consist of two panels. The first panel shall be the Investigative Panel of the State Disciplinary Board (Investigative Panel). The second panel shall be the Review Panel of the State Disciplinary Board (Review Panel). The Consumer Assistance Program shall operate as described in Part XII of these Rules.</p> \n <ol type=\"a\"> \n <li> The Investigative Panel shall consist of the President-elect of the State Bar of Georgia and the President-elect of the Young Lawyers Division of the State Bar of Georgia, one member of the State Bar of Georgia from each judicial district of the State appointed by the President of the State Bar of Georgia with the approval of the Board of Governors of the State Bar of Georgia, one member of the State Bar of Georgia from each judicial district of the State appointed by the Supreme Court of Georgia, one at-large member of the State Bar of Georgia appointed by the Supreme Court, one at-large member of the State Bar of Georgia appointed by the President with the approval of the Board of Governors, and six public members appointed by the Supreme Court to serve as public members of the Panel.\n <ol type=\"1\"> \n <li> All members shall be appointed for three-year terms subject to the following exceptions:\n <ol type=\"i\"> \n <li>any person appointed to fill a vacancy caused by resignation, death, disqualification or disability shall serve only for the unexpired term of the member replaced unless reappointed;</li> \n <li>ex-officio members shall serve during the term of their office; and shall not increase the quorum requirement; and</li> \n <li>certain initial members as set forth in paragraph (2) below.</li> \n </ol> \n </li> \n <li>It shall be the goal of the initial appointments that one-third (1/3) of the terms of the members appointed will expire annually.</li> \n <li>A member may be removed from the Panel pursuant to procedures set by the Panel for failure to attend regular meetings of the Panel. The vacancy shall be filled by appointment of the current President of the State Bar of Georgia.</li> \n <li>The Investigative Panel shall annually elect a chairperson, a vice-chairperson, or a vice-chairperson for any subcommittee for which the chairperson is not a member to serve as chairperson for that subcommittee, and such other officers as it may deem proper. The Panel shall meet in its entirety in July of each year to elect a chairperson. At any time the Panel may decide to divide itself into subcommittees or to consolidate after having divided. A majority shall constitute a quorum and a majority of a quorum shall be authorized to act. However, in any matter in which one or more Investigative Panel members are disqualified, the number of members constituting a quorum shall be reduced by the number of members disqualified from voting on the matter.</li> \n <li>The Investigative Panel is authorized to organize itself into as many subcommittees as the Panel deems necessary to conduct the expeditious investigation of disciplinary matters referred to it by the Office of General Counsel. However, no subcommittee shall consist of fewer than seven (7) members of the Panel and each such subcommittee shall include at least one (1) of the public members.</li> \n </ol> \n </li> \n <li> The Review Panel shall consist of the Immediate Past President of the State Bar, the Immediate Past President of the Young Lawyers Division or a member of the Young Lawyers Division designated by its Immediate Past President, nine (9) members of the State Bar, three (3) from each of the three (3) federal judicial districts of the State appointed as described below, and four (4) public members appointed by the Supreme Court of Georgia.<br> \n <ol type=\"1\"> \n <li>The nine (9) members of the Bar from the federal judicial districts shall be appointed for three (3) year terms so that the term of one Panel member from each district will expire each year. The three (3) vacant positions will be filled in odd years by appointment by the President, with the approval of the Board of Governors, and in even years by appointment by the Supreme Court of Georgia.</li> \n <li>The Panel members serving at the time this Rule goes into effect shall continue to serve until their respective terms expire. New Panel members shall be appointed as set forth above.</li> \n <li>Any person appointed to fill a vacancy caused by resignation, death, disqualification or disability shall serve only for the unexpired term of the member replaced unless reappointed.</li> \n <li>Ex-officio members shall serve during the term or terms of their offices and shall not increase the quorum requirement.</li> \n <li>The Review Panel shall elect a chairperson and such other officers as it may deem proper in July of each year. The presence of six (6) members of the Panel shall constitute a quorum. Four (4) members of the Panel shall be authorized to act except that a recommendation of the Review Panel to suspend or disbar shall require the affirmative vote of at least six (6) members of the Review Panel, with not more than four (4) negative votes. However, in any case in which one or more Review Panel members are disqualified, the number of members constituting a quorum and the number of members necessary to vote affirmatively for disbarment or suspension, shall be reduced by the number of members disqualified from voting on the case. No recommendation of disbarment or suspension may be made by fewer than four (4) affirmative votes. For the purposes of this Rule the recusal of a member shall have the same effect as disqualification.</li> \n </ol> \n </li> \n </ol></div>","UrlName":"revision102"}],"Ancestors":["7c864984-2377-4316-aac4-7f2864903101","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"c083cea2-60f5-4f66-8277-3ce6f50cff7e","Title":"Rule 4-101. Enforcement of the Georgia Rules of Professional Conduct.","Content":"<p>The State Bar of Georgia is hereby authorized to maintain and enforce, as set forth in rules hereinafter stated, Georgia Rules of Professional Conduct to be observed by the members of the State Bar of Georgia and those authorized to practice law in the state of Georgia and to institute disciplinary action in the event of the violation thereof.</p>","UrlName":"rule87","Order":0,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Title":"CHAPTER 1 GEORGIA RULES OF PROFESSIONAL CONDUCT AND ENFORCEMENT THEREOF","Content":"","UrlName":"chapter13","Order":0,"IsRule":false,"Children":[{"Id":"c083cea2-60f5-4f66-8277-3ce6f50cff7e","Title":"Rule 4-101. Enforcement of the Georgia Rules of Professional Conduct.","Content":"<p>The State Bar of Georgia is hereby authorized to maintain and enforce, as set forth in rules hereinafter stated, Georgia Rules of Professional Conduct to be observed by the members of the State Bar of Georgia and those authorized to practice law in the state of Georgia and to institute disciplinary action in the event of the violation thereof.</p>","UrlName":"rule87","Order":0,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"c100d7a1-1008-4ee4-9a01-f7428e7f31c4","Title":"Rule 4-102. Disciplinary Action; Levels of Discipline; Georgia Rules of Professional Conduct.","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>The Georgia Rules of Professional Conduct to be observed by the members of the State Bar of Georgia and those authorized to practice law in Georgia are set forth herein and any violation thereof; any assistance or inducement directed toward another for the purpose of producing a violation thereof; or any violation thereof through the acts of another, shall subject the offender to disciplinary action as hereinafter provided.</li> \n <li> The levels of discipline are set forth below. The power to administer a more severe level of discipline shall include the power to administer the lesser:\n <ol type=\"1\"> \n <li>Disbarment: A form of public discipline that removes the respondent from the practice of law in Georgia. This level of discipline would be appropriate in cases of serious misconduct. This level of discipline includes publication as provided by Bar Rule 4-219 (a).</li> \n <li>Suspension: A form of public discipline that removes the respondent from the practice of law in Georgia for a definite period of time or until satisfaction of certain conditions imposed as a part of the suspension. This level of discipline would be appropriate in cases that merit more than a Public Reprimand but less than disbarment. This level of discipline includes publication as provided by Bar Rule 4-219 (a).</li> \n <li>Public Reprimand: A form of public discipline that declares the respondent's conduct to have been improper but does not limit the right to practice. A Public Reprimand shall be administered by a judge of a superior court in open court. This level of discipline would be appropriate in cases that merit more than a State Disciplinary Review Board Reprimand but less than suspension. This level of discipline includes publication as provided by Bar Rule 4-219 (a).</li> \n <li>State Disciplinary Review Board Reprimand: A form of public discipline which declares the respondent's conduct to have been improper but does not limit the right to practice. A State Disciplinary Review Board Reprimand shall be administered by the State Disciplinary Review Board at a meeting of the State Disciplinary Review Board. This level of discipline would be appropriate in cases that merit more than a Confidential Reprimand but less than a Public Reprimand. This level of discipline includes publication on the official State Bar of Georgia website as provided by Bar Rule 4-219 (a).</li> \n <li>Confidential Reprimand: A form of confidential discipline that declares the respondent's conduct to have been improper but does not limit the right to practice. A Confidential Reprimand shall be administered by the State Disciplinary Board at a meeting of the Board. This level of discipline would be appropriate in cases that merit more than a Formal Letter of Admonition but less than a State Disciplinary Review Board Reprimand.</li> \n <li>Formal Letter of Admonition: A form of confidential discipline that declares the respondent's conduct to have been improper but does not limit the right to practice. A Formal Letter of Admonition shall be administered by letter as provided in Bar Rules 4-205 through 4-208. This level of discipline would be appropriate in cases that merit the lowest form of discipline.</li> \n </ol> \n </li> \n <li> \n <ol> \n <li>The Supreme Court of Georgia may impose any of the levels of discipline set forth above following formal proceedings against a respondent; however, any case where discipline is imposed by the court is a matter of public record despite the fact that the level of discipline would have been confidential if imposed by the State Disciplinary Board.</li> \n <li>As provided in Part IV, Chapter 2 of the State Bar Rules, the State Disciplinary Board may impose any of the levels of discipline set forth above provided that a respondent shall have the right to reject the imposition of discipline by the Board pursuant to the provisions of Bar Rule 4-208.3;</li> \n </ol> \n </li> \n <li>The Table of Contents, Preamble, Scope, Terminology and Definitions and Georgia Rules of Professional Conduct are as follows:</li> \n </ol> \n<p style=\"text-align: center\"></p> \n <p style=\"text-align: center\"> <strong>Contents</strong> </p> \n <p style=\"margin-left: 40px\"> Preamble, Scope and Terminology<br> \n<br> \n<em>Rules: Client-Lawyer Relationship</em> <br> \n <br> \n1.0 Terminology<br> \n1.1 Competence<br> \n1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer<br> \n1.3 Diligence<br> \n1.4 Communication<br> \n1.5 Fees<br> \n1.6 Confidentiality of Information<br> \n1.7 Conflict of Interest: General Rule<br> \n1.8 Conflict of Interest: Prohibited Transactions<br> \n1.9 Conflict of Interest: Former Client<br> \n1.10 Imputed Disqualification: General Rule<br> \n1.11 Successive Government and Private Employment<br> \n1.12 Former Judge or Arbitrator<br> \n1.13 Organization as Client <br> \n1.14 Client With Diminished Capacity<br> \n1.15(I) Safekeeping Property - General<br> \n1.15(II) Safekeeping Property - Trust Account and IOLTA<br> \n1.15(III) Record Keeping; Trust Account Overdraft Notification; Examination of Records<br> \n1.16 Declining or Terminating Representation<br> \n1.17 Sale of Law Practice<br> \n1.18 Duties to Prospective Client<br> \n<br> \n <em>Counselor</em> <br> \n<br> \n2.1 Advisor<br> \n2.2 (This Rule is Reserved)<br> \n2.3 Evaluation for Use by Third Persons<br> \n2.4 Lawyer Serving as a Third Party Neutral<br> \n<br> \n <em>Advocate</em> <br> \n<br> \n3.1 Meritorious Claims and Contentions <br> \n3.2 Expediting Litigation<br> \n3.3 Candor toward the Tribunal<br> \n3.4 Fairness to Opposing Party and Counsel<br> \n3.5 Impartiality and Decorum of the Tribunal<br> \n3.6 Trial Publicity<br> \n3.7 Lawyer as Witness<br> \n3.8 Special Responsibilities of a Prosecutor<br> \n3.9 Advocate in Nonadjudicative Proceedings<br> \n<br> \n <em>Transactions with Persons Other Than Clients</em> <br> \n <br> \n4.1 Truthfulness in Statements to Others<br> \n4.2 Communication with Person Represented by Counsel<br> \n4.3 Dealing with Unrepresented Person<br> \n4.4 Respect for Rights of Third Persons<br> \n<br> \n <em>Law Firms and Associations</em> <br> \n<br> \n5.1 Responsibilities of a Partner or Supervisory Lawyer<br> \n5.2 Responsibilities of a Subordinate Lawyer<br> \n5.3 Responsibilities Regarding Nonlawyer Assistants<br> \n5.4 Professional Independence of a Lawyer<br> \n5.5 Unauthorized Practice of Law: Multijurisdictional Practice of Law<br> \n5.6 Restrictions on Right to Practice<br> \n5.7 Responsibilities Regarding Law-related Services<br> \n<br> \n <em>Public Service</em> <br> \n<br> \n6.1 Voluntary Pro Bono Publico Service<br> \n6.2 Accepting Appointments<br> \n6.3 Membership in Legal Services Organization<br> \n6.4 Law Reform Activities Affecting Client Interests<br> \n<br> \n <em>Information About Legal Services</em> <br> \n<br> \n7.1 Communications Concerning a Lawyer’s Services<br> \n7.2 Advertising<br> \n7.3 Direct Contact with Prospective Clients<br> \n7.4 Communication of Fields of Practice<br> \n7.5 Firm Names and Letterheads<br> \n<br> \n <em>Maintaining the Integrity of the Profession</em> <br> \n<br> \n8.1 Bar Admission and Disciplinary Matters<br> \n8.2 Judicial and Legal Officials<br> \n8.3 Reporting Professional Misconduct<br> \n8.4 Misconduct<br> \n8.5 Disciplinary Authority; Choice of Law<br> \n<br> \n <em>Miscellaneous</em> <br> \n<br> \n9.1 Reporting Requirements<br> \n9.2 Restrictions on Filing Disciplinary Complaints<br> \n9.3 Cooperation with Disciplinary Authorities<br> \n9.4 Jurisdiction and Reciprocal Discipline<br>\n9.5 Lawyer as a Public Official </p></div>","UrlName":"rule89","Order":1,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"fcbf296b-3b7c-44ee-beae-70f2bc53cab4","ParentId":"c100d7a1-1008-4ee4-9a01-f7428e7f31c4","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>The Rules of Professional Conduct to be observed by the members of the State Bar of Georgia and those authorized to practice law in Georgia are set forth herein and any violation thereof; any assistance or inducement directed toward another for the purpose of producing a violation thereof; or any violation thereof through the acts of another, shall subject the offender to disciplinary action as hereinafter provided.</li> \n <li> The levels of discipline are set forth below. The power to administer a more severe level of discipline shall include the power to administer the lesser:\n <ol type=\"1\"> \n <li>Disbarment: A form of public discipline removing the respondent from the practice of law in Georgia. This level of discipline would be appropriate in cases of serious misconduct. This level of discipline includes publication as provided by Rule 4-219(b).</li> \n <li>Suspension: A form of public discipline which removes the respondent from the practice of law in Georgia for a definite period of time or until satisfaction of certain conditions imposed as a part of the suspension. This level of discipline would be appropriate in cases that merit more than a public reprimand but less than disbarment. This level of discipline includes publication as provided by Rule 4-219(b).</li> \n <li>Public Reprimand: A form of public discipline which declares the respondent's conduct to have been improper but does not limit the right to practice. A public reprimand shall be administered by a judge of a superior court in open court. This level of discipline would be appropriate in cases that merit more than a review panel reprimand but less than suspension.</li> \n <li>Review Panel Reprimand: A form of public discipline which declares the respondent's conduct to have been improper but does not limit the right to practice. A Review Panel Reprimand shall be administered by the Review Panel at a meeting of the Review Panel. This level of discipline would be appropriate in cases that merit more than an investigative panel reprimand but less than a public reprimand.</li> \n <li>Investigative Panel Reprimand: A form of confidential discipline which declares the respondent's conduct to have been improper but does not limit the right to practice. An Investigative Panel Reprimand shall be administered by the Investigative Panel at a meeting of the Investigative Panel. This level of discipline would be appropriate in cases that merit more than a formal admonition but less than a review panel reprimand.</li> \n <li>Formal Admonition: A form of confidential discipline which declares the respondent's conduct to have been improper but does not limit the right to practice. A formal admonition shall be administered by letter as provided in Rules 4-205 through 4-208. This level of discipline would be appropriate in cases that merit the lowest form of discipline.</li> \n </ol> \n </li> \n <li> \n <ol> \n <li>The Supreme Court of Georgia may impose any of the levels of discipline set forth above following formal proceedings against a respondent; however, any case where discipline is imposed by the Court is a matter of public record despite the fact that the level of discipline would have been confidential if imposed by the Investigative Panel of the State Disciplinary Board.</li> \n <li>As provided in Part IV, Chapter 2 of the State Bar Rules, the Investigative Panel of the State Disciplinary Board may impose any of the levels of discipline set forth above provided that a respondent shall have the right to reject the imposition of discipline by the Investigative Panel pursuant to the provisions of Rule 4-208.3;</li> \n </ol> \n </li> \n <li>The Table of Contents, Preamble, Scope, Terminology and Georgia Rules of Professional Conduct are as follows:</li> \n </ol> \n <p style=\"text-align: center\"> <strong>Contents</strong> </p> \n <p style=\"margin-left: 40px\"> Preamble, Scope and Terminology<br> \n<br> \n<em>Rules: Client-Lawyer Relationship</em> <br> \n <br> \n1.0 Terminology<br> \n1.1 Competence<br> \n1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer<br> \n1.3 Diligence<br> \n1.4 Communication<br> \n1.5 Fees<br> \n1.6 Confidentiality of Information<br> \n1.7 Conflict of Interest: General Rule<br> \n1.8 Conflict of Interest: Prohibited Transactions<br> \n1.9 Conflict of Interest: Former Client<br> \n1.10 Imputed Disqualification: General Rule<br> \n1.11 Successive Government and Private Employment<br> \n1.12 Former Judge or Arbitrator<br> \n1.13 Organization as Client <br> \n1.14 Client With Diminished Capacity<br> \n1.15(I) Safekeeping Property - General<br> \n1.15(II) Safekeeping Property - Trust Account and IOLTA<br> \n1.15(III) Record Keeping; Trust Account Overdraft Notification; Examination of Records<br> \n1.16 Declining or Terminating Representation<br> \n1.17 Sale of Law Practice<br> \n<br> \n <em>Counselor</em> <br> \n<br> \n2.1 Advisor<br> \n2.2 (This Rule is Reserved)<br> \n2.3 Evaluation for Use by Third Persons<br> \n2.4 Lawyer Serving as a Third Party Neutral<br> \n<br> \n <em>Advocate</em> <br> \n<br> \n3.1 Meritorious Claims and Contentions <br> \n3.2 Expediting Litigation<br> \n3.3 Candor toward the Tribunal<br> \n3.4 Fairness to Opposing Party and Counsel<br> \n3.5 Impartiality and Decorum of the Tribunal<br> \n3.6 Trial Publicity<br> \n3.7 Lawyer as Witness<br> \n3.8 Special Responsibilities of a Prosecutor<br> \n3.9 Advocate in Nonadjudicative Proceedings<br> \n<br> \n <em>Transactions with Persons Other Than Clients</em> <br> \n <br> \n4.1 Truthfulness in Statements to Others<br> \n4.2 Communication with Person Represented by Counsel<br> \n4.3 Dealing with Unrepresented Person<br> \n4.4 Respect for Rights of Third Persons<br> \n<br> \n <em>Law Firms and Associations</em> <br> \n<br> \n5.1 Responsibilities of a Partner or Supervisory Lawyer<br> \n5.2 Responsibilities of a Subordinate Lawyer<br> \n5.3 Responsibilities Regarding Nonlawyer Assistants<br> \n5.4 Professional Independence of a Lawyer<br> \n5.5 Unauthorized Practice of Law: Multijurisdictional Practice of Law<br> \n5.6 Restrictions on Right to Practice<br> \n5.7 Responsibilities Regarding Law-related Services<br> \n<br> \n <em>Public Service</em> <br> \n<br> \n6.1 Voluntary Pro Bono Publico Service<br> \n6.2 Accepting Appointments<br> \n6.3 Membership in Legal Services Organization<br> \n6.4 Law Reform Activities Affecting Client Interests<br> \n<br> \n <em>Information About Legal Services</em> <br> \n<br> \n7.1 Communications Concerning a Lawyer’s Services<br> \n7.2 Advertising<br> \n7.3 Direct Contact with Prospective Clients<br> \n7.4 Communication of Fields of Practice<br> \n7.5 Firm Names and Letterheads<br> \n<br> \n <em>Maintaining the Integrity of the Profession</em> <br> \n<br> \n8.1 Bar Admission and Disciplinary Matters<br> \n8.2 Judicial and Legal Officials<br> \n8.3 Reporting Professional Misconduct<br> \n8.4 Misconduct<br> \n8.5 Disciplinary Authority; Choice of Law<br> \n<br> \n <em>Miscellaneous</em> <br> \n<br> \n9.1 Reporting Requirements<br> \n9.2 Restrictions on Filing Disciplinary Complaints<br> \n9.3 Cooperation with Disciplinary Authorities<br> \n9.4 Jurisdiction and Reciprocal Discipline<br>\n9.5 Lawyer as a Public Official </p></div>","UrlName":"revision46"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"7daabdf1-451a-49d1-9f0f-ad03812aabe1","Title":"Contents","Content":"<p> <em>Rules: Client-Lawyer Relationship</em> <br> \n<br> \n1.0 Terminology and Definitions<br> \n1.1 Competence<br> \n1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer<br> \n1.3 Diligence<br> \n1.4 Communication<br> \n1.5 Fees<br> \n1.6 Confidentiality of Information<br> \n1.7 Conflict of Interest: General Rule<br> \n1.8 Conflict of Interest: Prohibited Transactions<br> \n1.9 Conflict of Interest: Former Client<br> \n1.10 Imputed Disqualification: General Rule<br> \n1.11 Successive Government and Private Employment<br> \n1.12 Former Judge or Arbitrator<br> \n1.13 Organization as Client<br> \n1.14 Client under a Disability<br> \n1.15(I) Safekeeping Property - General<br> \n1.15(II) Safekeeping Property - Trust Account and IOLTA<br> \n1.15(III) Record Keeping; Trust Account Overdraft Notification; Examination of Records<br> \n1.16 Declining or Terminating Representation<br> \n1.17 Sale of Law Practice<br> \n1.18 Duties to Prospective Client<br> \n<br> \n<em>Counselor</em> <br> \n<br> \n2.1 Advisor<br> \n2.2 (This rule is reserved.)<br> \n2.3 Evaluation for Use by Third Persons<br> \n<br> \n<em>Advocate</em> <br> \n<br> \n3.1 Meritorious Claims and Contentions<br> \n3.2 Expediting Litigation<br> \n3.3 Candor toward the Tribunal<br> \n3.4 Fairness to Opposing Party and Counsel<br> \n3.5 Impartiality and Decorum of the Tribunal<br> \n3.6 Trial Publicity<br> \n3.7 Lawyer as Witness<br> \n3.8 Special Responsibilities of a Prosecutor<br> \n3.9 Advocate in Nonadjudicative Proceedings<br> \n<br> \n<em>Transactions with Persons Other Than Clients</em> <br> \n<br> \n4.1 Truthfulness in Statements to Others<br> \n4.2 Communication with Person Represented by Counsel<br> \n4.3 Dealing with Unrepresented Person<br> \n4.4 Respect for Rights of Third Persons<br> \n<br> \n<em>Law Firms and Associations</em> <br> \n<br> \n5.1 Responsibilities of Partners, Managers and Supervisory Lawyers<br> \n5.2 Responsibilities of a Subordinate Lawyer<br> \n5.3 Responsibilities Regarding Nonlawyer Assistants<br> \n5.4 Professional Independence of a Lawyer<br> \n5.5 Unauthorized Practice of Law; Multi-Jurisdictional Practice of Law<br> \n5.6 Restrictions on Right to Practice<br> \n5.7 Responsibilities Regarding Law-related Services<br> \n<br> \n<em>Public Service</em> <br> \n<br> \n6.1 Voluntary Pro Bono Public Service<br> \n6.2 Accepting Appointments<br> \n6.3 Membership in Legal Services Organization<br> \n6.4 Law Reform Activities Affecting Client Interests<br>\n6.5 Nonprofit and Court-Annexed Limited Legal Services Programs</p>\n<p> <em>Information About Legal Services</em> <br> \n<br> \n7.1 Communications Concerning a Lawyer's Services<br> \n7.2 Advertising<br> \n7.3 Direct Contact with Prospective Clients<br> \n7.4 Communication of Fields of Practice<br> \n7.5 Firm Names and Letterheads<br> \n<br> \n<em>Maintaining the Integrity of the Profession</em> <br> \n<br> \n8.1 Bar Admission and Disciplinary Matters<br> \n8.2 Judicial and Legal Officials<br> \n8.3 Reporting Professional Misconduct<br> \n8.4 Misconduct<br> \n8.5 Disciplinary Authority; Choice of Law<br> \n<br> \n<em>Miscellaneous</em> <br> \n<br> \n9.1 Reporting Requirements<br> \n9.2 Restrictions on Filing Disciplinary Complaints<br> \n9.3 Cooperation with Disciplinary Authorities<br> \n9.4 Jurisdiction and Reciprocal Discipline<br>\n9.5 Lawyer as a Public Official</p>","UrlName":"rule70","Order":2,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"3254fea5-c24d-461b-8a15-5530a31eed26","Title":"PREAMBLE: A LAWYER'S RESPONSIBILITIES","Content":"<p> [1] A lawyer is a representative of clients, an officer of the legal system and a citizen having special responsibility for the quality of justice.<br> \n<br> \n[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others.<br> \n<br> \n[3] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the these rules or other law.<br> \n<br> \n[4] A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the law, the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.<br> \n<br> \n[5] As a citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.<br> \n<br> \n[6] A lawyer's professional responsibilities are prescribed in the Georgia Rules of Professional Conduct, as well as by substantive and procedural law. A lawyer also is guided by conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.<br> \n<br> \n[7] Reserved.<br> \n<br> \n[8] In the nature of law practice conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict among a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person. The Georgia Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.<br> \n<br> \n[9] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested in the Supreme Court of Georgia.<br> \n<br> \n[10] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.<br> \n<br> \n[11] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Georgia Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.<br> \n<br>\n[12] The fulfillment of a lawyer's professional responsibility role requires an understanding by them of their relationship to our legal system. The Georgia Rules of Professional Conduct, when properly applied, serve to define that relationship.</p>","UrlName":"rule74","Order":3,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"9afa4c06-904a-4b16-94e0-40aa21e2a658","Title":"SCOPE","Content":"<p> [13] The Georgia Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the rules are imperatives, cast in the terms \"shall \"or \"shall not.\"These define proper conduct for purposes of professional discipline. Others, generally cast in the terms \"may \"or \"should,\"are permissive or aspirational and define areas under the rules in which the lawyer has professional discretion. Disciplinary action shall not be taken when the lawyer's conduct falls within the bounds of such discretion. The rules are thus partly obligatory and disciplinary and partly aspirational and descriptive. Together they define a lawyer's professional role. Comments do not add obligations to or expand the rules but provide guidance for practicing in compliance with the rules.<br> \n<br> \n[14] The rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. Compliance with the rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The rules simply provide a framework for the ethical practice of law.<br> \n<br> \n[15] Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Bar Rule 1.6: Confidentiality of Information, that may attach when the lawyer agrees to consider whether a client-lawyer relationship will be established. Whether a client-lawyer relationship exists for any specific purpose depends on the circumstances and may be a question of fact.<br> \n<br> \n[16] Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government entity may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized by law to represent several government entities in intergovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. They also may have authority to represent the \"public interest \"in circumstances where a private lawyer would not be authorized to do so. These rules do not abrogate any such authority.<br> \n<br> \n[17] Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.<br> \n<br> \n[18] The purpose of these rules is not to give rise to a cause of action nor to create a presumption that a legal duty has been breached. These rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.<br> \n<br> \n[19] Moreover, these rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege. In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The fact that in exceptional situations the lawyer under the rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges.<br> \n<br> \n[20]<strong>Reserved.</strong> <br> \n<br>\n[21] The comment accompanying each rule explains and illustrates the meaning and purpose of the rule. The preamble and this note on scope provide general orientation. The comments are intended as guides to interpretation, but the text of each rule is authoritative.</p>","UrlName":"rule220","Order":4,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"c936147c-d950-44cb-bab7-f2410666d768","Title":"RULE 1.0. TERMINOLOGY AND DEFINITIONS.","Content":"<div class=\"handbookNewBodyStyle\"> <ol> \n <li>“Belief” or “believes” denotes that the person involved actually thought the fact in question to be true. A person’s belief may be inferred from the circumstances.</li> \n <li>“Confidential Proceedings” denotes any proceeding under these rules which occurs prior to a filing in the Supreme Court of Georgia.</li> \n <li>“Confirmed in writing” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person, or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (l) 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.</li> \n <li>“Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.</li> \n <li> “Conviction” or “convicted” denotes any of the following accepted by a court, whether or not a sentence has been imposed:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> a guilty plea; </li> \n <li> <span style=\"white-space: pre\">\t</span> a plea of nolo contendere; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty but mentally ill; or </li> \n <li> <span style=\"white-space: pre\">\t</span> A plea entered under the Georgia First Offender Act, OCGA § 42-8-60 et seq., or a substantially similar statute in Georgia or another jurisdiction. </li> \n </ol> \n </li> \n <li>“Domestic Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any state or territory of the United States or the District of Columbia but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Firm” or “law firm” denotes a lawyer or lawyers in a private firm, law partnership, professional corporation, sole proprietorship or other association authorized to practice law pursuant to Bar Rule 1-203 (d); or lawyers employed in a legal services organization or the legal department of a corporation or other organization.</li> \n <li>“Foreign Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any foreign nation but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive; not merely negligent misrepresentation or failure to apprise another of relevant information.</li> \n <li>“Grievance” denotes an allegation of unethical conduct filed against a lawyer.</li> \n <li>“He,” “Him” or “His” denotes generic pronouns including both male and female.</li> \n <li>“Informed consent” denotes the agreement by a person 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.</li> \n <li>“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances.</li> \n <li>“Lawyer” denotes a person authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia including persons admitted to practice in this state pro hac vice.</li> \n <li>“Memorandum of Grievance” denotes an allegation of unethical conduct against a lawyer filed in writing with the Office of the General Counsel and containing the name and signature of the complainant or initiated pursuant to Rule 4-203 (2).</li> \n <li> “Nonlawyer” denotes a person not authorized to practice law by either the:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> Supreme Court of Georgia or its rules (including pro hac vice admission), or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any other state or territory of the United States, or the District of Columbia, or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any foreign nation. </li> \n </ol> \n </li> \n <li>“Notice of Discipline” denotes a notice by the State Disciplinary Board that the respondent will be subject to a disciplinary sanction for violation of one or more Georgia Rules of Professional Conduct unless the respondent affirmatively rejects the notice.</li> \n <li>“Partner” denotes a member of a partnership, a shareholder in a law firm organized pursuant to Bar Rule 1-203 (d), or a member of an association authorized to practice law. </li> \n <li>“Petition for Voluntary Surrender of License” denotes a Petition for Voluntary Discipline in which the respondent voluntarily surrenders his license to practice law in this state. A voluntary surrender of license is tantamount to disbarment.</li> \n <li>“Probable Cause” denotes a finding by the State Disciplinary Board that there is sufficient evidence to believe that the respondent has violated one or more of the provisions of Part IV, Chapter 1 of the rules. </li> \n <li>\"Prospective Client \"denotes a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.</li> \n <li>“Public Proceedings” denotes any proceeding under these rules that has been filed with the Supreme Court of Georgia.</li> \n <li>“Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.</li> \n <li>“Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.</li> \n <li>“Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.</li> \n <li>“Respondent” denotes a person whose conduct is the subject of any disciplinary investigation or proceeding.</li> \n </ol> \n <div style=\"margin-left: 40px\"> \n <p> (aa) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.<br> \n(bb) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.<br> \n(cc) “Tribunal” denotes a court, an arbitrator in an 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 legal judgment directly affecting a party's interests in a particular matter.<br> \n(dd) “Willfull blindness” denotes awareness of a high probability that a fact exists and deliberate action to avoid learning of the fact.<br>\n(ee) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including but not limited to handwriting, typewriting, printing, photostating, photography, audio or video recording and electronic communications. 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. </p> \n </div> \n<div>Comment</div> \n<p>[1] Bar Rule 4-110 includes additional definitions for terminology used in the procedural section of these rules.</p> \n<p>Confirmed in Writing</p> \n<p>[1A] 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.</p> \n<p>Firm</p> \n<p>[2] Whether two or more lawyers constitute a firm within paragraph (e) 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. 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. 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.</p> \n<p>[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 Georgia 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.</p> \n<p>[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.</p> \n<p>Fraud</p> \n<p>[5] When used in these rules, the terms \"fraud \"or \"fraudulent \"refers 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.</p> \n<p>Informed Consent</p> \n<p>[6] Many of the Georgia 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.</p> \n <p> [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. <em>See Rules 1.7 (b) and 1.9 (a)</em> . For a definition of \"writing \"and \"confirmed in writing,\"see paragraphs (s) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. <em>See, e.g., Rules 1.8 (a) (3) and (g)</em> . For a definition of \"signed,\"see paragraph (s). </p> \n<p>Screened</p> \n<p>[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 and 1.12.</p> \n<p>[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.</p> \n<p>[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.</p> \n<p>Writing</p> \n <p> [11] The purpose of this definition is to permit a lawyer to use developing technologies that maintain an objective record of a communication that does not rely upon the memory of the lawyer or any other person. <em>See OCGA § 10-12-2(8).</em> </p></div>","UrlName":"rule223","Order":5,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"0915bda9-a785-4194-b214-12b0666b9fa8","ParentId":"c936147c-d950-44cb-bab7-f2410666d768","Title":"Version 3","Content":"<div class=\"handbookNewBodyStyle\"> <ol> \n <li>“Belief” or “believes” denotes that the person involved actually thought the fact in question to be true. A person’s belief may be inferred from the circumstances.</li> \n <li>“Confidential Proceedings” denotes any proceeding under these rules which occurs prior to a filing in the Supreme Court of Georgia.</li> \n <li>“Confirmed in writing” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person, or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (l) 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.</li> \n <li>“Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.</li> \n <li> “Conviction” or “convicted” denotes any of the following accepted by a court, whether or not a sentence has been imposed:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> a guilty plea; </li> \n <li> <span style=\"white-space: pre\">\t</span> a plea of nolo contendere; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty but mentally ill; or </li> \n <li> <span style=\"white-space: pre\">\t</span> A plea entered under the Georgia First Offender Act, OCGA § 42-8-60 et seq., or a substantially similar statute in Georgia or another jurisdiction. </li> \n </ol> \n </li> \n <li>“Domestic Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any state or territory of the United States or the District of Columbia but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Firm” or “law firm” denotes a lawyer or lawyers in a private firm, law partnership, professional corporation, sole proprietorship or other association authorized to practice law pursuant to Bar Rule 1-203 (d); or lawyers employed in a legal services organization or the legal department of a corporation or other organization.</li> \n <li>“Foreign Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any foreign nation but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive; not merely negligent misrepresentation or failure to apprise another of relevant information.</li> \n <li>“Grievance/Memorandum of Grievance” denotes an allegation of unethical conduct filed against a lawyer.</li> \n <li>“He,” “Him” or “His” denotes generic pronouns including both male and female.</li> \n <li>“Informed consent” denotes the agreement by a person 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.</li> \n <li>“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances.</li> \n <li>“Lawyer” denotes a person authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia including persons admitted to practice in this state pro hac vice.</li> \n <li> “Nonlawyer” denotes a person not authorized to practice law by either the:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> Supreme Court of Georgia or its rules (including pro hac vice admission), or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any other state or territory of the United States, or the District of Columbia, or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any foreign nation. </li> \n </ol> \n </li> \n <li>“Notice of Discipline” denotes a notice by the State Disciplinary Board that the respondent will be subject to a disciplinary sanction for violation of one or more Georgia Rules of Professional Conduct unless the respondent affirmatively rejects the notice.</li> \n <li>“Partner” denotes a member of a partnership, a shareholder in a law firm organized pursuant to Bar Rule 1-203 (d), or a member of an association authorized to practice law. </li> \n <li>“Petition for Voluntary Surrender of License” denotes a Petition for Voluntary Discipline in which the respondent voluntarily surrenders his license to practice law in this state. A voluntary surrender of license is tantamount to disbarment.</li> \n <li>“Probable Cause” denotes a finding by the State Disciplinary Board that there is sufficient evidence to believe that the respondent has violated one or more of the provisions of Part IV, Chapter 1 of the rules. </li> \n <li>\"Prospective Client \"denotes a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.</li> \n <li>“Public Proceedings” denotes any proceeding under these rules that has been filed with the Supreme Court of Georgia.</li> \n <li>“Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.</li> \n <li>“Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.</li> \n <li>“Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.</li> \n <li>“Respondent” denotes a person whose conduct is the subject of any disciplinary investigation or proceeding.</li> \n <li>“Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.</li> \n <li>“Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.</li> \n <li>“Tribunal” denotes a court, an arbitrator in an 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 legal judgment directly affecting a party's interests in a particular matter.</li> \n <li>“Writing” or “written” denotes a tangible or electronic record of a communication or representation, including but not limited to handwriting, typewriting, printing, photostating, photography, audio or video recording and electronic communications. 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.</li> \n </ol> \n<div>Comment</div> \n<p>[1] Bar Rule 4-110 includes additional definitions for terminology used in the procedural section of these rules.</p> \n<p>Confirmed in Writing</p> \n<p>[1A] 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.</p> \n<p>Firm</p> \n<p>[2] Whether two or more lawyers constitute a firm within paragraph (e) 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. 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. 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.</p> \n<p>[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 Georgia 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.</p> \n<p>[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.</p> \n<p>Fraud</p> \n<p>[5] When used in these rules, the terms \"fraud \"or \"fraudulent \"refers 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.</p> \n<p>Informed Consent</p> \n<p>[6] Many of the Georgia 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.</p> \n <p> [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. <em>See Rules 1.7 (b) and 1.9 (a)</em> . For a definition of \"writing \"and \"confirmed in writing,\"see paragraphs (s) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. <em>See, e.g., Rules 1.8 (a) (3) and (g)</em> . For a definition of \"signed,\"see paragraph (s). </p> \n<p>Screened</p> \n<p>[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 and 1.12.</p> \n<p>[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.</p> \n<p>[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.</p> \n<p>Writing</p> \n <p> [11] The purpose of this definition is to permit a lawyer to use developing technologies that maintain an objective record of a communication that does not rely upon the memory of the lawyer or any other person. <em>See OCGA § 10-12-2(8).</em> </p></div>","UrlName":"revision294"},{"Id":"06d293c8-0303-4a5f-bb02-1426dc98b877","ParentId":"c936147c-d950-44cb-bab7-f2410666d768","Title":"Version 5","Content":"<div class=\"handbookNewBodyStyle\"> <ol> \n <li>“Belief” or “believes” denotes that the person involved actually thought the fact in question to be true. A person’s belief may be inferred from the circumstances.</li> \n <li>“Confidential Proceedings” denotes any proceeding under these rules which occurs prior to a filing in the Supreme Court of Georgia.</li> \n <li>“Confirmed in writing” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person, or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (l) 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.</li> \n <li>“Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.</li> \n <li> “Conviction” or “convicted” denotes any of the following accepted by a court, whether or not a sentence has been imposed:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> a guilty plea; </li> \n <li> <span style=\"white-space: pre\">\t</span> a plea of nolo contendere; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty but mentally ill; or </li> \n <li> <span style=\"white-space: pre\">\t</span> A plea entered under the Georgia First Offender Act, OCGA § 42-8-60 et seq., or a substantially similar statute in Georgia or another jurisdiction. </li> \n </ol> \n </li> \n <li>“Domestic Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any state or territory of the United States or the District of Columbia but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Firm” or “law firm” denotes a lawyer or lawyers in a private firm, law partnership, professional corporation, sole proprietorship or other association authorized to practice law pursuant to Bar Rule 1-203 (d); or lawyers employed in a legal services organization or the legal department of a corporation or other organization.</li> \n <li>“Foreign Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any foreign nation but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive; not merely negligent misrepresentation or failure to apprise another of relevant information.</li> \n <li>“Grievance” denotes an allegation of unethical conduct filed against a lawyer.</li> \n <li>“He,” “Him” or “His” denotes generic pronouns including both male and female.</li> \n <li>“Informed consent” denotes the agreement by a person 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.</li> \n <li>“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances.</li> \n <li>“Lawyer” denotes a person authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia including persons admitted to practice in this state pro hac vice.</li> \n <li>“Memorandum of Grievance” denotes an allegation of unethical conduct against a lawyer filed in writing with the Office of the General Counsel and containing the name and signature of the complainant or initiated pursuant to Rule 4-203 (2).</li> \n <li> “Nonlawyer” denotes a person not authorized to practice law by either the:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> Supreme Court of Georgia or its rules (including pro hac vice admission), or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any other state or territory of the United States, or the District of Columbia, or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any foreign nation. </li> \n </ol> \n </li> \n <li>“Notice of Discipline” denotes a notice by the State Disciplinary Board that the respondent will be subject to a disciplinary sanction for violation of one or more Georgia Rules of Professional Conduct unless the respondent affirmatively rejects the notice.</li> \n <li>“Partner” denotes a member of a partnership, a shareholder in a law firm organized pursuant to Bar Rule 1-203 (d), or a member of an association authorized to practice law. </li> \n <li>“Petition for Voluntary Surrender of License” denotes a Petition for Voluntary Discipline in which the respondent voluntarily surrenders his license to practice law in this state. A voluntary surrender of license is tantamount to disbarment.</li> \n <li>“Probable Cause” denotes a finding by the State Disciplinary Board that there is sufficient evidence to believe that the respondent has violated one or more of the provisions of Part IV, Chapter 1 of the rules. </li> \n <li>\"Prospective Client \"denotes a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.</li> \n <li>“Public Proceedings” denotes any proceeding under these rules that has been filed with the Supreme Court of Georgia.</li> \n <li>“Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.</li> \n <li>“Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.</li> \n <li>“Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.</li> \n <li>“Respondent” denotes a person whose conduct is the subject of any disciplinary investigation or proceeding.</li> \n </ol> \n <div style=\"margin-left: 40px\"> \n <p> (aa) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.<br> \n(bb) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.<br> \n(cc) “Tribunal” denotes a court, an arbitrator in an 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 legal judgment directly affecting a party's interests in a particular matter.<br>\n(dd) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including but not limited to handwriting, typewriting, printing, photostating, photography, audio or video recording and electronic communications. 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. </p> \n </div> \n<div>Comment</div> \n<p>[1] Bar Rule 4-110 includes additional definitions for terminology used in the procedural section of these rules.</p> \n<p>Confirmed in Writing</p> \n<p>[1A] 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.</p> \n<p>Firm</p> \n<p>[2] Whether two or more lawyers constitute a firm within paragraph (e) 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. 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. 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.</p> \n<p>[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 Georgia 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.</p> \n<p>[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.</p> \n<p>Fraud</p> \n<p>[5] When used in these rules, the terms \"fraud \"or \"fraudulent \"refers 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.</p> \n<p>Informed Consent</p> \n<p>[6] Many of the Georgia 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.</p> \n <p> [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. <em>See Rules 1.7 (b) and 1.9 (a)</em> . For a definition of \"writing \"and \"confirmed in writing,\"see paragraphs (s) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. <em>See, e.g., Rules 1.8 (a) (3) and (g)</em> . For a definition of \"signed,\"see paragraph (s). </p> \n<p>Screened</p> \n<p>[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 and 1.12.</p> \n<p>[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.</p> \n<p>[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.</p> \n<p>Writing</p> \n <p> [11] The purpose of this definition is to permit a lawyer to use developing technologies that maintain an objective record of a communication that does not rely upon the memory of the lawyer or any other person. <em>See OCGA § 10-12-2(8).</em> </p></div>","UrlName":"revision409"},{"Id":"bc1a4859-b8c4-4f17-8fff-17f572ee7964","ParentId":"c936147c-d950-44cb-bab7-f2410666d768","Title":"Version 4","Content":"<div class=\"handbookNewBodyStyle\"> <ol> \n <li>“Belief” or “believes” denotes that the person involved actually thought the fact in question to be true. A person’s belief may be inferred from the circumstances.</li> \n <li>“Confidential Proceedings” denotes any proceeding under these rules which occurs prior to a filing in the Supreme Court of Georgia.</li> \n <li>“Confirmed in writing” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person, or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (l) 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.</li> \n <li>“Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.</li> \n <li> “Conviction” or “convicted” denotes any of the following accepted by a court, whether or not a sentence has been imposed:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> a guilty plea; </li> \n <li> <span style=\"white-space: pre\">\t</span> a plea of nolo contendere; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty but mentally ill; or </li> \n <li> <span style=\"white-space: pre\">\t</span> A plea entered under the Georgia First Offender Act, OCGA § 42-8-60 et seq., or a substantially similar statute in Georgia or another jurisdiction. </li> \n </ol> \n </li> \n <li>“Domestic Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any state or territory of the United States or the District of Columbia but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Firm” or “law firm” denotes a lawyer or lawyers in a private firm, law partnership, professional corporation, sole proprietorship or other association authorized to practice law pursuant to Bar Rule 1-203 (d); or lawyers employed in a legal services organization or the legal department of a corporation or other organization.</li> \n <li>“Foreign Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any foreign nation but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive; not merely negligent misrepresentation or failure to apprise another of relevant information.</li> \n <li>“Grievance/Memorandum of Grievance” denotes an allegation of unethical conduct filed against a lawyer.</li> \n <li>“He,” “Him” or “His” denotes generic pronouns including both male and female.</li> \n <li>“Informed consent” denotes the agreement by a person 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.</li> \n <li>“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances.</li> \n <li>“Lawyer” denotes a person authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia including persons admitted to practice in this state pro hac vice.</li> \n <li> “Nonlawyer” denotes a person not authorized to practice law by either the:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> Supreme Court of Georgia or its rules (including pro hac vice admission), or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any other state or territory of the United States, or the District of Columbia, or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any foreign nation. </li> \n </ol> \n </li> \n <li>“Notice of Discipline” denotes a notice by the State Disciplinary Board that the respondent will be subject to a disciplinary sanction for violation of one or more Georgia Rules of Professional Conduct unless the respondent affirmatively rejects the notice.</li> \n <li>“Partner” denotes a member of a partnership, a shareholder in a law firm organized pursuant to Bar Rule 1-203 (d), or a member of an association authorized to practice law. </li> \n <li>“Petition for Voluntary Surrender of License” denotes a Petition for Voluntary Discipline in which the respondent voluntarily surrenders his license to practice law in this state. A voluntary surrender of license is tantamount to disbarment.</li> \n <li>“Probable Cause” denotes a finding by the State Disciplinary Board that there is sufficient evidence to believe that the respondent has violated one or more of the provisions of Part IV, Chapter 1 of the rules. </li> \n <li>\"Prospective Client \"denotes a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.</li> \n <li>“Public Proceedings” denotes any proceeding under these rules that has been filed with the Supreme Court of Georgia.</li> \n <li>“Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.</li> \n <li>“Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.</li> \n <li>“Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.</li> \n <li>“Respondent” denotes a person whose conduct is the subject of any disciplinary investigation or proceeding.</li> \n <li>“Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.</li> \n </ol> \n <div style=\"margin-left: 40px\"> \n <p> (aa) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.<br> \n(bb) “Tribunal” denotes a court, an arbitrator in an 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 legal judgment directly affecting a party's interests in a particular matter.<br>\n(cc) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including but not limited to handwriting, typewriting, printing, photostating, photography, audio or video recording and electronic communications. 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. </p> \n </div> \n<div>Comment</div> \n<p>[1] Bar Rule 4-110 includes additional definitions for terminology used in the procedural section of these rules.</p> \n<p>Confirmed in Writing</p> \n<p>[1A] 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.</p> \n<p>Firm</p> \n<p>[2] Whether two or more lawyers constitute a firm within paragraph (e) 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. 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. 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.</p> \n<p>[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 Georgia 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.</p> \n<p>[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.</p> \n<p>Fraud</p> \n<p>[5] When used in these rules, the terms \"fraud \"or \"fraudulent \"refers 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.</p> \n<p>Informed Consent</p> \n<p>[6] Many of the Georgia 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.</p> \n <p> [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. <em>See Rules 1.7 (b) and 1.9 (a)</em> . For a definition of \"writing \"and \"confirmed in writing,\"see paragraphs (s) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. <em>See, e.g., Rules 1.8 (a) (3) and (g)</em> . For a definition of \"signed,\"see paragraph (s). </p> \n<p>Screened</p> \n<p>[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 and 1.12.</p> \n<p>[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.</p> \n<p>[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.</p> \n<p>Writing</p> \n <p> [11] The purpose of this definition is to permit a lawyer to use developing technologies that maintain an objective record of a communication that does not rely upon the memory of the lawyer or any other person. <em>See OCGA § 10-12-2(8).</em> </p></div>","UrlName":"revision389"},{"Id":"5286835f-4415-448b-ac8d-6169d3cf48a3","ParentId":"c936147c-d950-44cb-bab7-f2410666d768","Title":"Version 2","Content":"<div class=\"handbookNewBodyStyle\"> <ol> \n <li>“Belief” or “believes” denotes that the person involved actually thought the fact in question to be true. A person’s belief may be inferred from the circumstances.</li> \n <li>“Confidential Proceedings” denotes any proceeding under these rules which occurs prior to a filing in the Supreme Court of Georgia.</li> \n <li>“Confirmed in writing” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person, or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (l) 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.</li> \n <li>“Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.</li> \n <li> “Conviction” or “convicted” denotes any of the following accepted by a court, whether or not a sentence has been imposed:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> a guilty plea; </li> \n <li> <span style=\"white-space: pre\">\t</span> a plea of nolo contendere; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty; </li> \n <li> <span style=\"white-space: pre\">\t</span> a verdict of guilty but mentally ill; or </li> \n <li> <span style=\"white-space: pre\">\t</span> A plea entered under the Georgia First Offender Act, OCGA § 42-8-60 et seq., or a substantially similar statute in Georgia or another jurisdiction. </li> \n </ol> \n </li> \n <li>“Domestic Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any state or territory of the United States or the District of Columbia but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Firm” or “law firm” denotes a lawyer or lawyers in a private firm, law partnership, professional corporation, sole proprietorship or other association authorized to practice law pursuant to Bar Rule 1-203 (d); or lawyers employed in a legal services organization or the legal department of a corporation or other organization.</li> \n <li>“Foreign Lawyer” denotes a person authorized to practice law by the duly constituted and authorized governmental body of any foreign nation but not authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia.</li> \n <li>“Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive; not merely negligent misrepresentation or failure to apprise another of relevant information.</li> \n <li>“Grievance/Memorandum of Grievance” denotes an allegation of unethical conduct filed against a lawyer. </li> \n <li>“He,” “Him” or “His” denotes generic pronouns including both male and female.</li> \n <li>“Informed consent” denotes the agreement by a person 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.</li> \n <li>“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances.</li> \n <li>“Lawyer” denotes a person authorized by the Supreme Court of Georgia or its rules to practice law in the state of Georgia including persons admitted to practice in this state pro hac vice.</li> \n <li> “Nonlawyer” denotes a person not authorized to practice law by either the:\n <ol type=\"1\"> \n <li> <span style=\"white-space: pre\">\t</span> Supreme Court of Georgia or its rules (including pro hac vice admission), or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any other state or territory of the United States, or the District of Columbia, or </li> \n <li> <span style=\"white-space: pre\">\t</span> duly constituted and authorized governmental body of any foreign nation. </li> \n </ol> \n </li> \n <li>“Notice of Discipline” denotes a notice by the State Disciplinary Board that the respondent will be subject to a disciplinary sanction for violation of one or more Georgia Rules of Professional Conduct unless the respondent affirmatively rejects the notice.</li> \n <li>“Partner” denotes a member of a partnership, a shareholder in a law firm organized pursuant to Bar Rule 1-203 (d), or a member of an association authorized to practice law. </li> \n <li>“Petition for Voluntary Surrender of License” denotes a Petition for Voluntary Discipline in which the respondent voluntarily surrenders his license to practice law in this state. A voluntary surrender of license is tantamount to disbarment.</li> \n <li>“Probable Cause” denotes a finding by the State Disciplinary Board that there is sufficient evidence to believe that the respondent has violated one or more of the provisions of Part IV, Chapter 1 of the rules. </li> \n <li>“Public Proceedings” denotes any proceeding under these rules that has been filed with the Supreme Court of Georgia.</li> \n <li>“Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.</li> \n <li>“Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.</li> \n <li>“Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.</li> \n <li>“Respondent” denotes a person whose conduct is the subject of any disciplinary investigation or proceeding.</li> \n <li>“Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.</li> \n <li>“Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.</li> \n <li>“Tribunal” denotes a court, an arbitrator in an 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 legal judgment directly affecting a party's interests in a particular matter.</li> \n <li>“Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, 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.</li> \n </ol> \n<div>Comment</div> \n<p>[1] Bar Rule 4-110 includes additional definitions for terminology used in the procedural section of these rules.</p> \n<p>Confirmed in Writing</p> \n<p>[1A] 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.</p> \n<p>Firm</p> \n<p>[2] Whether two or more lawyers constitute a firm within paragraph (e) 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. 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. 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.</p> \n<p>[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 Georgia 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.</p> \n<p>[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.</p> \n<p>Fraud</p> \n<p>[5] When used in these rules, the terms \"fraud \"or \"fraudulent \"refers 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.</p> \n<p>Informed Consent</p> \n<p>[6] Many of the Georgia 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.</p> \n <p> [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. <em>See Rules 1.7 (b) and 1.9 (a)</em> . For a definition of \"writing \"and \"confirmed in writing,\"see paragraphs (s) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. <em>See, e.g., Rules 1.8 (a) (3) and (g)</em> . For a definition of \"signed,\"see paragraph (s). </p> \n<p>Screened</p> \n<p>[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 and 1.12.</p> \n<p>[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.</p> \n<p>[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.</p> \n<p>Writing</p> \n <p> [11] The purpose of this definition is to permit a lawyer to use developing technologies that maintain an objective record of a communication that does not rely upon the memory of the lawyer or any other person. <em>See OCGA § 10-12-2(8).</em> </p></div>","UrlName":"revision282"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"1f20144b-7054-4d80-84ac-f1211b551489","Title":"RULE 1.1 COMPETENCE","Content":"<p> A lawyer shall provide competent representation to a client. Competent representation as used in this rule means that a lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer's level of competence without associating another lawyer who the original lawyer reasonably believes to be competent to handle the matter in question. Competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.<br> \n<br> \n <strong> The maximum penalty for a violation of this rule is disbarment.<br>\n </strong> <br> \n<strong>Comment</strong> <strong> <br>\n </strong> <br> \n<em>Legal Knowledge and Skill</em> <br> \n<br> \n[1A] The purpose of these rules is not to give rise to a cause of action nor to create a presumption that a legal duty has been breached. These rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.<br> \n<br> \n[1B] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.<br> \n<br> \n[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.<br> \n<br> \n[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.<br> \n<br> \n[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person subject to Rule 6.2: Accepting Appointments.<br> \n<br> \n<em>Thoroughness and Preparation</em> <br> \n<br> \n[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.<br> \n <em> <br>\nMaintaining Competence </em> <br> \n<br>\n[6] To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education.</p>","UrlName":"rule79","Order":6,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"4d1f67c8-77b9-4b06-a0b8-59b68ffa64f7","Title":"RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the scope and objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.</li> \n <li>A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.</li> \n <li>A lawyer may limit the scope and objectives of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.</li> \n <li>A lawyer shall not either knowingly or with willful blindness counsel a client to engage in criminal or fraudulent conduct, nor knowingly or with willful blindness assist a client in such conduct. However, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.</li> \n </ol> \n <p> The maximum penalty for a violation of this rule is disbarment.<br> \n<br> \nComment<br> \n<br> \nAllocation of Authority between Client and Lawyer<br> \n<br> \n[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4 (a) (1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4 (a) (2) and may take such action as is impliedly authorized to carry out the representation.<br> \n<br> \n[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16 (b) (4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16 (a) (3).<br> \n<br> \n[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.<br> \n<br> \n[4] In a case in which the client appears to be suffering from diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.<br> \n<br> \nIndependence from Client's Views or Activities<br> \n<br> \n[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.<br> \n<br> \nAgreements Limiting Scope of Representation<br> \n<br> \n[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.<br> \n<br> \n[7] Although this rule affords the lawyer and the client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.<br> \n<br> \n[8] All agreements concerning a lawyer's representation of a client must accord with the Georgia Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.<br> \n<br> \nCriminal, Fraudulent and Prohibited Transactions<br> \n<br> \n[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.<br> \n<br> \n[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16 (a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.<br> \n<br> \n[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.<br> \n<br> \n[12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Paragraph (d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.<br> \n<br>\n[13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Georgia Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See Rule 1.4 (a) (5). </p></div>","UrlName":"rule50","Order":7,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"9d080d94-78a4-498b-8c17-e968e402cca0","ParentId":"4d1f67c8-77b9-4b06-a0b8-59b68ffa64f7","Title":"Version 1","Content":"<ol type=\"a\"> \n <li>Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the scope and objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.</li> \n <li>A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.</li> \n <li>A lawyer may limit the scope and objectives of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.</li> \n <li>A lawyer shall not counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent, nor knowingly assist a client in such conduct, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.</li> \n</ol>\n<p> <br> \nThe maximum penalty for a violation of this Rule is disbarment.<br> \n<br> \nComment<br> \n<br> \nAllocation of Authority between Client and Lawyer<br> \n<br> \n[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.<br> \n<br> \n[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).<br> \n<br> \n[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.<br> \n<br> \n[4] In a case in which the client appears to be suffering from diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.<br> \n<br> \nIndependence from Client's Views or Activities<br> \n<br> \n[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.<br> \n<br> \nAgreements Limiting Scope of Representation<br> \n<br> \n[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.<br> \n<br> \n[7] Although this Rule affords the lawyer and the client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.<br> \n<br> \n[8] All agreements concerning a lawyer's representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.<br> \n<br> \nCriminal, Fraudulent and Prohibited Transactions<br> \n<br> \n[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.<br> \n<br> \n[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.<br> \n<br> \n[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.<br> \n<br> \n[12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent voidance of tax liability. Paragraph (d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.<br> \n<br>\n[13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See Rule 1.4(a)(5).</p>","UrlName":"revision48"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"0358fab6-2af3-4ea0-b55a-18edc0e83daa","Title":"RULE 1.3 DILIGENCE","Content":"<p>A lawyer shall act with reasonable diligence and promptness in representing a client. Reasonable diligence as used in this rule means that a lawyer shall not without just cause to the detriment of the client in effect willfully abandon or willfully disregard a legal matter entrusted to the lawyer.</p>\n<p> The maximum penalty for a violation of this rule is disbarment.<br> \n<br> \nComment<br> \n<br> \n[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyers duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.<br> \n <br> \n[2] A lawyer's work load should be controlled so that each matter can be handled competently.<br> \n<br> \n[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable competence, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.<br> \n<br>\n[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will serve on a continuing basis. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has not been specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter.</p>","UrlName":"rule52","Order":8,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"39dbb7f3-4d74-4e12-aff1-04eb83ad420b","Title":"RULE 1.4. COMMUNICATION.","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li> A lawyer shall:\n <ol type=\"1\"> \n <li>promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0 (l), is required by these rules;</li> \n <li>reasonably consult with the client about the means by which the client's objectives are to be accomplished;</li> \n <li>keep the client reasonably informed about the status of the matter;</li> \n <li>promptly comply with reasonable requests for information; and</li> \n <li>consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Georgia Rules of Professional Conduct or other law.</li> \n </ol> \n </li> \n <li>A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.</li> \n </ol> \n <p> The maximum penalty for a violation of this rule is a public reprimand.<br> \n<br> \nComment<br> \n<br> \n[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.<br> \n<br> \nCommunicating with Client<br> \n<br> \n[2] If these rules require that a particular decision about the representation be made by the client, paragraph (a) (1) requires that the lawyer promptly consult with and secure the client's informed consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2 (a).<br> \n<br> \n[3] Paragraph (a) (2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations - depending on both the importance of the action under consideration and the feasibility of consulting with the client - this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, paragraph (a) (3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.<br> \n<br> \n[4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a) (4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications. The timeliness of a lawyer's communication must be judged by all the controlling factors. \"Prompt \"communication with the client does not equate to \"instant \"communication with the client and is sufficient if reasonable under the relevant circumstances.<br> \n<br> \nExplaining Matters<br> \n<br> \n[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, where there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0 (h).<br> \n<br> \n[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.<br> \n<br> \nWithholding Information<br> \n<br>\n[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. </p></div>","UrlName":"rule54","Order":9,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"4e5b8c7d-ef0e-41cb-93de-002aca41399f","ParentId":"39dbb7f3-4d74-4e12-aff1-04eb83ad420b","Title":"Version 2","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li> A lawyer shall:\n <ol type=\"1\"> \n <li>promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0 (h), is required by these rules;</li> \n <li>reasonably consult with the client about the means by which the client's objectives are to be accomplished;</li> \n <li>keep the client reasonably informed about the status of the matter;</li> \n <li>promptly comply with reasonable requests for information; and</li> \n <li>consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Georgia Rules of Professional Conduct or other law.</li> \n </ol> \n </li> \n <li>A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.</li> \n </ol> \n <p> The maximum penalty for a violation of this rule is a public reprimand.<br> \n<br> \nComment<br> \n<br> \n[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.<br> \n<br> \nCommunicating with Client<br> \n<br> \n[2] If these rules require that a particular decision about the representation be made by the client, paragraph (a) (1) requires that the lawyer promptly consult with and secure the client's informed consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2 (a).<br> \n<br> \n[3] Paragraph (a) (2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations - depending on both the importance of the action under consideration and the feasibility of consulting with the client - this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, paragraph (a) (3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.<br> \n<br> \n[4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a) (4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged. The timeliness of a lawyer's communication must be judged by all the controlling factors. \"Prompt \"communication with the client does not equate to \"instant \"communication with the client and is sufficient if reasonable under the relevant circumstances.<br> \n<br> \nExplaining Matters<br> \n<br> \n[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, where there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0 (h).<br> \n<br> \n[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.<br> \n<br> \nWithholding Information<br> \n<br>\n[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. </p></div>","UrlName":"revision280"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"d966e74f-47a5-4d8a-aeb5-236af01deab4","Title":"RULE 1.5 FEES","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li> A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:\n <ol type=\"1\"> \n <li>the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;</li> \n <li>the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;</li> \n <li>the fee customarily charged in the locality for similar legal services;</li> \n <li>the amount involved and the results obtained;</li> \n <li>the time limitations imposed by the client or by the circumstances;</li> \n <li>the nature and length of the professional relationship with the client;</li> \n <li>the experience, reputation, and ability of the lawyer or lawyers performing the services; and</li> \n <li>whether the fee is fixed or contingent.</li> \n </ol> \n </li> \n <li> The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.<br>\n To the extent that agreements to arbitrate disputes over fees or expenses are enforceable, a lawyer may enter into such an agreement with a client or prospective client if the client or prospective client gives informed consent in writing signed by the client or prospective client. The agreement to arbitrate and the attorney's disclosures regarding arbitration must be set out in a separate paragraph, written in a font size at least as large as the rest of the contract, and separately initialed by the client and the lawyer. </li> \n <li> \n <ol type=\"1\"> \n <li>A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.</li> \n <li> Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the following:\n <ol type=\"i\"> \n <li>the outcome of the matter; and,</li> \n <li> if there is a recovery showing:\n <ol type=\"A\"> \n <li>the remittance to the client;</li> \n <li>the method of its determination;</li> \n <li>the amount of the attorney fee; and</li> \n <li>if the attorney's fee is divided with another lawyer who is not a partner in or an associate of the lawyer's firm or law office, the amount of fee received by each and the manner in which the division is determined.</li> \n </ol> \n </li> \n </ol> \n </li> \n </ol> \n </li> \n <li> A lawyer shall not enter into an arrangement for, charge, or collect:\n <ol type=\"1\"> \n <li>any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or</li> \n <li>a contingent fee for representing a defendant in a criminal case.</li> \n </ol> \n </li> \n <li> A division of a fee between lawyers who are not in the same firm may be made only if:\n <ol type=\"1\"> \n <li>the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;</li> \n <li>the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and</li> \n <li>the total fee is reasonable.</li> \n </ol> \n </li> \n </ol> \n <p> The maximum penalty for a violation of this rule is a public reprimand.<br>\n </p> \n <p> Comment<br> \n<br> \nReasonableness of Fee and Expenses<br> \n<br> \n[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1) through (8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.<br> \n<br> \n[1A] A fee can also be unreasonable if it is illegal. Examples of illegal fees are those taken without required court approval, those that exceed the amount allowed by court order or statute, or those where acceptance of the fee would be unlawful, e.g., accepting controlled substances or sexual favors as payment.<br> \n<br> \nBasis or Rate of Fee<br> \n<br> \n[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set forth.<br> \n<br> \n[3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances.<br> \n<br> \nTerms of Payment<br> \n<br> \n[4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16 (d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8 (j). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8 (a) because such fees often have the essential qualities of a business transaction with the client.<br> \n<br>\n[5] An agreement may not be made, the terms of which might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. </p> \n <p> [5A] Paragraph (b) requires informed consent to an agreement to arbitrate disputes over fees and expenses. See Rule 1.0 (l). In obtaining such informed consent, the lawyer should reveal to the client or prospective client the following: (1) in an arbitration, the client or prospective client waives the right to a jury trial because the dispute will be resolved by an individual arbitrator or a panel of arbitrators; (2) generally, there is no right to an appeal from an arbitration decision; (3) arbitration may not permit the broad discovery that would be available in civil litigation; (4) how the costs of arbitration compared to the costs of litigation in a public court, including the requirement that the arbitrator or arbitrators be compensated; and (5) who will bear the cost of arbitration. The lawyer should also inform the client or prospective client regarding the existence and operation of the State Bar of Georgia's Fee Arbitration Program, regardless of whether the attorney seeks agreement to submit any future fee disputes to that program. The lawyer should also inform the client or prospective client that an agreement to arbitrate a dispute over fees and expenses is not a waiver of the right to make a disciplinary complaint regarding the lawyer.<br> \n<br> \nProhibited Contingent Fees<br> \n<br> \n[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns. See Formal Advisory Opinions 36 and 47.<br> \n<br> \nDivision of Fee<br> \n<br> \n[7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well. Joint responsibility for the representation entails financial and ethical responsibility for the representation.<br> \n<br> \n[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.<br> \n<br> \nDisputes over Fees<br> \n<br>\n[9] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the State Bar of Georgia, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure. </p></div>","UrlName":"rule55","Order":10,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"2129b43c-aa41-4262-a297-c2073d93a652","ParentId":"d966e74f-47a5-4d8a-aeb5-236af01deab4","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li> A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:\n <ol type=\"1\"> \n <li>the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;</li> \n <li>the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;</li> \n <li>the fee customarily charged in the locality for similar legal services;</li> \n <li>the amount involved and the results obtained;</li> \n <li>the time limitations imposed by the client or by the circumstances;</li> \n <li>the nature and length of the professional relationship with the client;</li> \n <li>the experience, reputation, and ability of the lawyer or lawyers performing the services; and</li> \n <li>whether the fee is fixed or contingent.</li> \n </ol> \n </li> \n <li>The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.</li> \n <li> \n <ol type=\"1\"> \n <li>A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.</li> \n <li> Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the following:\n <ol type=\"i\"> \n <li>the outcome of the matter; and,</li> \n <li> if there is a recovery showing:\n <ol type=\"A\"> \n <li>the remittance to the client;</li> \n <li>the method of its determination;</li> \n <li>the amount of the attorney fee; and</li> \n <li>if the attorney's fee is divided with another lawyer who is not a partner in or an associate of the lawyer's firm or law office, the amount of fee received by each and the manner in which the division is determined.</li> \n </ol> \n </li> \n </ol> \n </li> \n </ol> \n </li> \n <li> A lawyer shall not enter into an arrangement for, charge, or collect:\n <ol type=\"1\"> \n <li>any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or</li> \n <li>a contingent fee for representing a defendant in a criminal case.</li> \n </ol> \n </li> \n <li> A division of a fee between lawyers who are not in the same firm may be made only if:\n <ol type=\"1\"> \n <li>the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;</li> \n <li>the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and</li> \n <li>the total fee is reasonable.</li> \n </ol> \n </li> \n </ol> \n <p> The maximum penalty for a violation of this Rule is a public reprimand.<br>\n </p> \n<p></p> \n <p> Comment<br> \n<br> \nReasonableness of Fee and Expenses<br> \n<br> \n[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1) through (8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.<br> \n<br> \n[1A] A fee can also be unreasonable if it is illegal. Examples of illegal fees are those taken without required court approval, those that exceed the amount allowed by court order or statute, or those where acceptance of the fee would be unlawful, e.g., accepting controlled substances or sexual favors as payment.<br> \n<br> \nBasis or Rate of Fee<br> \n<br> \n[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set forth.<br> \n<br> \n[3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances.<br> \n<br> \nTerms of Payment<br> \n<br> \n[4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.<br> \n<br> \n[5] An agreement may not be made, the terms of which might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.<br> \n<br> \nProhibited Contingent Fees<br> \n<br> \n[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns. See Formal Advisory Opinions 36 and 47.<br> \n<br> \nDivision of Fee<br> \n<br> \n[7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well. Joint responsibility for the representation entails financial and ethical responsibility for the representation.<br> \n<br> \n[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.<br> \n<br> \nDisputes over Fees<br> \n<br>\n[9] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the Bar, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure. </p></div>","UrlName":"revision50"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"bb7b9ba2-53ef-45ae-a307-e637e4a49b9b","Title":"RULE 1.6 CONFIDENTIALITY OF INFORMATION","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the court.</li> \n <li> \n <ol type=\"1\"> \n <li> A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably believes necessary:\n <ol type=\"i\"> \n <li>to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law;</li> \n <li>to prevent serious injury or death not otherwise covered by subparagraph (i) above;</li> \n <li>to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;</li> \n <li>to secure legal advice about the lawyer's compliance with these rules.</li> \n <li>to detect and resolve conflicts of interest arising from the lawyer's change of employment or changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.</li> \n </ol> \n </li> \n <li>In a situation described in paragraph (b) (1), if the client has acted at the time the lawyer learns of the threat of harm or loss to a victim, use or disclosure is permissible only if the harm or loss has not yet occurred.</li> \n <li>Before using or disclosing information pursuant to paragraph (b) (1) (i) or (ii), if feasible, the lawyer must make a good faith effort to persuade the client either not to act or, if the client has already acted, to warn the victim.</li> \n </ol> \n </li> \n <li>The duty of confidentiality shall continue after the client-lawyer relationship has terminated.</li> \n </ol> \n <p> The maximum penalty for a violation of this rule is disbarment.<br> \n<br> \nComment<br> \n<br> \n[1] The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights. See Rule 1.18.<br> \n<br> \n[2] The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.<br> \n<br> \n[3] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.<br> \n<br> \n[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.<br> \n<br> \n[4A] RESERVED<br> \n<br> \n[5] The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. Rule 1.6 applies not merely to matters communicated in confidence by the client but also to all information gained in the professional relationship, whatever its source. A lawyer may not disclose such information except as authorized or required by the Georgia Rules of Professional Conduct or other law. See also Scope. The requirement of maintaining confidentiality of information gained in the professional relationship applies to government lawyers who may disagree with the client's policy goals.<br> \n<br> \nAuthorized Disclosure<br> \n<br> \n[6] A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.<br> \n<br> \n[7] 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.<br> \n<br> \n[7A] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these rules. 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) (1) (iv) permits such disclosure because of the importance of a lawyer's compliance with the Georgia Rules of Professional Conduct.<br> \n<br> \nDisclosure Adverse to Client<br> \n<br> \n[8] The confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer may foresee that the client intends serious harm to another person. The public is better protected if full and open communication by the client is encouraged than if it is inhibited.<br> \n<br> \n[9] Several situations must be distinguished. First, the lawyer may not knowingly assist a client in conduct that is criminal or fraudulent. See Rule 1.2 (d). Similarly, a lawyer has a duty under Rule 3.3 (a) (4) not to use false evidence.<br> \n<br> \n[10] Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2 (d), because to \"knowingly assist \"criminal or fraudulent conduct requires knowing that the conduct is of that character.<br> \n<br> \n[11] Third, the lawyer may learn that a client intends prospective conduct that is criminal and likely to result in death or substantial bodily harm. As stated in paragraph (b) (1), the lawyer has professional discretion to reveal information in order to prevent such consequences. The lawyer may make a disclosure in order to prevent death or serious bodily injury which the lawyer reasonably believes will occur. 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.<br> \n<br> \n[12] The lawyer's exercise of discretion requires consideration of such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose. A lawyer's decision not to take preventive action permitted by paragraph (b) (1) does not violate this rule.<br> \n<br> \nWithdrawal<br> \n<br> \n[13] If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16 (a) (1).<br> \n<br> \n[14] After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 1.6. Neither this rule nor Rule 1.8 (b) nor Rule 1.16 (d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like.<br> \n<br> \n[15] Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13 (b).<br> \n<br> \nDispute Concerning a Lawyer's Conduct<br> \n<br> \n[16] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b) (1) (iii) 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, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which 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.<br> \n<br>\n[17] If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal or professional disciplinary 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. A lawyer entitled to a fee is permitted by paragraph (b) (1) (iii) to prove the services rendered in an action to collect it. 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. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure. </p> \n<p>Detection of Conflicts of Interest</p> \n<p>[18] Paragraph (b) (1) (v) recognizes that lawyers in different firms may need to disclose limited information to each other to detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm, two or more firms are considering a merger, or a lawyer is considering the purchase of a law practice. See Rule 1.17, Comment [6]. Under these circumstances, lawyers and law firms are permitted to disclose limited information, but only once substantive discussions regarding the new relationship have occurred. Any such disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated. Even this limited information, however, should be disclosed only to the extent reasonably necessary to detect and resolve conflicts of interests that might arise from the possible new relationship. Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; that a person has consulted a lawyer about the possibility of divorce before the person’s intentions are known to the person’s spouse; or that a person has consulted a lawyer about a criminal investigation that has not led to a public charge). Under those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer’s fiduciary duty to the lawyer’s firm may also govern a lawyer’s conduct when exploring an association with another firm and is beyond the scope of these rules.</p> \n<p>[19] Any information disclosed pursuant to paragraph (b) (1) (v) may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Paragraph (b) (1) (v) does not restrict the use of information acquired by means independent of any disclosure pursuant to paragraph (b) (1) (v). Paragraph (b) (1) (v) also does not affect the disclosure of information within a law firm when the disclosure is otherwise authorized, see Comment [7], such as when a lawyer in a firm discloses information to another lawyer in the same firm to detect and resolve conflicts of interest that could arise in connection with undertaking a new representation.</p> \n<p>Disclosures Otherwise Required or Authorized</p> \n <p> [20] The attorney-client 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, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.<br> \n<br>\n[21] The Georgia Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.2, 2.3, 3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such a supersession. </p> \n<p>[22] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. 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.</p> \n<p>[23] Paragraph (b) permits but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified. In exercising the discretion conferred by this rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this rule. Disclosure may be required, however, by other rules. Some rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2 (d), 4.1 (b), and 8.1. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this rule. See Rule 3.3 (b).</p> \n<p>Acting Competently to Preserve Confidentiality</p> \n<p>[24] A lawyer should make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information covered by this Rule. A lawyer should make reasonable efforts to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these rules.</p> \n<p>[25] When transmitting a communication that includes information relating to the representation of a client, the lawyer should take reasonable precautions to prevent the information from coming into the hands of unintended recipients. 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, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. Whether a lawyer may be required to take additional steps in order to comply with other laws, such as state and federal laws that govern data privacy, is beyond the scope of these rules.</p></div>","UrlName":"rule57","Order":11,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"963c68dc-cfa0-459e-8cc3-b2b5f08dc416","ParentId":"bb7b9ba2-53ef-45ae-a307-e637e4a49b9b","Title":"Version 2","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the court.</li> \n <li> \n <ol type=\"1\"> \n <li> A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably believes necessary:\n <ol type=\"i\"> \n <li>to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law;</li> \n <li>to prevent serious injury or death not otherwise covered by subparagraph (i) above;</li> \n <li>to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;</li> \n <li>to secure legal advice about the lawyer's compliance with these rules.</li> \n </ol> \n </li> \n <li>In a situation described in paragraph (b) (1), if the client has acted at the time the lawyer learns of the threat of harm or loss to a victim, use or disclosure is permissible only if the harm or loss has not yet occurred.</li> \n <li>Before using or disclosing information pursuant to paragraph (b) (1) (i) or (ii), if feasible, the lawyer must make a good faith effort to persuade the client either not to act or, if the client has already acted, to warn the victim.</li> \n </ol> \n </li> \n <li>The lawyer may, where the law does not otherwise require, reveal information to which the duty of confidentiality does not apply under paragraph (b) without being subjected to disciplinary proceedings.</li> \n <li>The lawyer shall reveal information under paragraph (b) as the applicable law requires.</li> \n <li>The duty of confidentiality shall continue after the client-lawyer relationship has terminated.</li> \n </ol> \n <p> The maximum penalty for a violation of this rule is disbarment.<br> \n<br> \nComment<br> \n<br> \n[1] The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights.<br> \n<br> \n[2] The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.<br> \n<br> \n[3] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.<br> \n<br> \n[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.<br> \n<br> \n[4A] Information gained in the professional relationship includes information gained from a person (prospective client) who discusses the possibility of forming a client-lawyer relationship with respect to a matter. Even when no client-lawyer relationship ensues, the restrictions and exceptions of these rules as to use or revelation of the information apply, e.g. Rules 1.9 and 1.10.<br> \n<br> \n[5] The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. Rule 1.6 applies not merely to matters communicated in confidence by the client but also to all information gained in the professional relationship, whatever its source. A lawyer may not disclose such information except as authorized or required by the Georgia Rules of Professional Conduct or other law. See also Scope. The requirement of maintaining confidentiality of information gained in the professional relationship applies to government lawyers who may disagree with the client's policy goals.<br> \n<br> \nAuthorized Disclosure<br> \n<br> \n[6] A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.<br> \n<br> \n[7] 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.<br> \n<br> \n[7A] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these rules. 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) (1) (iv) permits such disclosure because of the importance of a lawyer's compliance with the Georgia Rules of Professional Conduct.<br> \n<br> \nDisclosure Adverse to Client<br> \n<br> \n[8] The confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer may foresee that the client intends serious harm to another person. The public is better protected if full and open communication by the client is encouraged than if it is inhibited.<br> \n<br> \n[9] Several situations must be distinguished. First, the lawyer may not knowingly assist a client in conduct that is criminal or fraudulent. See Rule 1.2 (d). Similarly, a lawyer has a duty under Rule 3.3 (a) (4) not to use false evidence.<br> \n<br> \n[10] Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2 (d), because to \"knowingly assist \"criminal or fraudulent conduct requires knowing that the conduct is of that character.<br> \n<br> \n[11] Third, the lawyer may learn that a client intends prospective conduct that is criminal and likely to result in death or substantial bodily harm. As stated in paragraph (b) (1), the lawyer has professional discretion to reveal information in order to prevent such consequences. The lawyer may make a disclosure in order to prevent death or serious bodily injury which the lawyer reasonably believes will occur. 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.<br> \n<br> \n[12] The lawyer's exercise of discretion requires consideration of such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose. A lawyer's decision not to take preventive action permitted by paragraph (b) (1) does not violate this rule.<br> \n<br> \nWithdrawal<br> \n<br> \n[13] If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16 (a) (1).<br> \n<br> \n[14] After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 1.6. Neither this rule nor Rule 1.8 (b) nor Rule 1.16 (d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like.<br> \n<br> \n[15] Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13 (b).<br> \n<br> \nDispute Concerning a Lawyer's Conduct<br> \n<br> \n[16] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b) (1) (iii) 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, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which 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.<br> \n<br> \n[17] If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal or professional disciplinary 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. A lawyer entitled to a fee is permitted by paragraph (b) (1) (iii) to prove the services rendered in an action to collect it. 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. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.<br> \n<br> \nDisclosures Otherwise Required or Authorized<br> \n<br> \n[18] The attorney-client 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, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.<br> \n<br>\n[19] The Georgia Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.2, 2.3, 3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such a supersession. </p></div>","UrlName":"revision321"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"179833f9-065d-4c1f-80c1-792594c90dac","Title":"RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b).</li> \n <li> If client informed consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected client or former client gives informed consent, confirmed in writing, to the representation after:\n <ol type=\"1\"> \n <li>consultation with the lawyer, pursuant to Rule 1.0 (c);</li> \n <li>having received in writing reasonable and adequate information about the material risks of and reasonable available alternatives to the representation, and</li> \n <li>having been given the opportunity to consult with independent counsel.</li> \n </ol> \n </li> \n <li> Client informed consent is not permissible if the representation:\n <ol type=\"1\"> \n <li>is prohibited by law or these rules;</li> \n <li>includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding; or</li> \n <li>involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.</li> \n </ol> \n </li> \n <li>Though otherwise subject to the provisions of this rule, a part-time prosecutor who engages in the private practice of law may represent a private client adverse to the state or other political subdivision that the lawyer represents as a part-time prosecutor, except with regard to matters for which the part-time prosecutor had or has prosecutorial authority or responsibility.</li> \n </ol> \n <p> The maximum penalty for a violation of this rule is disbarment.<br> \n<br> \nComment<br> \n<br> \nLoyalty to a Client<br> \n<br> \n[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. If an impermissible conflict of interest exists before representation is undertaken the representation should be declined. The 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 parties and issues involved and to determine whether there are actual or potential conflicts of interest.<br> \n<br> \n[2] Loyalty to a client is impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other competing responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (a) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved.<br> \n <br> \n[3] If an impermissible conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rule 1.16. Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment 4 to Rule 1.3 and Scope.<br> \n<br> \n[4] As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. Paragraph (d) states an exception to that general rule. A part-time prosecutor does not automatically have a conflict of interest in representing a private client who is adverse to the state or other political subdivision (such as a city or county) that the lawyer represents as a part-time prosecutor, although it is possible that in a particular case, the part-time prosecutor could have a conflict of interest under paragraph (a).<br> \n<br> \nSimultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require informed consent of the respective clients.<br> \n<br> \nConsultation and Informed Consent<br> \n<br> \n[5] A client may give informed consent to representation notwithstanding a conflict. However, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's informed consent. When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain informed consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to give informed consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to give informed consent. If informed consent is withdrawn, the lawyer should consult Rule 1.9 and Rule 1.16.<br> \n<br> \n[5A] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0 (b). See also Rule 1.0 (s) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0 (b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.<br> \n<br> \nLawyer's Interests<br> \n<br> \n[6] The lawyer's personal or economic interests should not be permitted to have an adverse effect on representation of a client. See Rules 1.1 and 1.5. If the propriety of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client objective advice. 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 interest.<br> \n<br> \nConflicts in Litigation<br> \n<br> \n[7] Paragraph (c) (2) prohibits representation of opposing parties in the same or a similar proceeding including simultaneous representation of parties whose interests may conflict, such as co-plaintiffs or co-defendants. An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal, the requirements of paragraph (b) are met, and consent is not prohibited by paragraph (c).<br> \n <br> \n[8] Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients give informed consent as required by paragraph (b). By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government entity is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.<br> \n<br> \n[9] A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases while they are pending in different trial courts, but it may be improper to do so should one or more of the cases reach the appellate court.<br> \n<br> \nInterest of Person Paying for a Lawyer's Service<br> \n<br> \n[10] A lawyer may be paid from a source other than the client, if the client is informed of that fact and gives informed consent and the arrangement does not compromise the lawyer's duty of loyalty to the client. See Rule 1.8 (f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients give informed consent and the arrangement ensures the lawyer's professional independence.<br> \n<br> \nNon-litigation Conflicts<br> \n<br> \n[11] Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for material and adverse effect include the duration and extent of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise.<br> \n<br> \n[12] In a negotiation common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them.<br> \n<br> \n[13] Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. The lawyer should make clear the relationship to the parties involved.<br> \n<br> \n[14] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director.<br> \n<br> \nConflict Charged by an Opposing Party<br> \n<br>\n[15] 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 lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call into question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See Scope. </p> \n <p> [16] For the purposes of 1.7 (d), part-time prosecutors include but are not limited to part-time solicitors-general, part-time assistant solicitors-general, part-time probate court prosecutors, part-time magistrate court prosecutors, part-time municipal court prosecutors, special assistant attorneys general, part-time juvenile court prosecutors and prosecutors pro tem.<br> \n<br> \n[17] Pragmatic considerations require that the rules treat a lawyer serving as a part-time prosecutor differently. See Thompson v. State, 254 Ga. 393, 396-397 (1985).<br> \n<br> \nSpecial Considerations in Common Representation<br> \n<br> \n[18] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.<br> \n<br>\n </p></div>","UrlName":"rule58","Order":12,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"3c263cdc-75e0-462c-ad1f-5e5a5627313a","ParentId":"179833f9-065d-4c1f-80c1-792594c90dac","Title":"Version 2","Content":"<ol type=\"a\"> \n <li>A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b).</li> \n <li> If client informed consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected client or former client gives informed consent, confirmed in writing, to the representation after:\n <ol type=\"1\"> \n <li>consultation with the lawyer, pursuant to Rule 1.0(c);</li> \n <li>having received in writing reasonable and adequate information about the material risks of and reasonable available alternatives to the representation, and</li> \n <li>having been given the opportunity to consult with independent counsel.</li> \n </ol> \n </li> \n <li> Client informed consent is not permissible if the representation:\n <ol type=\"1\"> \n <li>is prohibited by law or these Rules;</li> \n <li>includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding; or</li> \n <li>involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.</li> \n </ol> \n </li> \n</ol>\n<p> The maximum penalty for a violation of this Rule is disbarment.<br> \n<br> \nComment<br> \n<br> \nLoyalty to a Client<br> \n<br> \n[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. If an impermissible conflict of interest exists before representation is undertaken the representation should be declined. The 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 parties and issues involved and to determine whether there are actual or potential conflicts of interest.<br> \n<br> \n[2] Loyalty to a client is impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other competing responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (a) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved.<br> \n <br> \n[3] If an impermissible conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rule 1.16. Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment 4 to Rule 1.3 and Scope.<br> \n<br> \n[4] As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's informed consent. Paragraphs (b) and (c) express that general rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require informed consent of the respective clients.<br> \n<br> \nConsultation and Informed Consent<br> \n<br> \n[5] A client may give informed consent to representation notwithstanding a conflict. However, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's informed consent. When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain informed consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to give informed consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to give informed consent. If informed consent is withdrawn, the lawyer should consult Rule 1.9 and Rule 1.16.<br> \n<br> \n[5A] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(s) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.<br> \n<br> \nLawyer's Interests<br> \n<br> \n[6] The lawyer's personal or economic interests should not be permitted to have an adverse effect on representation of a client. See Rules 1.1 and 1.5. If the propriety of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client objective advice. 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 interest.<br> \n<br> \nConflicts in Litigation<br> \n<br> \n[7] Paragraph (c)(2) prohibits representation of opposing parties in the same or a similar proceeding including simultaneous representation of parties whose interests may conflict, such as co-plaintiffs or co-defendants. An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal, the requirements of paragraph (b) are met, and consent is not prohibited by paragraph (c).<br> \n <br> \n[8] Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients give informed consent as required by paragraph (b). By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government entity is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.<br> \n<br> \n[9] A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases while they are pending in different trial courts, but it may be improper to do so should one or more of the cases reach the appellate court.<br> \n<br> \nInterest of Person Paying for a Lawyer's Service<br> \n<br> \n[10] A lawyer may be paid from a source other than the client, if the client is informed of that fact and gives informed consent and the arrangement does not compromise the lawyer's duty of loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients give informed consent and the arrangement ensures the lawyer's professional independence.<br> \n<br> \nNon-litigation Conflicts<br> \n<br> \n[11] Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for material and adverse effect include the duration and extent of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise.<br> \n<br> \n[12] In a negotiation common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them.<br> \n<br> \n[13] Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. The lawyer should make clear the relationship to the parties involved.<br> \n<br> \n[14] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director.<br> \n<br> \nConflict Charged by an Opposing Party<br> \n<br> \n[15] 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 lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call into question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See Scope.<br>\n </p>","UrlName":"revision4"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"6c1fcca2-0b79-4c3c-94a0-b42a00e94a27","Title":"RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li> A lawyer shall neither enter into a business transaction with a client if the client expects the lawyer to exercise the lawyer's professional judgment therein for the protection of the client, nor shall the lawyer knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:\n <ol type=\"1\"> \n <li>the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;</li> \n <li>the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and</li> \n <li>the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.</li> \n </ol> \n </li> \n <li>A lawyer shall not use information gained in the professional relationship with a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules.</li> \n <li>A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, grandparent, child, grandchild, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.</li> \n <li>Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.</li> \n <li> A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:\n <ol> \n <li>a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or</li> \n <li>a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client.</li> \n </ol> \n </li> \n <li> A lawyer shall not accept compensation for representing a client from one other than the client unless:\n <ol> \n <li>the client gives informed consent;</li> \n <li>there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and</li> \n <li>information relating to representation of a client is protected as required by Rule 1.6.</li> \n </ol> \n </li> \n <li>A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims for or against the clients, nor in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyers disclosure shall include the existence and nature of all claims or pleas involved and of the participation of each person in the settlement.</li> \n <li>A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law, and the client is independently represented by a lawyer in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith. To the extent that agreements to arbitrate disputes over a lawyer's liability for malpractice are enforceable, a lawyer may enter into such an agreement with a client or a prospective client if the client or prospective client gives informed consent in writing signed by the client or prospective client. The agreement to arbitrate and the attorney's disclosures regarding arbitration must be set out in a separate paragraph, written in a font size at least as large as the rest of the contract, and separately initialed by the client and the lawyer. </li> \n <li>A lawyer related to another lawyer as parent, grandparent, child, grandchild, sibling or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer has actual knowledge is represented by the other lawyer unless his or her client gives informed consent regarding the relationship. The disqualification stated in this paragraph is personal and is not imputed to members of firms with whom the lawyers are associated.</li> \n <li> A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:\n <ol> \n <li>acquire a lien granted by law to secure the lawyer's fees or expenses as long as the exercise of the lien is not prejudicial to the client with respect to the subject of the representation; and</li> \n <li>contract with a client for a reasonable contingent fee in a civil case, except as prohibited by Rule 1.5.</li> \n </ol> \n </li> \n </ol> \n <p> The maximum penalty for a violation of Rule 1.8 (b) is disbarment. The maximum penalty for a violation of Rule 1.8 (a) and 1.8 (c)-(j) is a public reprimand.<br> \n<br> \nComment<br> \n<br> \nTransactions Between Client and Lawyer<br> \n<br> \n[1A] As a general principle, all transactions between client and lawyer should be fair and reasonable to the client. The client should be fully informed of the true nature of the lawyer's interest or lack of interest in all aspects of the transaction. In such transactions a review by independent counsel on behalf of the client is often advisable. Furthermore, a lawyer may not exploit information relating to the representation to the client's disadvantage. For example, a lawyer who has learned that the client is investing in specific real estate may not, without the client's informed consent, seek to acquire nearby property where doing so would adversely affect the client's plan for investment. Paragraph (a) does not, however, apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities' services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.<br> \n <br> \nUse of Information to the Disadvantage of the Client<br> \n <br> \n[1B] It is a general rule that an attorney will not be permitted to make use of knowledge, or information, acquired by the attorney through the professional relationship with the client, or in the conduct of the client's business, to the disadvantage of the client. Paragraph (b) follows this general rule and provides that the client may waive this prohibition. However, if the waiver is conditional, the duty is on the attorney to comply with the condition.<br> \n<br> \nGifts from Clients<br> \n<br> \n[2] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the objective advice that another lawyer can provide. Paragraph (c) recognizes an exception where the client is a relative of the donee or the gift is not substantial.<br> \n<br> \nLiterary Rights<br> \n<br> \n[3] An agreement by which a lawyer acquires literary or media rights concerning the subject of the representation creates a conflict between the interest of the client and the personal interest of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraph (j) of this rule.<br> \n<br> \nFinancial Assistance to Clients<br> \n<br> \n[4] Paragraph (e) eliminates the former requirement that the client remain ultimately liable for financial assistance provided by the lawyer. It further limits permitted assistance to court costs and expenses directly related to litigation. Accordingly, permitted expenses would include expenses of investigation, medical diagnostic work connected with the matter under litigation and treatment necessary for the diagnosis, and the costs of obtaining and presenting evidence. Permitted expenses would not include living expenses or medical expenses other than those listed above.<br> \n<br> \nPayment for a Lawyer's Services from One Other Than The Client<br> \n <br> \n[5] Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation sued along with one or more of its employees). Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment and there is informed consent from the client. See also Rule 5.4 (c) (prohibiting interference with a lawyer's professional judgment by one who recommends, employs or pays the lawyer to render legal services for another).<br> \n<br> \nSettlement of Aggregated Claims<br> \n<br> \n[6] Paragraph (g) requires informed consent. This requirement is not met by a blanket consent prior to settlement that the majority decision will rule.<br> \n<br> \nAgreements to Limit Liability<br> \n<br> \n[7] A lawyer may not condition an agreement to withdraw or the return of a client's documents on the client's release of claims. However, this paragraph is not intended to apply to customary qualifications and limitations in opinions and memoranda.<br> \n<br>\n[8] A lawyer should not seek prospectively, by contract or other means, to limit the lawyer's individual liability to a client for the lawyer's malpractice. A lawyer who handles the affairs of a client properly has no need to attempt to limit liability for the lawyer's professional activities and one who does not handle the affairs of clients properly should not be permitted to do so. A lawyer may, however, practice law as a partner, member, or shareholder of a limited liability partnership, professional association, limited liability company, or professional corporation. </p> \n<p>Arbitration</p> \n <p> [8A] Paragraph (h) requires informed consent to an agreement to arbitrate malpractice claims. See Rule 1.0 (l). In obtaining such informed consent, the laywer should reveal to the client or prospective client the following: (1) in an arbitration, the client of prospective client waives the right to a jury because the dispute will be resolved by an individual arbitrator or a panel or arbitrators; (2) generally, there is no right to an appeal from an arbitration decision; (3) arbitration may not permit the broad discovery that would be available in civil litigation; (4) how the costs of arbitration compare to the costs of litigation in a public court, including the requirement that the arbitrator or arbitrators be compensated; and (5) who will bear the costs of arbitration. The lawyer should also inform the client or prospective client that an agreement to arbitrate malpractice claims over fees and expenses is not a waiver of the right to make a disciplinary complaint regarding the lawyer.<br> \n<br> \nFamily Relationships Between Lawyers<br> \n<br> \n[9] Paragraph (i) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and 1.10.<br> \n<br> \nAcquisition of Interest in Litigation<br> \n<br>\n[10] Paragraph (j) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. This general rule, which has its basis in the common law prohibition of champerty and maintenance, is subject to specific exceptions developed in decisional law and continued in these rules, such as the exception for reasonable contingent fees set forth in Rule 1.5 and the exception for lawyer's fees and for certain advances of costs of litigation set forth in paragraph (e). </p></div>","UrlName":"rule60","Order":13,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"1547bf53-9f72-45e5-8253-a31aa5d7ae8d","ParentId":"6c1fcca2-0b79-4c3c-94a0-b42a00e94a27","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li> A lawyer shall neither enter into a business transaction with a client if the client expects the lawyer to exercise the lawyer's professional judgment therein for the protection of the client, nor shall the lawyer knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:\n <ol type=\"1\"> \n <li>the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;</li> \n <li>the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and</li> \n <li>the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.</li> \n </ol> \n </li> \n <li>A lawyer shall not use information gained in the professional relationship with a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.</li> \n <li>A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, grandparent, child, grandchild, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.</li> \n <li>Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.</li> \n <li> A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:\n <ol> \n <li>a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or</li> \n <li>a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client.</li> \n </ol> \n </li> \n <li> A lawyer shall not accept compensation for representing a client from one other than the client unless:\n <ol> \n <li>the client gives informed consent;</li> \n <li>there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and</li> \n <li>information relating to representation of a client is protected as required by Rule 1.6.</li> \n </ol> \n </li> \n <li>A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims for or against the clients, nor in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyers disclosure shall include the existence and nature of all claims or pleas involved and of the participation of each person in the settlement.</li> \n <li>A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.</li> \n <li>A lawyer related to another lawyer as parent, grandparent, child, grandchild, sibling or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer has actual knowledge is represented by the other lawyer unless his or her client gives informed consent regarding the relationship. The disqualification stated in this paragraph is personal and is not imputed to members of firms with whom the lawyers are associated.</li> \n <li> A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:\n <ol> \n <li>acquire a lien granted by law to secure the lawyer's fees or expenses as long as the exercise of the lien is not prejudicial to the client with respect to the subject of the representation; and</li> \n <li>contract with a client for a reasonable contingent fee in a civil case, except as prohibited by Rule 1.5.</li> \n </ol> \n </li> \n </ol> \n <p> The maximum penalty for a violation of Rule 1.8(b) is disbarment. The maximum penalty for a violation of Rule 1.8(a) and 1.8(c)-(j) is a public reprimand.<br> \n<br> \nComment<br> \n<br> \nTransactions Between Client and Lawyer<br> \n<br> \n[1A] As a general principle, all transactions between client and lawyer should be fair and reasonable to the client. The client should be fully informed of the true nature of the lawyer's interest or lack of interest in all aspects of the transaction. In such transactions a review by independent counsel on behalf of the client is often advisable. Furthermore, a lawyer may not exploit information relating to the representation to the client's disadvantage. For example, a lawyer who has learned that the client is investing in specific real estate may not, without the client's informed consent, seek to acquire nearby property where doing so would adversely affect the client's plan for investment. Paragraph (a) does not, however, apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities' services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.<br> \n <br> \nUse of Information to the Disadvantage of the Client<br> \n <br> \n[1B] It is a general rule that an attorney will not be permitted to make use of knowledge, or information, acquired by the attorney through the professional relationship with the client, or in the conduct of the client's business, to the disadvantage of the client. Paragraph (b) follows this general rule and provides that the client may waive this prohibition. However, if the waiver is conditional, the duty is on the attorney to comply with the condition.<br> \n<br> \nGifts from Clients<br> \n<br> \n[2] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the objective advice that another lawyer can provide. Paragraph (c) recognizes an exception where the client is a relative of the donee or the gift is not substantial.<br> \n<br> \nLiterary Rights<br> \n<br> \n[3] An agreement by which a lawyer acquires literary or media rights concerning the subject of the representation creates a conflict between the interest of the client and the personal interest of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraph (j) of this Rule.<br> \n<br> \nFinancial Assistance to Clients<br> \n<br> \n[4] Paragraph (e) eliminates the former requirement that the client remain ultimately liable for financial assistance provided by the lawyer. It further limits permitted assistance to court costs and expenses directly related to litigation. Accordingly, permitted expenses would include expenses of investigation, medical diagnostic work connected with the matter under litigation and treatment necessary for the diagnosis, and the costs of obtaining and presenting evidence. Permitted expenses would not include living expenses or medical expenses other than those listed above.<br> \n<br> \nPayment for a Lawyer's Services from One Other Than The Client<br> \n <br> \n[5] Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation sued along with one or more of its employees). Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment and there is informed consent from the client. See also Rule 5.4(c) (prohibiting interference with a lawyer's professional judgment by one who recommends, employs or pays the lawyer to render legal services for another).<br> \n<br> \nSettlement of Aggregated Claims<br> \n<br> \n[6] Paragraph (g) requires informed consent. This requirement is not met by a blanket consent prior to settlement that the majority decision will rule.<br> \n<br> \nAgreements to Limit Liability<br> \n<br> \n[7] A lawyer may not condition an agreement to withdraw or the return of a client's documents on the client's release of claims. However, this paragraph is not intended to apply to customary qualifications and limitations in opinions and memoranda.<br> \n<br> \n[8] A lawyer should not seek prospectively, by contract or other means, to limit the lawyer's individual liability to a client for the lawyer's malpractice. A lawyer who handles the affairs of a client properly has no need to attempt to limit liability for the lawyer's professional activities and one who does not handle the affairs of clients properly should not be permitted to do so. A lawyer may, however, practice law as a partner, member, or shareholder of a limited liability partnership, professional association, limited liability company, or professional corporation.<br> \n<br> \nFamily Relationships Between Lawyers<br> \n<br> \n[9] Paragraph (i) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and 1.10.<br> \n<br> \nAcquisition of Interest in Litigation<br> \n<br>\n[10] Paragraph (j) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. This general rule, which has its basis in the common law prohibition of champerty and maintenance, is subject to specific exceptions developed in decisional law and continued in these Rules, such as the exception for reasonable contingent fees set forth in Rule 1.5 and the exception for lawyer's fees and for certain advances of costs of litigation set forth in paragraph (e). </p></div>","UrlName":"revision51"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"d1647878-baba-429a-8b11-8c4f60290964","Title":"RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.</li> \n <li> A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:\n <ol type=\"1\"> \n <li>whose interests are materially adverse to that person; and</li> \n <li>about whom the lawyer had acquired information protected by Rules 1.6 and 1.9 (c), that is material to the matter; unless the former client gives informed consent, confirmed in writing. </li> \n </ol> \n </li> \n <li> A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:\n <ol type=\"1\"> \n <li>use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or</li> \n <li>reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.</li> \n </ol> \n </li> \n </ol> \n <p> The maximum penalty for a violation of this rule is disbarment.<br> \n<br> \nComment<br> \n<br> \n[1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this rule. Under this rule for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. See Comment [9]. Current and former government lawyers must comply with this rule to the extent required by Rule 1.11.<br> \n<br> \n[2] The scope of a \"matter \"for purposes of this rule depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.<br> \n<br> \n[3] Matters are \"substantially related \"for purposes of this rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.<br> \n<br> \nLawyers Moving Between Firms<br> \n <br> \n[4] When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.<br> \n<br> \n[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10 (b) for the restrictions on a firm once a lawyer has terminated association with the firm.<br> \n<br> \n[6] Application of paragraph (b) depends on a situation's particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm's clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.<br> \n<br> \n[7] Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9 (c).<br> \n<br> \n[8] Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.<br> \n<br>\n[9] The provisions of this rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under paragraphs (a) and (b). See Rule 1.0 (b) and (h). With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10. </p></div>","UrlName":"rule61","Order":14,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"0ae93d6f-b0aa-45e5-8088-bf2d4c1fc7e7","ParentId":"d1647878-baba-429a-8b11-8c4f60290964","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.</li> \n <li> A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:\n <ol type=\"1\"> \n <li>whose interests are materially adverse to that person; and</li> \n <li>about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c), that is material to the matter; unless the former client gives informed consent, confirmed in writing. </li> \n </ol> \n </li> \n <li> A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:\n <ol type=\"1\"> \n <li>use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or</li> \n <li>reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.</li> \n </ol> \n </li> \n </ol> \n <p> The maximum penalty for a violation of this Rule is disbarment.<br> \n<br> \nComment<br> \n<br> \n[1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. See Comment [9]. Current and former government lawyers must comply with this Rule to the extent required by Rule 1.11.<br> \n<br> \n[2] The scope of a \"matter \"for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.<br> \n<br> \n[3] Matters are \"substantially related \"for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.<br> \n<br> \nLawyers Moving Between Firms<br> \n <br> \n[4] When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.<br> \n<br> \n[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm.<br> \n<br> \n[6] Application of paragraph (b) depends on a situation's particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm's clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.<br> \n<br> \n[7] Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9(c).<br> \n<br> \n[8] Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.<br> \n<br>\n[9] The provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under paragraphs (a) and (b). See Rule 1.0(b) and (h). With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10. </p></div>","UrlName":"revision52"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"3d8ef04b-23ce-4883-b52f-67ca784694d4","Title":"RULE 1.10 IMPUTED DISQUALIFICATION: GENERAL RULE","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7: Conflict of Interest: General Rule, 1.8 (c): Conflict of Interest: Prohibited Transactions, 1.9: Former Client or 2.2: Intermediary.</li> \n <li> When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:\n <ol type=\"1\"> \n <li>the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and</li> \n <li>any lawyer remaining in the firm has information protected by Rules 1.6: Confidentiality of Information and 1.9 (c): Conflict of Interest: Former Client that is material to the matter.</li> \n </ol> \n </li> \n <li>A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7: Conflict of Interest: General Rule.</li> \n </ol> \n<p>The maximum penalty for a violation of this rule is disbarment.</p> \n<p>Comment</p> \n<p>Definition of \"Firm \"</p> \n<p>[1] For purposes of these rules, the term \"firm \"includes lawyers in a private firm, and lawyers in the legal department of a corporation or other organization, or in a legal services organization. Whether two or more lawyers constitute a firm within this definition 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 suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the 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 the other.</p> \n<p>[2] With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Georgia Rules of Professional Conduct. However, there can be uncertainty 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.</p> \n<p>[3] Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.</p> \n<p>[4] Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11 (a) and (b): Successive Government and Private Employment; where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11 (c) (1): Successive Government and Private Employment. The individual lawyer involved is bound by the Rules generally, including Rules 1.6: Confidentiality of Information, 1.7: Conflict of Interest: General Rule and 1.9: Conflict of Interest: Former Client.</p> \n<p>[5] Different provisions are thus made for movement of a lawyer from one private firm to another and for movement of a lawyer between a private firm and the government. The government is entitled to protection of its client confidences and, therefore, to the protections provided in Rules 1.6: Confidentiality of Information, 1.9: Conflict of Interest: Former Client, and 1.11: Successive Government and Private Employment. However, if the more extensive disqualification in Rule 1.10: Imputed Disqualification were applied to former government lawyers, the potential effect on the government would be unduly burdensome. The government deals with all private citizens and organizations and, thus, has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government's recruitment of lawyers would be seriously impaired if Rule 1.10: Imputed Disqualification were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in Rule 1.11: Successive Government and Private Employment.</p> \n<p>Principles of Imputed Disqualification</p> \n<p>[6] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9 (b): Conflict of Interest: Former Client, and 1.10 (b): Imputed Disqualification: General Rule.</p> \n<p>[7] Rule 1.10 (b): Imputed Disqualification operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7: Conflict of Interest. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6: Confidentiality of Information and 1.9 (c): Conflict of Interest: Former Client.</p></div>","UrlName":"rule86","Order":15,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"39b7e9f5-9ade-497b-8c70-1a8d0a95e14c","ParentId":"3d8ef04b-23ce-4883-b52f-67ca784694d4","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7: Conflict of Interest: General Rule, 1.8(c): Conflict of Interest: Prohibited Transactions, 1.9: Former Client or 2.2: Intermediary.</li> \n <li> When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:\n <ol type=\"1\"> \n <li>the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and</li> \n <li>any lawyer remaining in the firm has information protected by Rules 1.6: Confidentiality of Information and 1.9(c): Conflict of Interest: Former Client that is material to the matter.</li> \n </ol> \n </li> \n <li>A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7: Conflict of Interest: General Rule.</li> \n </ol> \n<p>The maximum penalty for a violation of this Rule is disbarment.</p> \n<p>Comment</p> \n<p>Definition of \"Firm \"</p> \n<p>[1] For purposes of these Rules, the term \"firm \"includes lawyers in a private firm, and lawyers in the legal department of a corporation or other organization, or in a legal services organization. Whether two or more lawyers constitute a firm within this definition 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 suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the 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 the other.</p> \n<p>[2] With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. However, there can be uncertainty 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.</p> \n<p>[3] Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.</p> \n<p>[4] Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11(a) and (b): Successive Government and Private Employment; where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11(c)(1): Successive Government and Private Employment. The individual lawyer involved is bound by the Rules generally, including Rules 1.6: Confidentiality of Information, 1.7: Conflict of Interest: General Rule and 1.9: Conflict of Interest: Former Client.</p> \n<p>[5] Different provisions are thus made for movement of a lawyer from one private firm to another and for movement of a lawyer between a private firm and the government. The government is entitled to protection of its client confidences and, therefore, to the protections provided in Rules 1.6: Confidentiality of Information, 1.9: Conflict of Interest: Former Client, and 1.11: Successive Government and Private Employment. However, if the more extensive disqualification in Rule 1.10: Imputed Disqualification were applied to former government lawyers, the potential effect on the government would be unduly burdensome. The government deals with all private citizens and organizations and, thus, has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government's recruitment of lawyers would be seriously impaired if Rule 1.10: Imputed Disqualification were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in Rule 1.11: Successive Government and Private Employment.</p> \n<p>Principles of Imputed Disqualification</p> \n<p>[6] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b): Conflict of Interest: Former Client, and 1.10(b): Imputed Disqualification: General Rule.</p> \n<p>[7] Rule 1.10(b): Imputed Disqualification operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7: Conflict of Interest. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6: Confidentiality of Information and 1.9(c): Conflict of Interest: Former Client.</p></div>","UrlName":"revision53"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"0acc2933-f3df-436b-b82d-ad55711fcb4f","Title":"RULE 1.11 SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li> Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government entity gives informed consent, confirmed in writing. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:\n <ol type=\"1\"> \n <li>the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and</li> \n <li>written notice is duly given to the client and to the appropriate government entity to enable it to ascertain compliance with the provisions of this rule.</li> \n </ol> \n </li> \n <li>Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.</li> \n <li> Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:\n <ol type=\"1\"> \n <li>participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or</li> \n <li>negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12 (b) and subject to the conditions stated in Rule 1.12 (b).</li> \n </ol> \n </li> \n <li> As used in this rule, the term \"matter \"includes:\n <ol type=\"1\"> \n <li>any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and</li> \n <li>any other matter covered by the conflict of interest rules of the appropriate government entity.</li> \n </ol> \n </li> \n <li>As used in this rule, the term \"confidential government information \"means information which has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.</li> \n </ol> \n<p>The maximum penalty for a violation of this rule is disbarment.</p> \n<p>Comment</p> \n<p>[1] This rule prevents a lawyer from exploiting public office for the advantage of a private client. It is a counterpart of Rule 1.10 (b), which applies to lawyers moving from one firm to another.</p> \n<p>[2] A lawyer representing a government entity, whether employed or specially retained by the government, is subject to the Georgia Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government entity may give consent under this rule.</p> \n<p>[3] Where the successive clients are a public entity and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However, the rules governing lawyers presently or formerly employed by a government entity should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.</p> \n<p>[4] When the client is an agency of one government, that agency should be treated as a private client for purposes of this rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency.</p> \n<p>[5] Paragraphs (a) (1) and (b) do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement. They prohibit directly relating the lawyer's compensation to the fee in the matter in which the lawyer is disqualified.</p> \n<p>[6] Paragraph (a) (2) does not require that a lawyer give notice to the government entity at a time when premature disclosure would injure the client; a requirement for premature disclosure might preclude engagement of the lawyer. Such notice is, however, required to be given as soon as practicable in order that the government entity will have a reasonable opportunity to ascertain that the lawyer is complying with Rule 1.11 and to take appropriate action if it believes the lawyer is not complying.</p> \n<p>[7] Paragraph (b) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer.</p> \n<p>[8] Paragraphs (a) and (c) do not prohibit a lawyer from jointly representing a private party and a government entity when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.</p> \n<p>[9] Paragraph (c) does not disqualify other lawyers in the entity with which the lawyer in question has become associated.</p></div>","UrlName":"rule90","Order":16,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"9819c8a5-48a8-4555-ada1-fd19b5986ad3","ParentId":"0acc2933-f3df-436b-b82d-ad55711fcb4f","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li> Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government entity gives informed consent, confirmed in writing. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:\n <ol type=\"1\"> \n <li>the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and</li> \n <li>written notice is duly given to the client and to the appropriate government entity to enable it to ascertain compliance with the provisions of this Rule.</li> \n </ol> \n </li> \n <li>Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.</li> \n <li> Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:\n <ol type=\"1\"> \n <li>participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or</li> \n <li>negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).</li> \n </ol> \n </li> \n <li> As used in this Rule, the term \"matter \"includes:\n <ol type=\"1\"> \n <li>any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and</li> \n <li>any other matter covered by the conflict of interest rules of the appropriate government entity.</li> \n </ol> \n </li> \n <li>As used in this Rule, the term \"confidential government information \"means information which has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.</li> \n </ol> \n<p>The maximum penalty for a violation of this Rule is disbarment.</p> \n<p>Comment</p> \n<p>[1] This Rule prevents a lawyer from exploiting public office for the advantage of a private client. It is a counterpart of Rule 1.10(b), which applies to lawyers moving from one firm to another.</p> \n<p>[2] A lawyer representing a government entity, whether employed or specially retained by the government, is subject to the Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government entity may give consent under this Rule.</p> \n<p>[3] Where the successive clients are a public entity and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However, the rules governing lawyers presently or formerly employed by a government entity should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.</p> \n<p>[4] When the client is an agency of one government, that agency should be treated as a private client for purposes of this Rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency.</p> \n<p>[5] Paragraphs (a)(1) and (b) do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement. They prohibit directly relating the lawyer's compensation to the fee in the matter in which the lawyer is disqualified.</p> \n<p>[6] Paragraph (a)(2) does not require that a lawyer give notice to the government entity at a time when premature disclosure would injure the client; a requirement for premature disclosure might preclude engagement of the lawyer. Such notice is, however, required to be given as soon as practicable in order that the government entity will have a reasonable opportunity to ascertain that the lawyer is complying with Rule 1.11 and to take appropriate action if it believes the lawyer is not complying.</p> \n<p>[7] Paragraph (b) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer.</p> \n<p>[8] Paragraphs (a) and (c) do not prohibit a lawyer from jointly representing a private party and a government entity when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.</p> \n<p>[9] Paragraph (c) does not disqualify other lawyers in the entity with which the lawyer in question has become associated.</p></div>","UrlName":"revision54"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"e39b427e-f692-412a-b382-185913c92ba3","Title":"RULE 1.12 FORMER JUDGE OR ARBITRATOR","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding give informed consent.</li> \n <li>A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or arbitrator. A lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or arbitrator. In addition, the law clerk shall promptly provide written notice of acceptance of employment to all counsel of record in all such matters in which the prospective employer is involved.</li> \n <li> If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:\n <ol type=\"1\"> \n <li>the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and</li> \n <li>written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule.</li> \n </ol> \n </li> \n <li>An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.</li> \n </ol> \n<p>The maximum penalty for a violation of this rule is a public reprimand.</p> \n<p>Comment</p> \n<p>This rule generally parallels Rule 1.11. The term \"personally and substantially \"signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. The term \"adjudicative officer \"includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled to active service, may not \"act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto.\"Although phrased differently from this rule, those rules correspond in meaning.</p></div>","UrlName":"rule93","Order":17,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"6ebe642e-55da-4665-adee-8bb95321e16f","ParentId":"e39b427e-f692-412a-b382-185913c92ba3","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding give informed consent.</li> \n <li>A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or arbitrator. A lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or arbitrator. In addition, the law clerk shall promptly provide written notice of acceptance of employment to all counsel of record in all such matters in which the prospective employer is involved.</li> \n <li> If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:\n <ol type=\"1\"> \n <li>the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and</li> \n <li>written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this Rule.</li> \n </ol> \n </li> \n <li>An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.</li> \n </ol> \n<p>The maximum penalty for a violation of this Rule is a public reprimand.</p> \n<p>Comment</p> \n<p>This Rule generally parallels Rule 1.11. The term \"personally and substantially \"signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. The term \"adjudicative officer \"includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled to active service, may not \"act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto.\"Although phrased differently from this Rule, those rules correspond in meaning.</p></div>","UrlName":"revision55"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"3f4b6e1c-3da9-448f-b9bc-4c1f8b196f87","Title":"RULE 1.13 ORGANIZATION AS CLIENT","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.</li> \n <li>If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.</li> \n <li> Except as provided in paragraph (d), if\n <ol type=\"1\"> \n <li>despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and</li> \n <li>the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.</li> \n </ol> \n </li> \n <li>Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.</li> \n <li>A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c ), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.</li> \n <li>In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.</li> \n <li>A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.</li> \n </ol> \n<p>The maximum penalty for a violation of this rule is a public reprimand.</p> \n<p>Comment</p> \n<p>The Organization as the Client</p> \n<p>[1] An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders and other constituents. Officers, directors, employees and shareholders are the constituents of the corporate organizational client. The duties defined in this Comment apply equally to unincorporated associations. \"Other constituents \"as used in this Comment means the positions equivalent to officers, directors, employees and shareholders held by persons acting for organizational clients that are not corporations.</p> \n<p>[2] When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client's employees or other constituents are covered by Rule 1.6. This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6.</p> \n<p>[3] When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province. Paragraph (b) makes clear, however, that when the lawyer knows that the organization is likely to be substantially injured by action of an officer or other constituent that violates a legal obligation to the organization or is in violation of law that might be imputed to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization. As defined in Rule 1.0 (i), knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious.</p> \n<p>[4] In determining how to proceed under paragraph (b), the lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant consideration. Ordinarily, referral to a higher authority would be necessary. In some circumstances, however, it may be appropriate for the lawyer to ask the constituent to reconsider the matter; for example, if the circumstances involve a constituent's innocent misunderstanding of law and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority. If a constituent persists in conduct contrary to the lawyer's advice, it will be necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. If the matter is of sufficient seriousness and importance or urgency to the organization, referral to higher authority in the organization may be necessary even if the lawyer has not communicated with the constituent. Any measures taken should, to the extent practicable, minimize the risk of revealing information relating to the representation to persons outside the organization. Even in circumstances where a lawyer is not obligated by Rule 1.13 to proceed, a lawyer may bring to the attention of an organizational client, including its highest authority, matters that the lawyer reasonably believes to be of sufficient importance to warrant doing so in the best interest of the organization.</p> \n<p>[5] Paragraph (b) also makes clear that when it is reasonably necessary to enable the organization to address the matter in a timely and appropriate manner, the lawyer must refer the matter to higher authority, including, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law. The organization's highest authority to whom a matter may be referred ordinarily will be the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions the highest authority reposes elsewhere, for example, in the independent directors of a corporation.</p> \n<p>Relation to Other Rules</p> \n<p>[6] The authority and responsibility provided in this rule are concurrent with the authority and responsibility provided in other rules. In particular, this rule does not limit or expand the lawyer's responsibility under Rules 1.8, 1.16, 3.3 or 4.1. Paragraph (c) of this rule supplements Rule 1.6 (b) by providing an additional basis upon which the lawyer may reveal information relating to the representation, but does not modify, restrict, or limit the provisions of Rule 1.6 (b) (1). Under paragraph (c) the lawyer may reveal such information only when the organization's highest authority insists upon or fails to address threatened or ongoing action that is clearly a violation of law, and then only to the extent the lawyer reasonably believes necessary to prevent reasonably certain substantial injury to the organization. It is not necessary that the lawyer's services be used in furtherance of the violation, but it is required that the matter be related to the lawyers' representation of the organization. In such circumstances Rule 1.2 (d) may also be applicable, in which event, withdrawal from the representation under Rule 1.16 (a) (1) may be required.</p> \n<p>[7] Paragraph (d) makes clear that the authority of a lawyer to disclose information relating to a representation in circumstances described in paragraph (c) does not apply with respect to information relating to a lawyer's engagement by an organization to investigate an alleged violation of law or to defend the organization or an officer, employee or other person associated with the organization against a claim arising out of an alleged violation of law. This is necessary in order to enable organizational clients to enjoy the full benefits of legal counsel in conducting an investigation or defending against a claim.</p> \n<p>[8] A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraph (b) or (c), or who withdraws in circumstances that require or permit the lawyer to take action under either of these paragraphs, must proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.</p> \n<p>Governmental Organization</p> \n<p>[9] The duty defined in this rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these rules. See Scope [16]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. Thus, when the client is governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business in involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. This rule does not limit that authority. See Scope [16].</p> \n<p>Clarifying the Lawyer's Role</p> \n<p>[10] There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.</p> \n<p>[11] Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.</p> \n<p>Dual Representation</p> \n<p>[12] Paragraph (g) recognizes that a lawyer for an organization may also represent a principal officer or major shareholder.</p> \n<p>Derivative Actions</p> \n<p>[13] Under generally prevailing law, the shareholders or members of a corporation may bring suit to compel the directors to perform their legal obligations in the supervision of the organization. Members of unincorporated associations have essentially the same right. Such an action may be brought nominally by the organization, but usually is, in fact, a legal controversy over management of the organization.</p> \n<p>[14] The question can arise whether counsel for the organization may defend such an action. The proposition that the organization is the lawyer's client does not alone resolve the issue. Most derivative actions are a normal incident of an organization's affairs, to be defended by the organization's lawyer like any other suit. However, if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer's duty to the organization and the lawyer's relationship with the board. In those circumstances, Rule 1.7 governs who should represent the directors and the organization.</p></div>","UrlName":"rule97","Order":18,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"29994363-3ff9-42e9-a318-129638717b79","ParentId":"3f4b6e1c-3da9-448f-b9bc-4c1f8b196f87","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.</li> \n <li>If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.</li> \n <li> Except as provided in paragraph (d), if\n <ol type=\"1\"> \n <li>despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and</li> \n <li>the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.</li> \n </ol> \n </li> \n <li>Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.</li> \n <li>A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c ), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.</li> \n <li>In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.</li> \n <li>A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.</li> \n </ol> \n<p>The maximum penalty for a violation of this Rule is a public reprimand.</p> \n<p>Comment</p> \n<p>The Organization as the Client</p> \n<p>[1] An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders and other constituents. Officers, directors, employees and shareholders are the constituents of the corporate organizational client. The duties defined in this Comment apply equally to unincorporated associations. \"Other constituents \"as used in this Comment means the positions equivalent to officers, directors, employees and shareholders held by persons acting for organizational clients that are not corporations.</p> \n<p>[2] When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client's employees or other constituents are covered by Rule 1.6. This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6.</p> \n<p>[3] When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province. Paragraph (b) makes clear, however, that when the lawyer knows that the organization is likely to be substantially injured by action of an officer or other constituent that violates a legal obligation to the organization or is in violation of law that might be imputed to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization. As defined in Rule 1.0(i), knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious.</p> \n<p>[4] In determining how to proceed under paragraph (b), the lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant consideration. Ordinarily, referral to a higher authority would be necessary. In some circumstances, however, it may be appropriate for the lawyer to ask the constituent to reconsider the matter; for example, if the circumstances involve a constituent's innocent misunderstanding of law and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority. If a constituent persists in conduct contrary to the lawyer's advice, it will be necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. If the matter is of sufficient seriousness and importance or urgency to the organization, referral to higher authority in the organization may be necessary even if the lawyer has not communicated with the constituent. Any measures taken should, to the extent practicable, minimize the risk of revealing information relating to the representation to persons outside the organization. Even in circumstances where a lawyer is not obligated by Rule 1.13 to proceed, a lawyer may bring to the attention of an organizational client, including its highest authority, matters that the lawyer reasonably believes to be of sufficient importance to warrant doing so in the best interest of the organization.</p> \n<p>[5] Paragraph (b) also makes clear that when it is reasonably necessary to enable the organization to address the matter in a timely and appropriate manner, the lawyer must refer the matter to higher authority, including, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law. The organization's highest authority to whom a matter may be referred ordinarily will be the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions the highest authority reposes elsewhere, for example, in the independent directors of a corporation.</p> \n<p>Relation to Other Rules</p> \n<p>[6] The authority and responsibility provided in this Rule are concurrent with the authority and responsibility provided in other Rules. In particular, this Rule does not limit or expand the lawyer's responsibility under Rules 1.8, 1.16, 3.3 or 4.1. Paragraph (c) of this Rule supplements Rule 1.6(b) by providing an additional basis upon which the lawyer may reveal information relating to the representation, but does not modify, restrict, or limit the provisions of Rule 1.6(b)(1). Under paragraph (c) the lawyer may reveal such information only when the organization's highest authority insists upon or fails to address threatened or ongoing action that is clearly a violation of law, and then only to the extent the lawyer reasonably believes necessary to prevent reasonably certain substantial injury to the organization. It is not necessary that the lawyer's services be used in furtherance of the violation, but it is required that the matter be related to the lawyers' representation of the organization. In such circumstances Rule 1.2(d) may also be applicable, in which event, withdrawal from the representation under Rule 1.16(a)(1) may be required.</p> \n<p>[7] Paragraph (d) makes clear that the authority of a lawyer to disclose information relating to a representation in circumstances described in paragraph (c) does not apply with respect to information relating to a lawyer's engagement by an organization to investigate an alleged violation of law or to defend the organization or an officer, employee or other person associated with the organization against a claim arising out of an alleged violation of law. This is necessary in order to enable organizational clients to enjoy the full benefits of legal counsel in conducting an investigation or defending against a claim.</p> \n<p>[8] A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraph (b) or (c), or who withdraws in circumstances that require or permit the lawyer to take action under either of these paragraphs, must proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.</p> \n<p>Governmental Organization</p> \n<p>[9] The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules. See Scope [16]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. Thus, when the client is governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business in involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. This Rule does not limit that authority. See Scope [16].</p> \n<p>Clarifying the Lawyer's Role</p> \n<p>[10] There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.</p> \n<p>[11] Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.</p> \n<p>Dual Representation</p> \n<p>[12] Paragraph (e) recognizes that a lawyer for an organization may also represent a principal officer or major shareholder.</p> \n<p>Derivative Actions</p> \n<p>[13] Under generally prevailing law, the shareholders or members of a corporation may bring suit to compel the directors to perform their legal obligations in the supervision of the organization. Members of unincorporated associations have essentially the same right. Such an action may be brought nominally by the organization, but usually is, in fact, a legal controversy over management of the organization.</p> \n<p>[14] The question can arise whether counsel for the organization may defend such an action. The proposition that the organization is the lawyer's client does not alone resolve the issue. Most derivative actions are a normal incident of an organization's affairs, to be defended by the organization's lawyer like any other suit. However, if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer's duty to the organization and the lawyer's relationship with the board. In those circumstances, Rule 1.7 governs who should represent the directors and the organization.</p></div>","UrlName":"revision56"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"b4525c0d-731a-4122-a984-e0f1db856652","Title":"RULE 1.14 CLIENT WITH DIMINISHED CAPACITY","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.</li> \n <li>When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.</li> \n <li>Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6 (a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.</li> \n </ol> \n <p> The maximum penalty for a violation of this rule is a public reprimand.<br> \n<br> \nComment<br> \n<br> \n[1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished mental capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.<br> \n<br> \n[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.<br> \n<br> \n[3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the lawyer should consider such participation in terms of its effect on the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client's behalf.<br> \n<br> \n[4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2 (d).<br> \n<br> \nTaking Protective Action<br> \n<br> \n[5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision-making tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.<br> \n<br> \n[6] In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.<br> \n<br> \n[7] If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.<br> \n<br> \nDisclosure of the Client's Condition<br> \n<br> \n[8] Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one.<br> \n<br> \nEmergency Legal Assistance<br> \n<br> \n[9] In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person's behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these rules as the lawyer would with respect to a client.<br> \n<br> \n[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such emergency actions taken.<br> \n<br>\n[11] This rule is not violated if a lawyer acts in good faith to comply with the rule. </p></div>","UrlName":"rule107","Order":19,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"de6f6d4d-713d-4367-97e2-a05c3318f02b","ParentId":"b4525c0d-731a-4122-a984-e0f1db856652","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.</li> \n <li>When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.</li> \n <li>Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.</li> \n </ol> \n <p> The maximum penalty for a violation of this Rule is a public reprimand.<br> \n<br> \nComment<br> \n<br> \n[1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severly incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished mental capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.<br> \n<br> \n[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.<br> \n<br> \n[3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the lawyer should consider such participation in terms of its effect on the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client's behalf.<br> \n<br> \n[4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(d).<br> \n<br> \nTaking Protective Action<br> \n<br> \n[5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.<br> \n<br> \n[6] In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.<br> \n<br> \n[7] If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.<br> \n<br> \nDisclosure of the Client's Condition<br> \n<br> \n[8] Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one.<br> \n<br> \nEmergency Legal Assistance<br> \n<br> \n[9] In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person's behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer would with respect to a client.<br> \n<br> \n[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such emergency actions taken.<br> \n<br>\n[11] This Rule is not violated if a lawyer acts in good faith to comply with the Rule. </p></div>","UrlName":"revision57"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"fab74617-b734-48a1-ab5a-beca89919b7d","Title":"RULE 1.15(I) SAFEKEEPING PROPERTY - GENERAL","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer shall hold funds or other property of clients or third persons that are in a lawyer's possession in connection with a representation separate from the lawyer's own funds or other property. Funds shall be kept in one or more separate accounts maintained in an approved institution as defined by Rule 1.15 (III) (c) (1). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation.</li> \n <li> For the purposes of this rule, a lawyer may not disregard a third person's interest in funds or other property in the lawyer's possession if:\n <ol type=\"1\"> \n <li>the interest is known to the lawyer, and</li> \n <li> the interest is based upon one of the following:\n <ol type=\"i\"> \n <li>A statutory lien;</li> \n <li>A final judgment addressing disposition of those funds or property; or</li> \n <li>A written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property.</li> \n </ol> \n </li> \n </ol> \n The lawyer may disregard the third person's claimed interest if the lawyer reasonably concludes that there is a valid defense to such lien, judgment, or agreement. </li> \n <li>Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.</li> \n <li>When in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and a client or a third person claim interest, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the funds or property as to which the interests are not in dispute.</li> \n </ol> \n<p>The maximum penalty for a violation of this rule is disbarment.</p> \n<p>Comment</p> \n<p>[1] A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property which is the property of clients or third persons should be kept separate from the lawyer's business and personal property and, if monies, in one or more trust accounts. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities.</p> \n<p>[2] Lawyers often receive funds from third parties from which the lawyer's fee will be paid. If there is risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyer's contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration or interpleader. The undisputed portion of the funds shall be promptly distributed.</p> \n<p>[3] Third parties, such as a client's creditors, may have just claims against funds or other property in a lawyer's custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party. The obligations of a lawyer under this rule are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction.</p> \n<p>[3A] In those cases where it is not possible to ascertain who is entitled to disputed funds or other property held by the lawyer, the lawyer may hold such disputed funds for a reasonable period of time while the interested parties attempt to resolve the dispute. If a resolution cannot be reached, it would be appropriate for a lawyer to interplead such disputed funds or property.</p> \n<p>[4] A \"clients' security fund \"provides a means through the collective efforts of the bar to reimburse persons who have lost money or property as a result of dishonest conduct of a lawyer. Where such a fund has been established, a lawyer should participate.</p></div>","UrlName":"rule42","Order":20,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"2910a926-e4e3-470b-aaee-83e6228535a2","ParentId":"fab74617-b734-48a1-ab5a-beca89919b7d","Title":"Version 1","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>A lawyer shall hold funds or other property of clients or third persons that are in a lawyer's possession in connection with a representation separate from the lawyer's own funds or other property. Funds shall be kept in one or more separate accounts maintained in an approved institution as defined by Rule 1.15 (III) (c) (1). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation.</li> \n <li> For the purposes of this Rule, a lawyer may not disregard a third person's interest in funds or other property in the lawyer's possession if:\n <ol type=\"1\"> \n <li>the interest is known to the lawyer, and</li> \n <li> the interest is based upon one of the following:\n <ol type=\"i\"> \n <li>A statutory lien;</li> \n <li>A final judgment addressing disposition of those funds or property; or</li> \n <li>A written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property.</li> \n </ol> \n </li> \n </ol> \n The lawyer may disregard the third person's claimed interest if the lawyer reasonably concludes that there is a valid defense to such lien, judgment, or agreement. </li> \n <li>Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.</li> \n <li>When in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and a client or a third person claim interest, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the funds or property as to which the interests are not in dispute.</li> \n </ol> \n<p>The maximum penalty for a violation of this Rule is disbarment.</p> \n<p>Comment</p> \n<p>[1] A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property which is the property of clients or third persons should be kept separate from the lawyer's business and personal property and, if monies, in one or more trust accounts. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities.</p> \n<p>[2] Lawyers often receive funds from third parties from which the lawyer's fee will be paid. If there is risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyer's contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration or interpleader. The undisputed portion of the funds shall be promptly distributed.</p> \n<p>[3] Third parties, such as a client's creditors, may have just claims against funds or other property in a lawyer's custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party. The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction.</p> \n<p>[3A] In those cases where it is not possible to ascertain who is entitled to disputed funds or other property held by the lawyer, the lawyer may hold such disputed funds for a reasonable period of time while the interested parties attempt to resolve the dispute. If a resolution cannot be reached, it would be appropriate for a lawyer to interplead such disputed funds or property.</p> \n<p>[4] A \"clients' security fund \"provides a means through the collective efforts of the bar to reimburse persons who have lost money or property as a result of dishonest conduct of a lawyer. Where such a fund has been established, a lawyer should participate.</p></div>","UrlName":"revision58"}],"Ancestors":["d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","d037c3f3-6e47-4d87-816f-5781703b9955","e1de6520-9feb-4e23-8852-0736817db367","ff55569a-b5ac-482a-a62e-91712b8c5957"]},{"Id":"20a634e7-cff2-4f0f-af11-a0ae4d5425c0","Title":"RULE 1.15(II) SAFEKEEPING PROPERTY - TRUST ACCOUNT AND IOLTA","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>Every lawyer who practices law in Georgia, whether said lawyer practices as a sole practitioner, or as a member of a firm, association, or professional corporation, and who receives money or property on behalf of a client or in any other fiduciary capacity, shall maintain or have available one or more trust accounts as required by these rules. All funds held by a lawyer for a client and all funds held by a lawyer in any other fiduciary capacity shall be deposited in and administered from a trust account.</li> \n <li>No personal funds shall ever be deposited in a lawyer's trust account, except that unearned attorney's fees may be so held until the same are earned. Sufficient personal funds of the lawyer may be kept in the trust account to cover maintenance fees such as service charges on the account. Records on such trust accounts shall be so kept and maintained as to reflect at all times the exact balance held for each client or third person. No funds shall be withdrawn from such trust accounts for the personal use of the lawyer maintaining the account except earned lawyer's fees debited against the account of a specific client and recorded as such.</li> \n <li> All client's funds shall be placed in either an interest-bearing account at an approved institution with the interest being paid to the client or an interest-bearing (IOLTA) account at an approved institution with the interest being paid to the Georgia Bar Foundation as hereinafter provided.\n <ol type=\"1\"> \n <li> With respect to funds which are not nominal in amount, or are not to be held for a short period of time, a lawyer shall, with notice to the clients, create and maintain an interest-bearing trust account in an approved institution as defined in Rule 1.15 (III) (c) (1), with the interest to be paid to the client.\n <ol type=\"i\"> \n <li>No earnings from such an interest-bearing account shall be made available to a lawyer or law firm.</li> \n <li>Funds in such an interest-bearing account shall be available for withdrawal upon request and without delay, subject only to any notice period which the institution is required to reserve by law or regulation.</li> \n </ol> \n </li> \n <li> With respect to funds which are nominal in amount or are to be held for a short period of time, such that there can be no reasonable expectation of a positive net return to the client or third person, a lawyer shall, with or without notice to the client, create and maintain an interest-bearing, government insured trust account (IOLTA) at an approved institution as defined by Rule 1.15 (III) (c) (1) in compliance with the following provisions:\n <ol type=\"i\"> \n <li>No earnings from such an IOLTA Account shall be made available to a lawyer or law firm.</li> \n <li>Funds in each IOLTA Account shall be available for withdrawal upon request and without delay, subject only to any notice period which the institution is required to reserve by law or regulation.</li> \n <li>As required by Bar Rule 15-103, the rate of interest payable on any IOLTA Account shall not be less than the rate paid by the depositor institution to regular, non-lawyer depositors. Higher rates offered by the institution to customers whose deposits exceed certain time periods or quantity minimums, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm on some or all of the deposited funds so long as there is no impairment of the right to withdraw or transfer principal immediately.</li> \n <li> Lawyers or law firms shall direct the depository institution:\n <ol type=\"A\"> \n <li>to remit to the Georgia Bar Foundation interest or dividends, net of any allowable reasonable fees as defined in Bar Rule 15-102 (c), on the average monthly balance in that account, at least quarterly. Any allowable reasonable fees in excess of interest earned on that account for any month, and any charges or fees that are not allowable reasonable fees, shall be charged to the lawyer or law firm in whose names such account appears, if not waived by the approved institution;</li> \n <li>to transmit with each remittance to the Georgia Bar Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent, the applicable IOLTA Account number, the rate of interest applied, the average monthly account balance against which the interest rate is being applied, the gross interest earned, the types and amounts of service charges of fees applied, and the amount of the net interest remittance;</li> \n <li>to transmit to the depositing lawyer or law firm periodic reports or statements in accordance with the approved institution’s normal procedures for reporting to depositors.</li> \n </ol> \n </li> \n </ol> \n </li> \n <li>No charge of ethical impropriety or other breach of professional conduct shall attend the determination that such funds are nominal in amount or to be held for a short period of time, or to the decision to invest clients' funds in a pooled interest-bearing account.</li> \n <li>Whether the funds are designated short-term or nominal or not, a lawyer or law firm may, at the request of the client, deposit funds into a separate interest-bearing account and remit all interest earned, or interest earned net of charges, to the client or clients.</li> \n </ol> \n </li> \n </ol> \n<p>The maximum penalty for a violation of Rule 1.15 (II) (a) and Rule 1.15 (II) (b) is disbarment. The maximum penalty for a violation of Rule 1.15 (II) (c) is a public reprimand.</p> \n<p>Comment</p> \n<p>[1] The personal money permitted to be kept in the lawyer's trust account by this rule shall not be used for any purpose other than to cover the bank fees and if used for any other purpose the lawyer shall have violated this rule. If the lawyer wishes to reduce the amount of personal money in the trust account, the change must be properly noted in the lawyer's financial records and the monies transferred to the lawyer's business account.</p> \n<p>[2] Nothing in this rule shall prohibit a lawyer from removing from the trust account fees which have been earned on a regular basis which coincides with the lawyer's billing cycles rather than removing the fees earned on an hour-by-hour basis.</p> \n<p>[3] In determining whether funds of a client or other beneficiary can earn income in excess of costs, the lawyer may consider the following factors:</p> \n <ol type=\"a\"> \n <li>the amount of funds to be deposited;</li> \n <li>the expected duration of the deposit, including the likelihood of delay in the matter with respect to which the funds are held;</li> \n <li>the rates of interest or yield at financial institutions where the funds are to be deposited;</li> \n <li>the cost of establishing and administering a non-IOLTA trust account for the benefit of the client or other beneficiary, including service charges, the costs of the lawyer’s services and the costs of preparing any tax reports that may be required;</li> \n <li>the capability of financial institutions, lawyers, or law firms to calculate and pay earnings to individual clients; and</li> \n <li>any other circumstances that affect the ability of the funds to earn a net return for the client or other beneficiary.</li> \n </ol> \n <p> [4] The lawyer or law firm should review the IOLTA Account at reasonable intervals to determine whether changed circumstances require further action with respect to the funds of any client or third party.<br>\n </p></div>","UrlName":"rule45","Order":21,"IsRule":false,"Children":[],"ParentId":"d0d17fe4-7247-4c3b-8c56-f3e269fd2adb","Revisions":[{"Id":"b4c2e1d2-2c8d-48e3-b9a7-78d1a5670861","ParentId":"20a634e7-cff2-4f0f-af11-a0ae4d5425c0","Title":"Version 2","Content":"<div class=\"handbookNewBodyStyle\"> <ol type=\"a\"> \n <li>Every lawyer who practices law in Georgia, whether said lawyer practices as a sole practitioner, or as a member of a firm, association, or professional corporation, and who receives money or property on behalf of a client or in any other fiduciary capacity, shall maintain or have available one or more trust accounts as required by these Rules. All funds held by a lawyer for a client and all funds held by a lawyer in any other fiduciary capacity shall be deposited in and administered from a trust account.</li> \n <li>No personal funds shall ever be deposited in a lawyer's trust account, except that unearned attorney's fees may be so held until the same are earned. Sufficient personal funds of the lawyer may be kept in the trust account to cover maintenance fees such as service charges on the account. Records on such trust accounts shall be so kept and maintained as to reflect at all times the exact balance held for each client or third person. No funds shall be withdrawn from such trust accounts for the personal use of the lawyer maintaining the account except earned lawyer's fees debited against the account of a specific client and recorded as such.</li> \n <li> All client's funds shall be placed in either an interest-bearing account at an approved institution with the interest being paid to the client or an interest-bearing (IOLTA) account at an approved institution with the interest being paid to the Georgia Bar Foundation as hereinafter provided.\n <ol type=\"1\"> \n <li> With respect to funds which are not nominal in amount, or are not to be held for a short period of time, a lawyer shall, with notice to the clients, create and maintain an interest-bearing trust account in an approved institution as defined in Rule 1.15 (III) (c) (1), with the interest to be paid to the client.\n <ol type=\"i\"> \n <li>No earnings from such an interest-bearing account shall be made available to a lawyer or law firm.</li> \n <li>Funds in such an interest-bearing account shall be available for withdrawal upon request and without delay, subject only to any notice period which the institution is required to reserve by law or regulation.</li> \n </ol> \n </li> \n <li> With respect to funds which are nominal in amount or are to be held for a short period of time, such that there can be no reasonable expectation of a positive net return to the client or third person, a lawyer shall, with or without notice to the client, create and maintain an interest-bearing, government insured trust account (IOLTA) at an approved institution as defined by Rule 1.15 (III) (c) (1) in compliance with the following provisions:\n <ol type=\"i\"> \n <li>No earnings from such an IOLTA Account shall be made available to a lawyer or law firm.</li> \n <li>Funds in each IOLTA Account shall be available for withdrawal upon request and without delay, subject only to any notice period which the institution is required to reserve by law or regulation.</li> \n <li>As required by Rule 15-103, the rate of interest payable on any IOLTA Account shall not be less than the rate paid by the depositor institution to regular, non-lawyer depositors. Higher rates offered by the institution to customers whose deposits exceed certain time periods or quantity minimums, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm on some or all of the deposited funds so long as there is no impairment of the right to withdraw or transfer principal immediately.</li> \n <li> Lawyers or law firms shall direct the depository institution:\n <ol type=\"A\"> \n <li>to remit to the Georgia Bar Foundation interest or dividends, net of any allowable reasonable fees as defined in Rule 15-102 (c), on the average monthly balance in that account, at least quarterly. Any allowable reasonable fees in excess of interest earned on that account for any month, and any charges or fees that are not allowable reasonable fees, shall be charged to the lawyer or law firm in whose names such account appears, if not waived by the approved institution;</li> \n <li>to transmit with each remittance to the Georgia Bar Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent, the applicable IOLTA Account number, the rate of interest applied, the average monthly account balance against which the interest rate is being applied, the gross interest earned, the types and amounts of service charges of fees applied, and the amount of the net interest remittance;</li> \n <li>to transmit to the depositing lawyer or law firm periodic reports or statements in accordance with the approved institution’s normal procedures for reporting to depositors.</li> \n </ol> \n </li> \n </ol> \n </li> \n <li>N