(This article appeared in Journal 25,4, Winter 2020)
Finally donate your “skinny” jeans, clean out your junk drawer(s), and review the Rules of Professional Conduct.
Assuming you have already completed the first two tasks, it’s time to reacquaint yourself with The Rules of Professional Conduct. Sure, you are familiar with a handful of the rules, but did you know there are actually 58 of them? That’s more than the number of states in the country—of which I can name about 15. Complete digression here, but if you have not seen the Friends episode where Ross struggles to name all 50 states, please add that to your “to do” list right after reviewing the Rules of Professional Conduct. Two of my favorite Joey Tribbiani quotes come from this episode:
First:
Joey: (sits down next to Ross and looks at his list of states)
“First of all, Utah? Dude, you can’t just make stuff up!”
Second—unrelated to the state naming game:
Joey: “All right, Rach, the big question is, does he like you? All right? Because if he doesn’t like you, this is all a moo-point.”
Rachel: “Huh. A moo-point?”
Joey: “Yeah, it’s like a cow’s opinion. It just doesn’t matter. It’s moo.”
Okay refocus. The Rules are broken down into eight sections based on a lawyer’s specific professional responsibilities in different scenarios: Counselor, Advocate, Transactions with Persons Other Than Clients, Law Firms and Associations, Public Service, Information About Legal Services, and Maintaining the Integrity of the Profession
Prior to these eight rule sections, however, are two very important prefaces to the rules. The first is the Preamble. Read it, contemplate it, aspire to live it. The preamble sets out an overview of a lawyer’s professional responsibilities. Paragraph one of the preamble notes that a lawyer as a member of the legal profession is (1) a representative of clients, (2) an officer of the legal system, and (3) a public citizen having special responsibility for the quality of justice. Paragraph eight profoundly provides:
The legal profession is a group of people united in a learned calling for the public good. At their best, lawyers assure the availability of legal services to all, regardless of ability to pay, and as leaders of their communities, states, and nation, lawyers use their education and experience to improve society. It is the basic responsibility of each lawyer to provide community service, community leadership, and public interest legal services without fee, or at a substantially reduced fee, in such areas as poverty law, civil rights, public rights law, charitable organization representation, and the administration of justice.
Following the preamble is the terminology section. This is an extremely underutilized source of information in the Rules of Professional Conduct. Many of the questions I receive can be answered by looking at the term definitions provided in this section. Of particular interest lately is the definition of “signed writing.” Rule 1.0(o) provides that “writing” denotes:
[A] tangible or electronic record of a communication or representation, and any data embedded therein (commonly referred to as metadata), including 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.
This section also provides definitions of terms crucial to interpreting the Rules of Professional Conduct such as “informed consent,” “reasonable belief,” “screened,” and “tribunal.”
Client-Lawyer Relationship
The first true “rule” section of the Rules of Professional Conduct deals with the client-lawyer relationship. Not surprisingly, this is the largest section in the Rules. This section is chock full of rules that lawyers love to discuss, debate, and dissect with ethics counsel. There are 19 rules and subparts in this section, including very detailed trust account rules. In addition to the trust account rules, this section includes numerous rules on conflicts of interest, fees, confidentiality, terminating representations, dealing with clients with diminished capacity, and, of course, sexual relations with clients (not to be confused with engaging in intimate relationships with opposing counsel, which is specifically addressed in 2019 FEO 3). Some lesser known rules in the section include the rules on organizations as a client (Rule 1.13) and on the sale of a law practice (Rule 1.17).
Counselor
The shortest section in the Rules is the second section entitled “Counselor.” Included in this section are the rules on lawyers serving as advisors and third-party neutrals. This section also includes Rule 2.3, which applies to lawyers providing evaluations for use by a third person. I have never actually been asked a question relating to this specific rule, and evidently neither has the Ethics Committee because there are no ethics opinions interpreting the rule. It seems the rule often comes into play when there is a need for financial audits, tax opinions, or securities opinions. Therefore, unless you practice in one of these areas of law, this rule may be a moo-point.
Advocate
Moving on. Section three of the Rules of Professional Conduct discusses the more familiar role of the lawyer as “Advocate.” Some of the greatest hits in this section include Candor to the Tribunal (Rule 3.3), Fairness to Opposing Party and Counsel (Rule 3.4), Impartiality and Decorum of the Tribunal (Rule 3.5), Lawyer as Witness (Rule 3.7), and Special Responsibilities of a Prosecutor (Rule 3.8). In 2017, Rule 3.8 was amended to include 3.8(g):
(g) When a prosecutor knows of new, credible evidence or information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, the prosecutor shall:
(1) if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence or information to (i) the defendant or defendant’s counsel of record if any, and (ii) the North Carolina Office of Indigent Defense Services or, in the case of a federal conviction, the federal public defender for the jurisdiction; or
(2) if the conviction was obtained in another jurisdiction, promptly disclose that evidence or information to the prosecutor’s office in the jurisdiction of the conviction or to (i) the defendant or defendant’s counsel of record if any, and (ii) the North Carolina Office of Indigent Defense Services or, in the case of a federal conviction, the federal public defender for the jurisdiction of conviction.
Rule 3.8(g) is definitely worth reviewing. This section also includes Rule 3.2 (Expediting Litigation), which provides that a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. Rule 3.2 has become increasingly relevant during the COVID pandemic as lawyers (and judges) attempt to balance the need for litigation expediency with the necessity to comply with CDC guidelines.
Transactions with Persons Other Than Clients
Section four of the Rules pertains to lawyers’ transactions with persons other than clients. This is another short section with the most notable rules being the two pertaining to communicating with represented (Rule 4.2) and unrepresented individuals (Rule 4.3). These two rules received a lot of attention recently by the Ethics Committee and North Carolina lawyers during the drafting and ultimate adoption of 2018 FEO 5 (Accessing Social Network Presence of Represented or Unrepresented Persons). For an in-depth discussion on Rule 4.2, take a look at this article in the Fall 2011 edition of the Journal: “You Can’t Touch This-A Look at the Anti-Contact Rule.”
Section four also contains the often-misunderstood rule regarding a lawyer’s duties when the lawyer receives inadvertently disclosed information. Rule 4.4(b) provides that a lawyer who receives a writing relating to the representation of the lawyer’s client and knows or reasonably should know that the writing was inadvertently sent “shall promptly notify the sender.” That is the only duty set out in Rule 4.4(b). Comment [3] to Rule 4.4 explains that “[w]hether the lawyer who receives the writing is required to take additional steps, such as returning the writing, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a writing has been waived.” Comment [4] to Rule 4.4 further provides:
Some lawyers may choose to return a writing or delete electronically stored information unread, for example, when the lawyer learns before receiving the writing that it was inadvertently sent. Whether the lawyer is required to do so is a matter of law. When return of the writing is not required by law, the decision voluntarily to return such a writing or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.
Law Firms and Associations
Section five of the Rules pertains to Law Firms and Associations. Included is this section are rules addressing the responsibilities of supervisory and subordinate lawyers as to each other and the responsibilities of lawyers as to nonlawyer employees (Rules 5.1 through 5.3). These rules are particularly ripe for review as law practices adjust to the times in which we live, including transitioning to remote work. In sum, it’s a lawyer’s responsibility to make sure the conduct of those she supervises comports with the lawyer’s own professional responsibility obligations. Now is the time to update (or finally write down!) your office policies on important issues like handling confidential information outside of the office and minimum cybersecurity requirements. Talk with your peers, consult a professional—just take the time necessary to not merely complete the task, but to do it well. As Joey said, “Dude, you can’t just make stuff up!”
This section also contains rules addressing the unauthorized practice of law (Rule 5.5), restrictions on the right to practice (Rule 5.6), responsibilities regarding law-related services (Rule 5.7), and professional independence of lawyers (Rule 5.4). Based in part on the changing landscape of online marketing of legal services, the provision on fee sharing in Rule 5.4 was amended in 2019. Rule 5.4(a)(6) now provides that a lawyer “may pay a portion of a legal fee to a credit card processor, group advertising provider, or online marketing platform if the amount paid is for payment processing or for administrative or marketing services, and there is no interference with the lawyer’s independent professional judgment or with the client-lawyer relationship.” Comment [2] to Rule 5.4 provides:
A determination under paragraph (a)(6) of this rule as to whether an advertising provider or online marketing platform (jointly “platform”) will interfere with the independent professional judgment of a lawyer requires consideration of a number of factors. These factors include, but are not limited to, the following: (a) the percentage of the fee or the amount the platform charges the lawyer; (b) the percentage of the fee or the amount that the lawyer receives from clients obtained through the platform; (c) representations made to prospective clients and to clients by the platform; (d) whether the platform communicates directly with clients and to what degree; and (e) the nature of the relationship between the lawyer and the platform. A relationship wherein the platform, rather than the lawyer, is in charge of communications with a client indicates interference with the lawyer’s professional judgment. The lawyer should have unfettered discretion as to whether to accept clients from the platform, the nature and extent of the legal services the lawyer provides to clients obtained through the platform, and whether to participate or continue participating in the platform. The lawyer may not permit the platform to direct or control the lawyer’s legal services and may not assist the platform to engage in the practice of law, in violation of Rule 5.5(a).
There is a lot of talk nationally surrounding Rule 5.4’s prohibition on fee-sharing with nonlawyers, particularly in the western part of the country where states like Utah and Arizona have recently eliminated the prohibition all together. The State Bar Council is currently studying developments in other jurisdictions, and they certainly make for an interesting read if you are so inclined.
Public Service
Section six of the rules is entitled “Public Service.” This is an extremely important section of the Rules of Professional Conduct, but one that does not get enough attention. Rule 6.1 (Voluntary Pro Bono Publico Service) provides that every lawyer has a professional responsibility to provide legal services to those unable to pay and that lawyers “should aspire to render at least (50) hours of pro bono publico legal services per year.” Rule 6.1 reiterates the sentiment set out in the preamble that it is the basic responsibility of each lawyer to provide public interest legal services without fee, or at a substantially reduced fee, “in such areas as poverty law, civil rights, public rights law, charitable organization representation, and the administration of justice.” Comment [5] to Rule 6.1 notes that constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers and judges from performing certain pro bono services. These limitations are also discussed in 2014 FEO 3. These lawyers are encouraged to participate in activities aimed at improving the law, the legal system, or the legal profession. Rule 6.1(b)(2).
To facilitate lawyers’ participation in pro bono publico legal services, the rules as to conflicts of interest are “relaxed” in certain scenarios involving these services. For example, Rule 6.3 encourages lawyers to serve as directors, officers, or members of a legal services organization, apart from the law firm in which the lawyer practices. The rule provides that a lawyer may participate in such legal services organizations even if the organization serves persons having interests adverse to a client of the lawyer. Similarly, Rule 6.4 states that a lawyer may serve as a director, officer, or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. In addition, Rule 6.5, which pertains to limited legal services programs, provides that a lawyer who “under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
Information About Legal Services
Most lawyers are familiar with section seven of the Rules of Professional Conduct. Section seven contains all of the advertising rules. Because the advertising rules are currently undergoing comprehensive revision, you might want to hold off on a review of this section. Stay tuned for more to come on these rules.
Maintaining the Integrity of the Profession
And last, but definitely not least, section eight of the Rules of Professional Conduct deals with maintaining the integrity of the profession. Section eight contains some of the “heavy-hitting” rules, including the prohibition on a lawyer committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer (Rule 8.4(b)), the prohibition on conduct that is dishonest, fraudulent, deceitful, or constitutes a misrepresentation (Rule 8.4(c)), and the oft-described “catch-all” provision prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice (Rule 8.4(d)). Section eight also reaffirms the opinion set out in the preamble that self-regulation of the legal profession is necessary to “maintain the legal profession’s independence from government domination.” Rule 8.3 (Reporting Professional Misconduct) specifically supports the statement in paragraph 16 of the preamble that provides that every lawyer is responsible for observance of the Rules of Professional Conduct and for “securing their observance by other lawyers.” For a detailed discussion of a lawyer’s reporting duties under Rule 8.3, take a look at the Summer 2014 State Bar Journal article “I’m Telling Mom! Reporting Professional Misconduct.”
Importantly, section eight also contains a rule similar to Rule 3.8(g). While Rule 3.8(g) is limited to prosecutors, Rule 8.6 discuses all lawyers’ disclosure duties when the lawyer knows of credible evidence or information that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted.
I haven’t specifically addressed each and every rule of professional conduct in this article. There are a lot of rules and a whole heck of a lot of comments to the rules. We all have a professional responsibility to be familiar with these rules and comments. If you have made it to the end of this article, you’re off to a really good start. The next thing I would suggest is that you read the table of contents to the Rules of Professional Conduct. In the 2019 and 2020 Handbook, the table of contents is on page “Rules of Prof’l Conduct 9-1.” When you come across a rule with which you are not familiar (and you will), make a note to read that rule and the comments. Before you know it, you will be as familiar with the Rules of Professional Conduct as Joey Tribbiani is with the states—he was able to name 56 of them.