1. phone: 866-466-2253 • web: www.nacle.com • email: info@nacle.com
Ethical Issues in Supervising Others:
Can Their Misconduct Become Yours?
Instructors:
Ronald Minkoff, Esq.
Frankfurt Kurnit Klein & Selz PC
488 Madison Avenue
New York, New York 10022
212.705.4837
rminkoff@fkks.com

2. Ethical Issues in
Supervising Others:
Can Their Misconduct
Become Yours?
Ronald C. Minkoff, Frankfurt Kurnit Klein + Selz PC
National Academy of Continuing Legal Education

3. I. Supervisory Duties of Firm
Managers

4. The Various Dimensions
a) Ethical
b) Civil
c) Criminal

5. Ethical consequences of failure
to supervise:
Professional Discipline

6. Potential Civil Claims
• Malpractice
• Breach of Fiduciary Duty
• Conversion

7. Hypothetical 1
Ted, Sharon and Bill are partners in the law firm of Meta,
Mega & Bigg, a firm with 700 lawyers worldwide. Ted is a
corporate partner, Sharon is the head of that department,
and Bill is the manager of the entire firm. In structuring a
lending transaction for a bank client, Ted forgets to ask for
or obtain a security interest from the borrower, who
defaults shortly thereafter, leaving the bank high and dry.
The bank sues Ted, Sharon and Bill, as well as the firm, for
malpractice.
Are all three liable? Will the legal form or structure of the
firm matter? The size of the firm? Are there any
disciplinary risks here?

8. Can You Hide Behind a PC or
LLP Structure?

9. Not Ted!
• No matter what type of firm you are in
– General Partnership, PC or LLP – you
are always personally liable for your
own tortious conduct.

10. Not Sharon!
• In PC and LLP, partners remain
liable for:
a) Their own acts; and
b) The acts of those they directly
supervise
(Exact scope of protection may vary by jurisdiction) –
See L. Corwin and A. Ciampi, Law Firm Partnership
Agreements, § 2.03[3] at 2-46, § 2.04[4] at 2-70 (Law
Journal Press 2007).

11. Bill can hide!
• He is not Ted’s direct supervisor.

12. What about ethics?
Model Rule 5.1(b) Responsibilities of a
Partner or Supervisory Lawyer:
“A lawyer having direct supervisory
authority over another lawyer shall
make reasonable efforts to ensure that
the other lawyer conforms to the Rules
of Professional Conduct.”

13. Can malpractice result in a
disciplinary violation?
Model Rule 1.1 Competence:
“A lawyer shall provide competent
representation to a client. Competent
representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.”

14. “Thoroughness and Preparation
[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.”
Comment 5 to Rule 1.1

15. Hypothetical 2
Carly and James are partners in their own firm. Carly has
great client relationships, and is a workhorse besides – she
makes the rain. James supports Carly, who has ceded to
him all administrative functions, including managing the
firm IOLA/IOLTA account. After five years together, a
routine audit resulting from a bounced check reveals that
James has embezzled $1 million in client funds from the
IOLA/IOLTA account. The disciplinary authorities bring
charges not just against James, but against Carly as well.
What would be the basis for those charges? Are they
likely to succeed in imposing discipline?

16. “A partner in a law firm, and a lawyer
who individually or together with other
lawyers possesses comparable
managerial authority in a law firm,
shall make reasonable efforts to ensure
that the firm has in effect measures
giving reasonable assurance that all
lawyers in the firm conform to the
Rules of Professional Conduct.”
Model Rule 5.1 (a)

17. “[A] lawyer having direct
supervisory authority over [a]
nonlawyer shall make reasonable
efforts to ensure that the person's
conduct is compatible with the
professional obligations of the
lawyer.”
Model Rule 5.3 (b)

18. Two examples:
• Matter of Posner, 2014 NY Slip Op. 02596
(App. Div., 2nd Dept., Apr. 16, 2014)
• Matter of Fonte, 75 A.D.3d 199, 905 N.Y.S.2d
173 (N.Y. App. Div. 2010).

19. Other examples where partners disciplined for
failure to supervise and prevent fellow partners’
disciplinary violations:
• In re Anonymous, 724 N.E.2d 1101 (Ind. 2000)
(failure to ensure partner to whom lawyer
referred case did not allow case to languish)
• In re Roswold, 249 P.3d 1199 (Kan. 2011)
(failure of one partner to supervise out-of-state
partner handling case, who committed ethical
violations)

20. Hypothetical 3
Carly and James both work in the NYS Attorney General’s office.
Carly is the supervisor of the Medicaid Fraud unit, and James a
staff attorney. The AG’s office is conducting a large Medicaid fraud
investigation against a Harlem medical practice, Cuddup &
Hurtem. Much of the AG’s case is based on a cooperating witness,
Tad L. Tale, who used to work as a nurse at C&H. Part of the case
involves large cash-payoffs to C&H’s office manager, to look the
other way, and one of those payments, for $50,000, was seized as
evidence in a raid on C&H’s office. The case is on trial, and one day
it ends so late that the AG’s evidence locker is closed. Tale offers to
hold the money for the night, and Carly, knowing that Tale faces
massive jail time if anything goes wrong, lets him do it, over
James’s objections. Tale absconds with the money, and is last
heard from in Costa Rica. The scandal explodes, and disciplinary
authorities get involved.
Are there disciplinary violations here? If so, who is responsible
for them? Under what provisions can Carly be held liable?

21. Defining a supervisor’s responsibilities
in a prosecutor’s office:
• ABA Formal Op. 467 (2014)
• ABA Formal Op. 09-454 (2009)
• Applies to any public law office

22. What do the Rules say?
• Rules 5.1 and 5.3 (already discussed)
• Rule 1.0, Comm. 3: “Law firm” includes legal
department of “governmental organization”
• Rule 3.8, Comm. 6: Prosecutors have obligation to
supervise lawyers and nonlawyers working in their
offices.

23. ABA Formal Op. 467 (2014) –
distinguishes between:
a) Managerial responsibility (Rule 5.1(a)) –
responsibility over entire organization
b) Supervisory responsibility (Rule 5.1(b)/5.3(b)) –
responsibility over group of lawyers and non-
lawyers within organization
c) Responsibility for another’s conduct (Rule
5.1(c)/5.3(c) – ordering or ratifying the conduct of
another.

24. II. Supervising Subordinate
Lawyers

25. Hypothetical 4
Same facts as (3). Assume that Carly’s acts are
ultimately held to be a disciplinary violation by the Third
Department, after a vigorous oral argument and over
two dissents.
Can James get in trouble with the disciplinary
authorities? What defense can he raise?

26. a) A lawyer is bound by the Rules of
Professional Conduct notwithstanding that
the lawyer acted at the direction of another
person.
b) A subordinate lawyer does not violate the
Rules of Professional Conduct if that lawyer
acts in accordance with a supervisory
lawyer's reasonable resolution of an arguable
question of professional duty.
Model Rule 5.2 – Responsibilities
of a Subordinate Lawyer

27. James’s Defense Will Succeed
• May not violate Rule 4.2 at all.
• Even if it did, lawyer made a
“reasonable resolution of arguable
question of professional duty.”

28. Hypothetical 5
Same case as (3), except some different facts. This time,
Tab hands Carly and James in a private meeting a large
stack of documents which are very unfavorable to the
AG’s case. Carly instructs James to place the documents
in a folder and give them to her. The documents never
get produced in discovcry, despite being clearly covered
by the defendant’s document request. James, fearful for
his job, follows Carly’s instruction and keeps the
documents hidden. The deception comes to light during
a deposition, and the opposing party files a disciplinary
complaint against James.
What defense should James raise in the disciplinary
proceeding? Will that defense succeed under the
applicable rules?

29. James’s Defense Won’t Succeed
No “arguable question
of professional duty.”

30. Hypothetical 6
James is very troubled by Carly’s instruction in (5), so he
decides to raise the issue with Carly’s supervisor, Deputy
Attorney General Andrew Smith. Smith says he’ll discuss the
matter with Carly.
What are the options Smith can discuss with Carly?

31. Hypothetical 7
Same as 6. After speaking with Carly, Smith comes back and
says the decision remains the same and James is expected to
carry it out. “If you don’t, we’ll find someone who will.”
James is still troubled, but doesn’t want to buck his bosses.
Is he obligated to do more? What are his options here? Can
James reveal his concerns anonymously to the Press? If he
gets fired, can he raise these issues in a complaint for
wrongful termination?

32. Up-the-Ladder Rule: NY RPC 1.13

33. Lawyer knows that another organization
employee is engaged or intends to engage in
actions which either:
a) Violate “a legal obligation to the
organization” or violate the law; or
b) Is likely to result in substantial injury to the
organization
What triggers the rule?

34. • If either (a) or (b) met, “lawyer shall
proceed as reasonably necessary in the best
interest of the organization”
• As long as: Any measures taken “are designed
to minimize disruption of the organization
and the risks of revealing information
relating to the representation to persons
outside the organization.”

35. Examples:
a) Asking reconsideration of the matter;
b) Advising that an independent legal opinion
be sought; and
c) Referring the matter to a higher authority
within the organization and, if matter
sufficiently serious, to the highest authority.
No clear course of action – what
to do depends on several factors.

36. a) Clearly in violation of law; and
b) Likely to result in substantial injury to the
organization
If the highest authority insists on
action that is:

37. (x) reveal confidential information to the
extent permitted under Rule 1.6; and/or
(y) may resign from the organization under
Rule 1.16
Lawyer may:

38. III. Supervision of Co-Counsel

39. In addition to having James work on the case, Carly
also has a co-counsel, Mal Practice, who works at the
local DA’s office, helping on the matter. Mal
commits an ethical violation on the case which Carly
did not catch.
Did Carly have an ethical or legal obligation to
supervise Mal’s work?
Hypothetical 8

40. • MR 5.1 not limited tosupervision within same
firm or law office.
• MR 5.1(b) refers to “lawyer having direct
supervisory authority over another”
• MR 5.1(c) refers to alawyer being “responsible
for another lawyer’s violation” if lawyer orders
it, ratifies it,or fails to mitigate it.
• See, e.g., Kentucky Bar Ass’n v. Mills, 318
S.W.2d 89(Ky. 2010) (lawyer not only
defrauded own clients in mass tort litigation
but also ratified co-counsel’s misconduct).

41. IV. Supervision of Nonlawyer
Employees

42. Hypothetical 9
Same basic facts as above. Carly hires a new paralegal to help
on the case. The paralegal: (a) fails to reveal that in her prior
job, she did a great deal of work for the C&G on other cases,
but had no involvement with this case; and (b) produces
several privileged documents to the other side, despite
James’s effort to spot-check the document production.
What are the AG’s office’s ethical obligations here? Carly’s?
James’s?

43. Hypothetical 9, Subsection (a)
• Should the firm have interviewed the
paralegal with respect to her prior work?
• Does the firm have a conflict of interest
based on the paralegal’s prior work for the
bank?

44. Comment [4] to Model Rule 1.10 indicates that a conflict
of a nonlawyer is not imputed to the organization as a
whole:
• [The rule in paragraph (a) also does not prohibit
representation by others in the law firm where the person
prohibited from involvement in a matter is a nonlawyer, such
as a paralegal or legal secretary. Nor does paragraph (a) prohibit
representation if the lawyer is prohibited from acting because of
events before the person became a lawyer, for example, work that
the person did as a law student. Such persons, however,
ordinarily must be screened from any personal
participation in the matter to avoid communication to others
in the firm of confidential information that both the nonlawyers
and the firm have a legal duty to protect. See Rules 1.0(k) and
5.3.
Accord, Restatement (Third) of the Law Governing
Lawyers §123 cmt. f (2000).

45. ABA Informal Ethics Op. 88-1526 (1988):
• A law firm that employs a nonlawyer who formerly was
employed by another firm may continue representing
clients whose interests conflict with the interests of clients
of the former employer on whose matters the nonlawyer
has worked, as long as the employing firm screens the
nonlawyer from information about or participating in
matters involving those clients and strictly adheres to the
screening process described in this opinion and as long as
no information relating to the representation of the clients
of the former employer is revealed by the nonlawyer to
any person in the employing firm. In addition, the
nonlawyer's former employer must admonish the
nonlawyer against revelation of information relating to
the representation of clients of the former employer.

46. • In Hodge v. UFRA-Sexton, LP, No. S13G1626, 2014 BL
124672 (Ga. May 05, 2014), the Georgia Supreme Court
was faced with a motion to disqualify a law firm based on
the fact that its paralegal had worked for an opposing
party at another firm. The paralegal was not asked to
work on the case at the new firm, and found out about the
situation six months after she was hired. The firm
promptly implemented screening procedures.

47. Hodge, cont’d
• Her firm notified opposing counsel (after two
months), who then filed a motion to disqualify.
The Georgia Supreme Court held in a case of
first impression that paralegals could be
screened from the case in the same way as judges,
arbitrators and government lawyers. Private
lawyers in Georgia cannot cure a conflict by
screening.

48. Hodge, cont’d
• After reviewing the “minority rule,” that does not
allow screening of nonlawyer employees, and the
“majority rule,” which does, the court stated:
– [W]e join today with "the majority of professional
legal ethics commentators, ethics tribunals, and courts[,
which] have concluded that nonlawyer screening is a
permissible method to protect confidences held by
nonlawyer employees who change employment."
Id. at 4. [Citation omitted.]

49. Other Authorities:
Maine Ethics Op. 186 (2004) (screening of nonlawyer
employee with conflict of interest may fulfill obligation to
make reasonable efforts to ensure that nonlawyer's
conduct is compatible with lawyer's professional
obligations); Mississippi Ethics Op. 258, 28 Law. Man.
Prof. Conduct 60 (2011). Pennsylvania Ethics Op. 98-75.
Nonlawyers should be instructed to notify the firm of any
personal or financial conflicts of interest that may arise
after they are hired.
From ABA/BNA Lawyers’ Manual on Professional
Conduct, at 91:205.

50. Model Rule 5.3, “Responsibilities Regarding
Nonlawyer Assistance,” provides:
• With respect to a nonlawyer employed or retained
by or associated with a lawyer:
a) a partner, and a lawyer who individually or together
with other lawyers possesses comparable managerial
authority in a law firm shall make reasonable efforts to
ensure that the firm has in effect measures giving
reasonable assurance that the person's conduct is
compatible with the professional obligations of the
lawyer;
Hypothetical 9, Subsection (b)

51. Model Rule 5.3 cont’d
(b) a lawyer having direct supervisory authority over the
nonlawyer shall make reasonable efforts to ensure
that the person's conduct is compatible with the
professional obligations of the lawyer; and

52. Model Rule 5.3 cont’d
(c) a lawyer shall be responsible for conduct of such a
person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in
the law firm in which the person is employed, or has direct supervisory
authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial action.
Twenty-one jurisdictions have modified this rule in some way.

53. ABA Informal Ethics Op. 88-1526 (1988)
• “Under Model Rule 5.3, lawyers have a duty to make
reasonable efforts to ensure that nonlawyers do not
disclose information relating to the representation of
lawyers’ clients while in the lawyer's employ and
afterwards.”

54. ABA Formal Ethics Op. 95-398 (1995)
• A lawyer who gives a computer maintenance company
access to information in client files must make reasonable
efforts to ensure that the company has in place, or will
establish, reasonable procedures to protect the
confidentiality of client information. Should a significant
breach of confidentiality occur, the lawyer may be
obligated to disclose it to the client.

55. Utah State Bar v. Jardine, 289 P.3d 516 (Utah Oct. 2, 2012)
• Lawyer was fired by client, and upon request, sent client’s
file to new lawyer. Lawyer’s assistant inadvertently
included another client’s file as well. The district court
found that Mr. Jardine violated Rule 1.6, Confidentiality
of Information. Mr. Jardine had not been charged with a
violation of Rule 5.3. The Supreme Court stated:
Cont’d

56. • Nothing in rule 1.6 states that an employee's misconduct
is imputed to the lawyer. The policies underlying the
Rules of Professional Conduct are directed toward the
behavior of the lawyer. It is true that a lawyer has some
responsibility for the professional misconduct of his
employees, but those responsibilities are defined by rule
5.3. Because the error of Mr. Jardine's secretary
cannot be imputed to Mr. Jardine as a violation of
a rule of professional conduct, we conclude that the
district court erred in determining that Mr. Jardine
violated rule 1.6.

57. Elliot operates his own law firm. He relies heavily upon the
services of the office’s accounting manager, Judy. Judy
provides Elliott with monthly reports of items under his
watch, including transactions in the trust account. Elliot
switches outside accounting firms for the first time in more
than 10 years, and the new auditors find that more than
$600,000.00 has gone missing over the past five years, and
that much of it went into a bank account in the name of
Judy’s mother. After Judy pleads guilty to embezzlement, the
disciplinary authorities bring charges against Elliott.
What would be the basis for those charges? Are they likely
to succeed in imposing discipline?
Hypothetical 10

58. • Courts in disciplinary proceedings under Rule 5.3 show
little sympathy to managers and supervisors who paint
themselves as victims of their miscreant nonlawyer
assistants, claim they were duped, try to shift the blame,
or assert that they were just too busy.
ABA/BNA Lawyers’ Manual on Professional Conduct, at 91:204.

59. From In re Galasso, 19 N.Y. 2d 688, 978 N.E.2d 1254 (N.Y.
10/23/12), suspension upheld on remand, 2012 WL
6607414 (2d Dep't 2012):
• Respondent is not bound to his clients solely by the contractual
language of the escrow agreement, but also by a fiduciary
relationship. “A trustee is held to something stricter than the
morals of the market place. Not honesty alone, but the punctilio of
an honor the most sensitive, is then the standard of behavior.”
Respondent owed his clients a high degree of vigilance to
ensure that the funds they had entrusted to him in his fiduciary
capacity were returned to them upon request.

60. From Galasso, cont’d
• [I]mplementation of any of the basic measures respondent has
since adopted – personal review of the bank statements,
personal contact with the bank and improved oversight of
the firm's books and records – likely would have mitigated, if
not avoided, the losses. Here, although respondent himself did not
steal the money and his conduct was not venal, his acts in setting
in place the firm's procedures, as well as his ensuing omissions,
permitted his employee [Mr. Galasso’s brother] to do so.

61. From Galasso, cont’d
• To be clear, respondent is not being held responsible for the
criminal behavior of his brother [who misappropriated millions of
dollars]. Rather, it is his own breach of his fiduciary duty and
failure to properly supervise his employee, resulting in the
loss of client funds entrusted to him, that warrant this disciplinary
action.

62. • Failure to closely monitor nonlawyers' dealings
with client funds is perhaps the most common type
of lapse resulting in discipline under Rule 5.3.
ABA/BNA Lawyers’ Manual on Professional Conduct, at 91:217.

63. In re Cater, 887 A.2d 1, 13 – 14, 15(D.C. Ct. App. 2005)
• A majority of the Board of Professional Responsibility held
that the respondent was not accountable for her assistant’s
embezzlement. The Board was reversed by the D. C. Court
of Appeals:
• “[T]here can be no dispute that the regular and periodic
review of the bank statements is a critical element of the
duties of an attorney who is charged with protecting and
accounting for entrusted funds." [quote from dissent
below]

64. Cater cont’d
• “[W]e think the evidence establishes clearly and
convincingly that respondent did not ‘make reasonable
efforts to ensure’ that her secretary's conduct would be
compatible with her professional obligations as a lawyer, as
Rule 5.3(b) required. So far as appears, respondent made
no such efforts, reasonable or otherwise . . . .”

65. Cater cont’d
• “In important matters such as the maintenance of financial
records for a conservatorship and the monitoring (or
handling) of client funds, there must be some system of
timely review and internal control to provide reasonable
assurance that the supervising lawyer will learn whether
the employee is performing the delegated duties honestly
and competently or not. If no such system is in place, it will
not do for a lawyer to profess ignorance of the employee's
dishonesty or incompetence. Internal controls and
supervisory review are essential precisely because employee
dishonesty and incompetence are not always identifiable in
advance.”

66. V. Supervision of Law Students

67. Hypothetical 11
Jean-Paul just finished his first year in law school and is thrilled at
landing a job at the AG’s office. His lawyer mentors have him sit in
on meetings with key witnesses, research issues relevant to the
clients’ cases, and sit in on an ongoing trial. He wants to keep all of
his friends posted on what he is doing, so he regularly posts on his
social media account. One day he sits in on a trial session while a
key witness for the AG was testifying. “Man,” he tells his social
media friends, “this guy was a real jerk. He talked all the time and
wouldn’t listen to the questions. And I’m not sure that everything
he’s saying is truthful.” The next day Jean-Paul’s supervisor
receives a call from a reporter, asking him to verify Jean-Paul’s
employment at the AG.
Are there any ethical issues raised by this scenario? Would the
answer be different if Jean-Paul’s comment were about a witness
for the opposing party?

68. Moral of the story:
• Don’t assume law clerks know about Rule 1.6,
Confidentiality of Information, or any other
Rule of Professional Conduct.
• Supervision should be broad and perhaps a law
clerk manual should be created.

69. Hypothetical 12
Marie is a law clerk with a small law firm. She is between her
second and third year of law school. She and her lawyer mentor are
meeting with a client who is having trouble deciding whether to
make a claim for injuries he claims to have received while
imprisoned. He says that the prison guards beat him. While the
lawyer stepped out of the meeting room to take a call, Marie and
the client continue to discuss his case. “How much time do I have
to make a decision?” he asks. “Don’t worry,” she says, “The statute
of limitations in this state is two years.” Marie does not realize that
the former inmate had administrative remedies he must pursue
before filing suit. Eighteen months later he returns to the law
office to instruct his lawyer to file suit. The lawyer discovers Marie
provided the client with the wrong advice. Marie is a lawyer now.
What exposure does Marie have to disciplinary sanctions? What
exposure does her employer have?

70. • If by giving the advice, Marie engaged in the
unauthorized practice of law, a crime, she
can be disciplined for that as a lawyer.
• It is highly unlikely that Marie disclosed on
her application to the bar that she had
engaged in criminal activity while a law
clerk. Therefore, she has engaged in
dishonest conduct by failing to disclose that
criminal activity on her application.

71. Model Rule 8.4, “Misconduct,” states in
pertinent part:
• It is professional misconduct for a lawyer to:
. . .
(b) commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of
justice;

72. Model Rule 8.1(a), “Bar Admission and
Disciplinary Matters,” states, in pertinent
part:
• An applicant for admission to the bar . . . shall not:
• Knowingly make a false statement of material fact;
• Fail to disclose a fact necessary to correct a
misapprehension known by the person to have arisen
in the matter, or knowingly fail to respond to a lawful
demand for information from an admissions or
disciplinary authority, except that this rule does not
require disclosure of information otherwise protected
by Rule 1.6.

73. • See In re Stamps, 03-2985, 874 So.2d 113
(La. 2004) for a case in which a husband
and wife worked for an out-of-state lawyer
while studying for the bar and engaged in
the unauthorized practice of law. After their
admission, the UPL came to light, and they
were disbarred.

74. • Does Marie’s employer have exposure for
failing to properly supervise Marie?
• What about the employer’s failure to
counsel the client about the need to timely
exhaust administrative remedies?

75. Ronald C. Minkoff
(212) 705 4837
rminkoff@fkks.com

76. SUPERVISIONIRESPONSIBILITY HYPOS
1. Ted, Sharon and Bill are partners in the law firm of Meta. Mega & Bigg. a firm with
700 lawyers world-wide. Ted is a corporate partner. Sharon is the head of that
department. and Bill is the manager of the entire firm. In structuring a lending
transaction for a bank client. Ted forgets to ask for or obtain a security interest from
Ihe borrower, who defau]Is shorllv thereafter, leaving Ihe bank high aM dry. The
bank sues Ted, Sharon and Bill, us well as the firm, fix malpractice. Are all three
liable? Will the legalform or structure ofthe firm matter? The size ofthe firm? Are
there any disciplinary risks here?
2. Carly and James are partners in their own firm. Carly has great client relationships,
and is a workhorse besides — she makes the rain. James supports Carly, who has
ceded to him all administrative functions, including managing the firm IDLA/IOLTA
account. After five years together. a routine audit resulting tiom a bounced check
revea[s that James has embezzled SI million in client fUnds from the IOLA/IOLTA
account. The disciplinary authorities bring charges not just against James, but against
Car]y as well. IThat would be the hasts for those cha,gcs? Are they likeir to succeed
in imposing disczline?
3. Carly and James both work in the NYS Attorney General’s office. Carly is the
supervisor of the Medicaid Fraud unit, and James a staff attorney. The AG’s office is
conducting a large Medicaid fraud investigation against a Harlem medical practice,
Cuddup & Hurtein. Much of the AG’s case is based on a cooperating witness, Tad L.
Taje. who used to work as a nurse at C&fl. Pail of the case involves large cash-
payoffs to C&H ‘s office nlalrnger. to look the other way, and one of those payments.
fbr 550.000, was seized as evidence in a raid on C&H’s office. The case is on trial.
and one day it ends so late that the AG’s evidence locker is closed. Tale offers to
hold the money for the night. and Carly, knowing that Tale faces massivejail time if
anything goes wrong, lets him do it, over James’s objections. Tale absconds with the
money, and is last heard from in Costa Rica. The scandal explodes, and disciplinary
authorities get involved. Are there disciplinaty violations here? Ifso, who is
responsible/hr them? Under what provisions can C’arly be held liable?
4. Same tàcts as (3). Assume that CarEy’s acts are ultimately held to he a disciplinary
violation by the Third Deparimeni. after a vigorous oral argument and over two
dissents. Can James get in trouble with the disciplinary authorities? What defense
can he raise?
5. Same case as (3). except some different facts. This time. Tah hands Carly and James
in a private meeting a large stack of documents which are very unfavorable to the
AG’s case. Carly instructs James to place thc documents in a thider and ve them to
her. The documenis never get produced in discovery. despile being clcarly covered
by the defendant’s document requesi. James, fearful for his job, follows Carly’s
instruction and keeps the documenis hidden. The deception comes to light during a

77. deposition, and the opposing party files a disciplinary complaint against James. What
deJènse .yhould James raise in the disciplinary protect/mg? Will that defense succeed
utuler the applicable rules?
6. James is very troubled by Carlv’s instruction in (5). so he decides to raise the issue
with Carly’s supervisor. Deputy Attorney General Andrew Smith. Smith says hc’ll
discuss the matter with Carlv. What are I/ic options Smirk can discuss ,ith Cariv?
7. Same as 6. After speaUng with Carly. Smith comes back and says the decision
remains the same and James is expected to carry it out. “If you don’t, we’ll find
someone who wilL” James is still troubled. hut doesn’t want to buck his bosses. Is he
obligated to do more? What are his options here? Can James reveal his concerns
unonrn,ouslv to the Press? Ifhe gets fired, can he race these issues in a complami
for wiongfiu! termination?
8. In addition to having James work on the case. Carly also has a co-counsel, Mal
Practice, who works at the local DA’s office, helping on the matter. Mal commits an
ethical violation on the ease which Carly did not catch. Did the AG s office or Cony
have an ethical or legal obligation to supervise Mat’s work?
9. Same basic Facts as above. Carly hires a new paralegal to help on the case. The
paralegal: (a) fails to reveal that in her prior job, she did a great deal of work for the
C&G on other cases, but had no involvement with this case; and (b) produces several
privileged documents to the other side, despite James’s effort to spot-check the
document production. What are the AG s offices ethical obligations here? Cant s?
James s?
10. Elliott is the AG. He relies hea’ilvun the senices of the office’s accounting
manager. Judy. Judy provides Elliott with monthly reports of items under his watch.
including transactions in the trust account. The AGs office switches outside
accounting flrms for the first time in more than 10 years. and the new auditors find
that more than $600000.00 has gone missing over the past five years. and that much
of it went into a bank account in the name of Judy’s mother. After Judy pleads guilty
to embezzlement, the disciplinary authorities bring charges against Elliott. What
would be the basis for those chaiges? Are i/zn likel to succeed in imposing
discipline?
II. Antoine has a large volume plaintiffs’ practice, mainly based upon vehicular
accidents. He is going over the list of new clients signed that month, when his
secretary Belinda comes into the office. See that new client. Deacon John? I ran
into him at the doctor’s officc and told him he should sign up with you. I had a
contingency fee contract in my purse and he sigied it in the doctor’s office.” Antoine
doesn’t care how the new client got to the firm, he is just glad to have the case
because the liability is certain and the injuries are severe. Are there any ethical issues
raised by this scenario?

78. 12. Jean-Paul just finished his ifrst year in law school and is thrilled a landing ajob at
the AG’s office. His lawyer mentors have him sit in on meetings with key witnesses.
research issues relevant to the clients’ cases, and sit in on an ongoing trial. He wants
to keep all of his friends posted on what he is doing, so he regularly posts on his
social media account. One day he sits in on a trial session while a key witness for the
AG was testiMng. “Man,” he tells his social media friends, this guy was a real jerk.
He lanced a]] the time and wou]dn’t lisien 10 the questions. And I’m not sure that
evervihing hes saying is truthful. The next day Jean-Paul’s supen isor receives a
call from a reporter. asking him to verify Jean-Pau]s employment at the A0 Are
there any ethical issues raised b’ this scenario? Would the answer be Iiffr,-ent if
Jean-Paul’s comment were about a iituess for the opposing party?
I 3. Marie is a ]aw clerk with a small law firm. She is between her second and third year
of law school. She and her lawyer mentor are meeting with a cli ent who is having
trouble deciding whether to make a claim for injuries he claims to ha’e received
while imprisoncd. He says that the prison guards beat him. While the lawyer stepped
out of the meeting morn to take a call. Marie and the client continue to discuss his
case. “How much time do I have to make a decision?” he asks. “Don’t ‘VOITv” she
says, “The statute of [imitations in this stare is two ‘ears.” Marie does not realize that
the former inmate had administrative remedies he must pursue before filing suit.
Eighteen months later he returns to the [aw oce to instruct his lawyer to file suit.
The ]awyer discovers Marie provided the client with the wrong advice. Marie is a
lawyer now. TJirnt exposure does Marie have to disciplinary sanctions? What
exposure does her employer have?

79. Rule 1.0: Terminology
Client-Lawyer Relationship
Rule 1.0 Terminology
(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be
true. A person's belief may be inferred from circumstances.
(b) "Confirmed in writing," 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 (e) for the definition of "informed
consent." If it is not feasible to obtain or transmit the writing at the time the person gives informed
consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation,
sole proprietorship or other association authorized to practice law; or lawyers employed in a legal
services organization or the legal department of a corporation or other organization.
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law
of the applicable jurisdiction and has a purpose to deceive.
(e) "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.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's
knowledge may be inferred from circumstances.
(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a
professional corporation, or a member of an association authorized to practice law.
(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of
a reasonably prudent and competent lawyer.
(i) "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.
(j) "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.
(k) "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.

80. (l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and
weighty importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body,
administrative agency or other body acting in an adjudicative capacity. A legislative body,
administrative agency or other body acts in an adjudicative capacity when a neutral official, after the
presentation of evidence or legal argument by a party or parties, will render a binding legal judgment
directly affecting a party's interests in a particular matter.
(n) "Writing" or "written" denotes a tangible or electronic record of a communication or
representation, including handwriting, typewriting, printing, photostating, photography, audio or
videorecording, 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.
Comment on Rule 1.0
Client-Lawyer Relationship
Rule 1.0 Terminology - Comment
Confirmed in Writing
[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives
informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a
lawyer has obtained a client's informed consent, the lawyer may act in reliance on that consent so
long as it is confirmed in writing within a reasonable time thereafter.
Firm
[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific
facts. For example, two practitioners who share office space and occasionally consult or assist each
other ordinarily would not be regarded as constituting a firm. However, if they present themselves to
the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be
regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated
lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual
access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to
consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as
a firm for purposes of the Rule that the same lawyer should not represent opposing parties in
litigation, while it might not be so regarded for purposes of the Rule that information acquired by one
lawyer is attributed to another.
[3] With respect to the law department of an organization, including the government, there is
ordinarily no question that the members of the department constitute a firm within the meaning of the
Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For
example, it may not be clear whether the law department of a corporation represents a subsidiary or

81. an affiliated corporation, as well as the corporation by which the members of the department are
directly employed. A similar question can arise concerning an unincorporated association and its local
affiliates.
[4] Similar questions can also arise with respect to lawyers in legal aid and legal services
organizations. Depending upon the structure of the organization, the entire organization or different
components of it may constitute a firm or firms for purposes of these Rules.
Fraud
[5] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized
as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to
deceive. This does not include merely negligent misrepresentation or negligent failure to apprise
another of relevant information. For purposes of these Rules, it is not necessary that anyone has
suffered damages or relied on the misrepresentation or failure to inform.
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a
client or other person (e.g., a former client or, under certain circumstances, a prospective client)
before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 1.2(c),
1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the
Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer
must make reasonable efforts to ensure that the client or other person possesses information
reasonably adequate to make an informed decision. Ordinarily, this will require communication that
includes a disclosure of the facts and circumstances giving rise to the situation, any explanation
reasonably necessary to inform the client or other person of the material advantages and
disadvantages of the proposed course of conduct and a discussion of the client's or other person's
options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client
or other person to seek the advice of other counsel. A lawyer need not inform a client or other person
of facts or implications already known to the client or other person; nevertheless, a lawyer who does
not personally inform the client or other person assumes the risk that the client or other person is
inadequately informed and the consent is invalid. In determining whether the information and
explanation provided are reasonably adequate, relevant factors include whether the client or other
person is experienced in legal matters generally and in making decisions of the type involved, and
whether the client or other person is independently represented by other counsel in giving the
consent. Normally, such persons need less information and explanation than others, and generally a
client or other person who is independently represented by other counsel in giving the consent should
be assumed to have given informed consent.
[7] Obtaining informed consent will usually require an affirmative response by the client or other
person. In general, a lawyer may not assume consent from a client's or other person's silence.

82. Consent may be inferred, however, from the conduct of a client or other person who has reasonably
adequate information about the matter. A number of Rules require that a person's consent be
confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in
writing," see paragraphs (n) and (b). Other Rules require that a client's consent be obtained in a
writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of "signed," see paragraph
(n).
Screened
[8] This definition applies to situations where screening of a personally disqualified lawyer is
permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.
[9] The purpose of screening is to assure the affected parties that confidential information known by
the personally disqualified lawyer remains protected. The personally disqualified lawyer should
acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect
to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed
that the screening is in place and that they may not communicate with the personally disqualified
lawyer with respect to the matter. Additional screening measures that are appropriate for the
particular matter will depend on the circumstances. To implement, reinforce and remind all affected
lawyers of the presence of the screening, it may be appropriate for the firm to undertake such
procedures as a written undertaking by the screened lawyer to avoid any communication with other
firm personnel and any contact with any firm files or other information, including information in
electronic form, 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 information, including information in electronic form, relating to
the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.
[10] In order to be effective, screening measures must be implemented as soon as practical after a
lawyer or law firm knows or reasonably should know that there is a need for screening.

83. Rule 1.1: Competence
Client-Lawyer Relationship
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment on Rule 1.1
Client-Lawyer Relationship
Rule 1.1 Competence - Comment
Legal Knowledge and Skill
[1] 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.
[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.
[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.
[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. See also Rule 6.2.
Thoroughness and Preparation
[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

84. 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 extensive treatment than matters of lesser complexity and consequence. An agreement between
the lawyer and the client regarding the scope of the representation may limit the matters for which
the lawyer is responsible. See Rule 1.2(c).
Retaining or Contracting With Other Lawyers
[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or
assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed
consent from the client and must reasonably believe that the other lawyers’ services will contribute to
the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority),
1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized
practice of law). The reasonableness of the decision to retain or contract with other lawyers outside
the lawyer’s own firm will depend upon the circumstances, including the education, experience and
reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the
legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the
services will be performed, particularly relating to confidential information.
[7] When lawyers from more than one law firm are providing legal services to the client on a
particular matter, the lawyers ordinarily should consult with each other and the client about the scope
of their respective representations and the allocation of responsibility among them. See Rule
1.2. When making allocations of responsibility in a matter pending before a tribunal, lawyers and
parties may have additional obligations that are a matter of law beyond the scope of these Rules.
Maintaining Competence
[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law
and its practice, including the benefits and risks associated with relevant technology, engage in
continuing study and education and comply with all continuing legal education requirements to which
the lawyer is subject.

85. Rule 1.13: Organization as Client
Client-Lawyer Relationship
Rule 1.13 Organization As Client
(a) A lawyer employed or retained by an organization represents the organization acting through its
duly authorized constituents.
(b) 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.
(c) Except as provided in paragraph (d), if
(1) 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
(2) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
Comment on Rule 1.13

86. Client-Lawyer Relationship
Rule 1.13 Organization As Client - Comment
The Entity as the Client
[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.
[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.
[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(f),
knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious.
[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 considerations. 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,

87. 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.
[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.
Relation to Other Rules
[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) - (6). 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 lawyer's representation of the
organization. If the lawyer's services are being used by an organization to further a crime or fraud by
the organization, Rules 1.6(b)(2) and 1.6(b)(3) may permit the lawyer to disclose confidential
information. 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.
[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.

88. [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.
Government Agency
[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 [18]. 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 a governmental organization, a different balance may be
appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or
rectified, for public business is 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.
Clarifying the Lawyer's Role
[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.
[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.
Dual Representation
[12] Paragraph (g) recognizes that a lawyer for an organization may also represent a principal officer
or major shareholder.
Derivative Actions

89. [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.
[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.

90. Rule 5.1: Responsibilities of a Partner or Supervisory
Lawyer
Law Firms And Associations
Rule 5.1 Responsibilities Of Partners,Managers, And Supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm
has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of
Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to
ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other
lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct
at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial
action.
Comment on Rule 5.1
Law Firms And Associations
Rule 5.1 Responsibilities Of Partners, Managers, And Supervisory Lawyers -
Comment
[1] Paragraph (a) applies to lawyers who have managerial authority over the professional work of a
firm. See Rule 1.0(c). This includes members of a partnership, the shareholders in a law firm
organized as a professional corporation, and members of other associations authorized to practice law;
lawyers having comparable managerial authority in a legal services organization or a law department
of an enterprise or government agency; and lawyers who have intermediate managerial
responsibilities in a firm. Paragraph (b) applies to lawyers who have supervisory authority over the
work of other lawyers in a firm.
[2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts
to establish internal policies and procedures designed to provide reasonable assurance that all lawyers
in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include
those designed to detect and resolve conflicts of interest, identify dates by which actions must be
taken in pending matters, account for client funds and property and ensure that inexperienced lawyers
are properly supervised.

91. [3] Other measures that may be required to fulfill the responsibility prescribed in paragraph (a) can
depend on the firm's structure and the nature of its practice. In a small firm of experienced lawyers,
informal supervision and periodic review of compliance with the required systems ordinarily will
suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise,
more elaborate measures may be necessary. Some firms, for example, have a procedure whereby
junior lawyers can make confidential referral of ethical problems directly to a designated senior
partner or special committee. See Rule 5.2. Firms, whether large or small, may also rely on continuing
legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the
conduct of all its members and the partners may not assume that all lawyers associated with the firm
will inevitably conform to the Rules.
[4] Paragraph (c) expresses a general principle of personal responsibility for acts of another. See also
Rule 8.4(a).
[5] Paragraph (c)(2) defines the duty of a partner or other lawyer having comparable managerial
authority in a law firm, as well as a lawyer who has direct supervisory authority over performance of
specific legal work by another lawyer. Whether a lawyer has supervisory authority in particular
circumstances is a question of fact. Partners and lawyers with comparable authority have at least
indirect responsibility for all work being done by the firm, while a partner or manager in charge of a
particular matter ordinarily also has supervisory responsibility for the work of other firm lawyers
engaged in the matter. Appropriate remedial action by a partner or managing lawyer would depend on
the immediacy of that lawyer's involvement and the seriousness of the misconduct. A supervisor is
required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that
the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a
matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to
correct the resulting misapprehension.
[6] Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on
the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because
there was no direction, ratification or knowledge of the violation.
[7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of
a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another
lawyer's conduct is a question of law beyond the scope of these Rules.
[8] The duties imposed by this Rule on managing and supervising lawyers do not alter the personal
duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 5.2(a).

92. Rule 5.2: Responsibilities of a Subordinate Lawyer
Law Firms And Associations
Rule 5.2 Responsibilities Of A Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at
the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in
accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional
duty.
Comment on Rule 5.2
Law Firms And Associations
Rule 5.2 Responsibilities Of A Subordinate Lawyer - Comment
[1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted
at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the
knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a
frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a
professional violation unless the subordinate knew of the document's frivolous character.
[2] When lawyers in a supervisor-subordinate relationship encounter a matter involving professional
judgment as to ethical duty, the supervisor may assume responsibility for making the judgment.
Otherwise a consistent course of action or position could not be taken. If the question can reasonably
be answered only one way, the duty of both lawyers is clear and they are equally responsible for
fulfilling it. However, if the question is reasonably arguable, someone has to decide upon the course of
action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided
accordingly. For example, if a question arises whether the interests of two clients conflict under Rule
1.7, the supervisor's reasonable resolution of the question should protect the subordinate
professionally if the resolution is subsequently challenged.

93. Rule 5.3: Responsibilities Regarding Nonlawyer
Assistant
Law Firms And Associations
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that the person's conduct is compatible with the professional
obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person
is employed, or has direct supervisory authority over the person, and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Comment on Rule 5.3
Law Firms And Associations
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance - Comment
[1] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable
efforts to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in
the firm and nonlawyers outside the firm who work on firm matters act in a way compatible with the
professional obligations of the lawyer. See Comment [6] to Rule 1.1 (retaining lawyers outside the
firm) and Comment [1] to Rule 5.1 (responsibilities with respect to lawyers within a firm). Paragraph
(b) applies to lawyers who have supervisory authority over such nonlawyers within or outside the firm.
Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such
nonlawyers within or outside the firm that would be a violation of the Rules of Professional Conduct if
engaged in by a lawyer.
Nonlawyers Within the Firm
[2] Lawyers generally employ assistants in their practice, including secretaries, investigators, law
student interns, and paraprofessionals. Such assistants, whether employees or independent
contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give
such assistants appropriate instruction and supervision concerning the ethical aspects of their
employment, particularly regarding the obligation not to disclose information relating to representation

94. of the client, and should be responsible for their work product. The measures employed in supervising
nonlawyers should take account of the fact that they do not have legal training and are not subject to
professional discipline.
Nonlawyers Outside the Firm
[3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to
the client. Examples include the retention of an investigative or paraprofessional service, hiring a
document management company to create and maintain a database for complex litigation, sending
client documents to a third party for printing or scanning, and using an Internet-based service to store
client information. When using such services outside the firm, a lawyer must make reasonable efforts
to ensure that the services are provided in a manner that is compatible with the lawyer’s professional
obligations. The extent of this obligation will depend upon the circumstances, including the education,
experience and reputation of the nonlawyer; the nature of the services involved; the terms of any
arrangements concerning the protection of client information; and the legal and ethical environments
of the jurisdictions in which the services will be performed, particularly with regard to confidentiality.
See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6
(confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice
of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate
directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's
conduct is compatible with the professional obligations of the lawyer.
[4] Where the client directs the selection of a particular nonlawyer service provider outside the firm,
the lawyer ordinarily should agree with the client concerning the allocation of responsibility for
monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation in a
matter pending before a tribunal, lawyers and parties may have additional obligations that are a
matter of law beyond the scope of these Rules.

95. 6
RULE 1.0:
TERMINOLOGY
(a) “Advertisement” means any public or private communication made by or on
behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary
purpose of which is for the retention of the lawyer or law firm. It does not include
communications to existing clients or other lawyers.
(b) “Belief” or “believes” denotes that the person involved actually believes the
fact in question to be true. A person’s belief may be inferred from circumstances.
(c) “Computer-accessed communication” means any communication made by or
on behalf of a lawyer or law firm that is disseminated through the use of a computer or
related electronic device, including, but not limited to, web sites, weblogs, search engines,
electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms,
list servers, instant messaging, or other internet presences, and any attachments or links
related thereto.
(d) “Confidential information” is defined in Rule 1.6.
(e) “Confirmed in writing” denotes (i) a writing from the person to the lawyer
confirming that the person has given consent, (ii) a writing that the lawyer promptly
transmits to the person confirming the person’s oral consent, or (iii) a statement by the
person made on the record of any proceeding before a tribunal. If it is not feasible to
obtain or transmit the writing at the time the person gives oral consent, then the lawyer
must obtain or transmit it within a reasonable time thereafter.
(f) “Differing interests” include every interest that will adversely affect either
the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent,
diverse, or other interest.
(g) “Domestic relations matter” denotes representation of a client in a claim,
action or proceeding, or preliminary to the filing of a claim, action or proceeding, in either
Supreme Court or Family Court, or in any court of appellate jurisdiction, for divorce,
separation, annulment, custody, visitation, maintenance, child support or alimony, or to
enforce or modify a judgment or order in connection with any such claim, action or
proceeding.
(h) “Firm” or “law firm” includes, but is not limited to, a lawyer or lawyers in a
law partnership, professional corporation, sole proprietorship or other association
authorized to practice law; or lawyers employed in a qualified legal assistance
organization, a government law office, or the legal department of a corporation or other
organization.
(i) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the
substantive or procedural law of the applicable jurisdiction or has a purpose to deceive,
provided that it does not include conduct that, although characterized as fraudulent by

96. 7
statute or administrative rule, lacks an element of scienter, deceit, intent to mislead, or
knowing failure to correct misrepresentations that can be reasonably expected to induce
detrimental reliance by another.
(j) “Informed consent” denotes the agreement by a person to a proposed course
of conduct after the lawyer has communicated information adequate for the person to
make an informed decision, and after the lawyer has adequately explained to the person
the material risks of the proposed course of conduct and reasonably available alternatives.
(k) “Knowingly,” “known,” “know,” or “knows” denotes actual knowledge of
the fact in question. A person’s knowledge may be inferred from circumstances.
(l) “Matter” includes any litigation, judicial or administrative proceeding, case,
claim, application, request for a ruling or other determination, contract, controversy,
investigation, charge, accusation, arrest, negotiation, arbitration, mediation or any other
representation involving a specific party or parties.
(m) “Partner” denotes a member of a partnership, a shareholder in a law firm
organized as a professional legal corporation or a member of an association authorized to
practice law.
(n) “Person” includes an individual, a corporation, an association, a trust, a
partnership, and any other organization or entity.
(o) “Professional legal corporation” means a corporation, or an association
treated as a corporation, authorized by law to practice law for profit.
(p) “Qualified legal assistance organization” means an office or organization of
one of the four types listed in Rule 7.2(b)(1)-(4) that meets all of the requirements thereof.
(q) “Reasonable” or “reasonably,” when used in relation to conduct by a lawyer,
denotes the conduct of a reasonably prudent and competent lawyer. When used in the
context of conflict of interest determinations, “reasonable lawyer” denotes a lawyer acting
from the perspective of a reasonably prudent and competent lawyer who is personally
disinterested in commencing or continuing the representation.
(r) “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.
(s) “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.
(t) “Screened” or “screening” 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

97. 8
lawyer or the firm is obligated to protect under these Rules or other law.
(u) “Sexual relations” denotes sexual intercourse or the touching of an intimate
part of the lawyer or another person for the purpose of sexual arousal, sexual gratification
or sexual abuse.
(v) “State” includes the District of Columbia, Puerto Rico, and other federal
territories and possessions.
(w) “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.
(x) “Writing” or “written” denotes a tangible or electronic record of a
communication or representation, including handwriting, typewriting, printing,
photocopying, photography, audio or video recording and email. 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.
Comment
Confirmed in Writing
[1] Some Rules require that a person’s oral consent be “confirmed in writing.” E.g.,
Rules 1.5(g)(2) (client’s consent to division of fees with lawyer in another firm must be
confirmed in writing), 1.7(b)(4) (client’s informed consent to conflict of interest must be
confirmed in writing) and 1.9(a) (former client’s informed consent to conflict of interest must be
confirmed in writing). The definition of “confirmed in writing” provides three distinct methods
of confirming a person’s consent: (i) a writing from the person to the lawyer, (ii) a writing from
the lawyer to the person, or (iii) consent by the person on the record in any proceeding before a
tribunal. The confirming writing need not recite the information that the lawyer communicated
to the person in order to obtain the person’s consent. For the definition of “informed consent”
See Rule 1.0(j). If it is not feasible for the lawyer to obtain or transmit a written confirmation at
the time the client gives oral consent, then the lawyer must obtain or transmit the confirming
writing within a reasonable time thereafter. If a lawyer has obtained a client’s informed oral
consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing
within a reasonable time thereafter.
Computer-Accessed Communication
[1A] Rule 1.0(c), which defines the phrase “computer-accessed communication,”
embraces electronic and wireless communications of every kind and includes, without limitation,
communication by devices such as cell phones, smartphones, and all other handheld or portable
devices that can send or receive communications by and electronic or wireless means, including
cellular service, the Internet, wireless networks, or any other technology.

98. 9
Firm
[2] Whether two or more lawyers constitute a firm within paragraph (h) will depend
on the specific facts. For example, two practitioners who share office space and occasionally
consult or assist each other ordinarily would not be regarded as constituting a firm. However, if
they present themselves to the public in a way that suggests that they are a firm or conduct
themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of
any formal agreement between associated lawyers are relevant in determining whether they are a
firm, as is the fact that they have mutual access to information concerning the clients they serve.
Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is
involved. For example, a group of lawyers could be regarded as a firm for purposes of
determining whether a conflict of interest exists but not for application of the advertising rules.
[3] 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. 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. Whether lawyers in a government agency or department constitute a firm
may depend upon the issue involved or be governed by other law.
[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 components of it may constitute a firm or firms for purposes of these Rules.
Fraud
[5] When used in these Rules, the terms “fraud” and “fraudulent” refer to conduct
that is characterized as such under the substantive or procedural law of the applicable jurisdiction
or 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, so long as the necessary scienter is present and the conduct in question could be
reasonably expected to induce detrimental reliance.
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to obtain the
informed consent of a client or other person (e.g., a former client or, under certain circumstances,
a prospective client) before accepting or continuing representation or pursuing a course of
conduct. 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

99. 10
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. Other considerations
may apply in representing impaired clients. See Rule 1.14.
[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. E.g., Rules 1.7(b) and 1.9(a). For definitions of
“writing” and “confirmed in writing” see paragraphs (x) and (e), respectively. Other Rules
require that a client’s consent be obtained in a writing signed by the client. E.g., Rules 1.8(a)
and (g). For the meaning of “signed,” see paragraph (x).
Screened or Screening
[8] The definition of “screened” or “screening” applies to situations where screening
of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest
under Rule 1.11, 1.12 or 1.18. See those Rules for the particular requirements of establishing
effective screening.
[9] The purpose of screening is to ensure 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
promptly 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. In any event, procedures
should be adequate to protect confidential information.
[10] In order to be effective, screening measures must be implemented as soon as
practicable after a lawyer or law firm knows or reasonably should know that there is a need for
screening.

100. 11
RULE 1.1:
COMPETENCE
(a) A lawyer should provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
(b) A lawyer shall not handle a legal matter that the lawyer knows or should
know that the lawyer is not competent to handle, without associating with a lawyer who is
competent to handle it.
(c) A lawyer shall not intentionally:
(1) fail to seek the objectives of the client through reasonably available
means permitted by law and these Rules; or
(2) prejudice or damage the client during the course of the representation
except as permitted or required by these Rules.
Comment
Legal Knowledge and Skill
[1] 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 associate 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. One such circumstance would be where the
lawyer, by representations made to the client, has led the client reasonably to expect a special
level of expertise in the matter undertaken by the lawyer.
[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 kinds 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.
[3] [Reserved.]

101. 12
[4] A lawyer may accept representation where the requisite level of competence can
be achieved by adequate preparation before handling the legal matter. This applies as well to a
lawyer who is appointed as counsel for an unrepresented person.
Thoroughness and Preparation
[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 extensive treatment than matters of lesser complexity and
consequence. An agreement between the lawyer and the client may limit the scope of the
representation if the agreement complies with Rule 1.2(c).
Retaining or Contracting with Lawyers Outside the Firm
[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own
firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily
obtain informed consent from the client and should reasonably believe that the other lawyers’
services will contribute to the competent and ethical representation of the client. See also Rules
1.2 (allocation of authority), 1.4 (communication with client), 1.5(g) (fee sharing with lawyers
outside the firm), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The
reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own
firm will depend upon the circumstances, including the needs of the client; the education,
experience and reputation of the outside lawyers; the nature of the services assigned to the
outside lawyers; and the legal protections, professional conduct rules, and ethical environments
of the jurisdictions in which the services will be performed, particularly relating to confidential
information.
[6A] Client consent to contract with a lawyer outside the lawyer’s own firm may not be
necessary for discrete and limited tasks supervised closely by a lawyer in the firm. However, a
lawyer should ordinarily obtain client consent before contracting with an outside lawyer to
perform substantive or strategic legal work on which the lawyer will exercise independent
judgment without close supervision or review by the referring lawyer. For example, on one
hand, a lawyer who hires an outside lawyer on a per diem basis to cover a single court call or a
routing calendar call ordinarily would not need to obtain the client’s prior informed consent. On
the other hand, a lawyer who hires an outside lawyer to argue a summary judgment motion or
negotiate key points in a transaction ordinarily should seek to obtain the client’s prior informed
consent.
[7] When lawyer from more than one law firm are providing legal services to the
client on a particular matter, the lawyers ordinarily should consult with each other about the
scope of their respective roles and the allocation of responsibility among them. See Rule 1.2(a).
When allocating responsibility in a matter pending before a tribunal, lawyers and parties may
have additional obligations (e.g., under local court rules, the CPLR, or the Federal Rules of Civil
Procedure) that are a matter of law beyond the scope of these Rules.