PREAMBLE: A LAWYER'S
RESPONSIBILITIES
[1] A lawyer, as a member of the legal
profession, is a representative of
clients, an officer of the legal system
and a public citizen having special
responsibility for the quality of
justice.
[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
dealings with others. As an evaluator, a
lawyer acts by examining a client's
legal affairs and reporting about them
to the client or to others.
[3] In addition to these
representational functions, a lawyer may
serve as a third-party neutral, a
nonrepresentational role helping the
parties to resolve a dispute or other
matter. Some of these Rules apply
directly to lawyers who are or have
served as third-party neutrals. See,
e.g., Rules 1.12 and 2.4. In addition,
there are Rules that apply to lawyers
who are not active in the practice of
law or to practicing lawyers even when
they are acting in a nonprofessional
capacity. For example, a lawyer who
commits fraud in the conduct of a
business is subject to discipline for
engaging in conduct involving
dishonesty, fraud, deceit or
misrepresentation. See Rule 8.4.
[4] 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 Rules of Professional Conduct or
other law.
[5] A lawyer's conduct should conform to
the requirements of the law, both in
professional service to clients and in
the lawyer's business and personal
affairs. 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 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.
[6] As a public citizen, a lawyer should
seek improvement of the law, access to
the legal system, 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. In
addition, a lawyer should further the
public's understanding of and confidence
in the rule of law and the justice
system because legal institutions in a
constitutional democracy depend on
popular participation and support to
maintain their authority. 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. Therefore,
all lawyers should devote professional
time and resources and use civic
influence to ensure equal access to our
system of justice for all those who
because of economic or social barriers
cannot afford or secure adequate legal
counsel. A lawyer should aid the legal
profession in pursuing these objectives
and should help the bar regulate itself
in the public interest.
[7] Many of a lawyer's professional
responsibilities are prescribed in the
Rules of Professional Conduct, as well
as substantive and procedural law.
However, a lawyer is also guided by
personal 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.
[8] A lawyer's responsibilities as a
representative of clients, an officer of
the legal system and a public citizen
are usually harmonious. Thus, when an
opposing party is well represented, a
lawyer can be a zealous advocate on
behalf of a client and at the same time
assume that justice is being done. So
also, a lawyer can be sure that
preserving client confidences ordinarily
serves the public interest because
people are more likely to seek legal
advice, and thereby heed their legal
obligations, when they know their
communications will be private.
[9] In the nature of law practice,
however, conflicting responsibilities
are encountered. Virtually all difficult
ethical problems arise from conflict
between a lawyer's responsibilities to
clients, to the legal system and to the
lawyer's own interest in remaining an
ethical person while earning a
satisfactory living. The Rules of
Professional Conduct often prescribe
terms for resolving such conflicts.
Within the framework of these Rules,
however, 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. These
principles include the lawyer's
obligation zealously to protect and
pursue a client's legitimate interests,
within the bounds of the law, while
maintaining a professional, courteous
and civil attitude toward all persons
involved in the legal system.
[10] 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 largely in the
courts.
[11] 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.
[12] 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 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.
[13]
Lawyers play a vital role in the
preservation of society. The fulfillment
of this role requires an understanding
by lawyers of their relationship to our
legal system. The Rules of Professional
Conduct, when properly applied, serve to
define that relationship.
SCOPE
[14] The 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 term "may," are permissive and
define areas under the Rules in which
the lawyer has discretion to exercise
professional judgment. No disciplinary
action should be taken when the lawyer
chooses not to act or acts within the
bounds of such discretion. Other Rules
define the nature of relationships
between the lawyer and others. The Rules
are thus partly obligatory and
disciplinary and partly constitutive and
descriptive in that they define a
lawyer's professional role. Many of the
Comments use the term "should." Comments
do not add obligations to the Rules but
provide guidance for practicing in
compliance with the Rules.
[15] 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. The
Comments are sometimes used to alert
lawyers to their responsibilities under
such other law.
[16] 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.
[17] 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 Rule 1.6, that attach when the
lawyer agrees to consider whether a
client-lawyer relationship shall be
established. See Rule 1.18. Whether a
client-lawyer relationship exists for
any specific purpose can depend on the
circumstances and may be a question of
fact.
[18] 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
agency 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 to represent several
government agencies in intragovernmental
legal controversies in circumstances
where a private lawyer could not
represent multiple private clients.
These Rules do not abrogate any such
authority.
[19] 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.
[20] Violation of a Rule should not
itself give rise to a cause of action
against a lawyer nor should it create
any presumption in such a case that a
legal duty has been breached. In
addition, violation of a Rule does not
necessarily warrant any other no
disciplinary remedy, such as
disqualification of a lawyer in pending
litigation. The 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. Nevertheless,
since the Rules do establish standards
of conduct by lawyers, a lawyer's
violation of a Rule may be evidence of
breach of the applicable standard of
conduct.
[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.
