Model Rules of Professional Conduct (MRPC)
Overview
The ABA Model Rules of Professional Conduct were adopted in 1983 and have been amended multiple times since. Nearly all U.S. states have adopted the MRPC (with variations) as their professional conduct rules, replacing the earlier Model Code of Professional Responsibility (Model Code). Each state’s rules are authoritative; the MRPC is a model only.
Client-Lawyer Relationship
Rule 1.1 — Competence
A lawyer shall provide competent representation, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Competence may be achieved through necessary study; a lawyer is not required to decline a representation solely because the lawyer is not initially familiar with the subject matter.
Rule 1.2 — Scope of Representation and Allocation of Authority
- Client controls the objectives of representation; lawyer controls the means (within ethical limits).
- Lawyer must abide by client’s decisions on: whether to settle, what plea to enter in criminal cases, whether to waive jury trial, whether client will testify.
- Rule 1.2(d): Lawyer must not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent, but may discuss legal consequences of any proposed course of conduct.
Rule 1.3 — Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.6 — Confidentiality of Information
A lawyer shall not reveal information relating to the representation of a client (broader than attorney-client privilege — includes all information relating to the representation regardless of source) unless:
- Client gives informed consent.
- Disclosure is impliedly authorized to carry out representation.
- Disclosure is permitted under Rule 1.6(b):
- 1.6(b)(1): To prevent reasonably certain death or substantial bodily harm.
- 1.6(b)(2): To prevent client from committing crime or fraud using lawyer’s services that is reasonably certain to result in substantial financial injury to another.
- 1.6(b)(3): To prevent, mitigate, or rectify substantial financial injury where lawyer’s services were used.
- 1.6(b)(4): To secure legal advice about lawyer’s compliance with these rules.
- 1.6(b)(5): To establish claim or defense on behalf of the lawyer in a controversy with client.
- 1.6(b)(6): To comply with other law or court order.
Rule 1.7 — Conflict of Interest: Current Clients
Concurrent conflict exists if: (a) representation is directly adverse to another client; or (b) there is a significant risk that representation will be materially limited by responsibilities to another client, a former client, a third person, or the lawyer’s own interests. Exception (informed consent): if (1) lawyer reasonably believes adequate representation can be provided to each affected client, (2) the representation is not prohibited by law, (3) clients are not asserting claims against each other in the same litigation, and (4) each affected client gives informed consent in writing.
Rule 1.9 — Duties to Former Clients
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent in writing. A lawyer may use generally known information about a former client.
Rule 1.10 — Imputation of Conflicts of Interest
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited by Rules 1.7 or 1.9 (conflicts generally imputed firm-wide). Screening available for lawyers who have laterally transferred to a new firm if the disqualification arises under Rule 1.9.
Rule 1.13 — Organization as Client
A lawyer employed by an organization represents the entity (not its officers, directors, employees, shareholders, etc.). If a constituent is acting in a way that violates law and is likely to result in substantial harm to the organization, the lawyer must report up through the organization’s constituent hierarchy. If the highest authority fails to act and the violation is of sufficient magnitude, the lawyer may report out (disclose outside the organization) in limited circumstances.
Rule 1.15 — Safekeeping Property
A lawyer shall hold property of clients or third persons in connection with a representation separate from the lawyer’s own property. Client funds must be deposited in a separate trust account (IOLTA). Lawyer shall not commingle client funds with the lawyer’s own funds. Lawyer must promptly deliver funds or property that client is entitled to receive.
Advisor
Rule 2.1 — Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.
Advocate
Rule 3.3 — Candor Toward the Tribunal
A lawyer shall not knowingly:
- Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made.
- Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
- Offer evidence that the lawyer knows to be false. If a witness the lawyer believed to be truthful offers testimony later known to be false, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
- If a client commits perjury, the lawyer must take reasonable remedial measures, including potentially disclosing the perjury to the tribunal (the duty of candor overrides the duty of confidentiality as to the tribunal).
Rule 3.4 — Fairness to Opposing Party and Counsel
A lawyer shall not: unlawfully obstruct another party’s access to evidence; falsify evidence; knowingly disobey obligations under the rules of a tribunal; make frivolous discovery requests; make a false statement of fact to a juror; allude to matters the lawyer does not reasonably believe are in evidence.
Transactions with Persons Other Than Clients
Rule 4.1 — Truthfulness in Statements to Others
In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person. Silence may constitute fraud when there is a duty to disclose. Mere puffery regarding negotiating positions generally not considered a “statement of material fact.”
Rule 4.2 — Communication with Person Represented by Counsel (Anti-Contact Rule)
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the other lawyer consents or law authorizes communication. In organizational settings, this rule covers current employees whose acts or omissions can be imputed to the organization or who have authority to bind the organization.
Law Firms and Associations
Rules 5.1–5.3 — Supervisory Responsibilities
- Rule 5.1: A partner or supervisory lawyer is responsible for another lawyer’s violations if the supervisory lawyer ordered or ratified the conduct, or knew of the conduct at a time when its consequences could have been avoided and failed to take reasonable remedial action.
- Rule 5.2: A subordinate lawyer is bound by the Rules of Professional Conduct notwithstanding a supervisory lawyer’s instruction. A subordinate lawyer does not violate the rules if acting on a reasonable resolution of an arguable question of professional duty by a supervisory lawyer.
- Rule 5.3: Duties regarding nonlawyer assistants — similar supervisory framework applies.
Maintaining the Integrity of the Profession
Rule 8.4 — Misconduct
It is professional misconduct for a lawyer to:
- Violate the Rules of Professional Conduct.
- Commit a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
- Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
- Engage in conduct prejudicial to the administration of justice.
Sarbanes-Oxley § 307
Securities and Exchange Commission rules implementing § 307 of Sarbanes-Oxley require attorneys appearing before the SEC to report up evidence of material violations of securities law or breach of fiduciary duty. If the highest authority fails to act appropriately in response, the attorney may (in some circumstances) report out to the SEC — requiring disclosure over the client’s objection. Interacts with Rule 1.13 framework.