N.D. R. Prof. Cond. 1.8
N.d. R. Prof. Cond. 1.8
Comment
Client Consent and Advice to Seek Independent Counsel
[1] There are several requirements under this Rule that the lawyer obtain client consent or provide advice to the client to seek independent counsel. See Paragraphs (a)(2), (b), (g), and (h)(2). Obtaining client consent or providing advice to seek independent counsel in writing is the preferred practice. Lack of a writing may make it difficult to prove client consent or that advice was given if a dispute arises later.
Business Transactions Between Client and Lawyer
[2] A lawyer's legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client. This Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer's legal practice. See Rule 5.7. It also applies to lawyers purchasing property from estates they represent. It does not apply to ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee. This Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others. For example, in banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities services, the lawyer has no advantage in dealing with the client; therefore, the restrictions in paragraph (a) are unnecessary and impracticable.
[3] Paragraph (a)(1) requires that the transaction itself be fair to the client and that its essential terms be communicated to the client in a manner that can be reasonably understood. Paragraph (a)(2) requires that the client also be advised of the desirability of seeking the advice of independent legal counsel and requires the lawyer to obtain the client's consent. When necessary, the lawyer should discuss both the material risks of the proposed transaction, including any risk presented by the lawyer's involvement, and the existence of reasonably available alternatives and should explain why the advice of independent legal counsel is desirable.
[4] The risk to a client is greatest when the client expects the lawyer to represent the client in the transaction itself or when the lawyer's financial interest otherwise poses a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's financial interest in the transaction. Here the lawyer's role requires that the lawyer must comply, not only with the requirements of paragraph (a), but also with the requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks associated with the lawyer's dual role as both legal adviser and participant in the transaction, such as the risk that the lawyer will structure the transaction or give legal advice in a way that favors the lawyer's interests at the expense of the client. Moreover, the lawyer must obtain the client's consent. In some cases, the lawyer's interest may be such that Rule 1.7 will preclude the lawyer from seeking the client's consent to the transaction.
[5] If the client is independently represented in the transaction, paragraph (a)(2) of this Rule is inapplicable. The fact that the client was independently represented in the transaction is relevant in determining whether the agreement was fair and reasonable to the client as paragraph (a)(1) further requires.
Use of Information Related to Representation
[6] Use of information relating to the representation to the disadvantage of the client violates the lawyer's duty of loyalty. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another person make such a purchase. This Rule allows uses that do not disadvantage the client. For example, a lawyer who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients. Paragraph (b) prohibits disadvantageous use of client information unless the client gives consent, after advice to seek independent counsel. See Rules 1.6, 1.9(c), 8.1, and 8.3.
Gifts to Lawyers
[7] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client as set forth in paragraph (c).
[8] If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance that legal instrument must be prepared by a different lawyer under a separate representation. The sole exception to this Rule is where the client is a relative of the donee.
[9] This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as executor of the client's estate or to another potentially lucrative fiduciary position. Nevertheless, such appointments will be subject to the general conflict of interest provision in Rule 1.7 when there is a significant risk that the lawyer's interest in obtaining the appointment will materially limit the lawyer's independent professional judgment in advising the client concerning the choice of an executor or other fiduciary. In obtaining the client's consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer's financial interest in the appointment, as well as the availability of alternative candidates for the position.
Literary Rights
[10] An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rules 1.5 and 1.7.
Financial Assistance to Client
[11] Rule 1.8(e) recognizes the impact of finances on a client's access to the judicial system and provides limited avenues to improve the client's financial ability to be represented by counsel through negotiation or litigation or both without undue financial pressure to settle prematurely. This provision is not to be interpreted as requiring lawyers to provide financial assistance to clients.
Person Paying for Lawyer's Service
[12] Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation sued along with one or more of its employees). Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment, and there is consent from the client. See also Rule 5.4(c) (prohibiting interference with a lawyer's professional judgment by one who recommends, employs or pays the lawyer to render legal services for another).
[13] Sometimes, it will be sufficient for the lawyer to obtain the client's consent regarding the fact of the payment and the identity of the third-party payer. If, however, the fee arrangement creates a conflict of interest for the lawyer, the lawyer must comply with Rule. 1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality. Under Rule 1.7, a conflict of interest exists if there is significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in the fee arrangement or by the lawyer's responsibilities to the third-party payer (for example, when the third-party payer is a co-client). The lawyer may accept or continue the representation with the consent of each affected client only if the conflict is one described in Rule 1.7(c).
Aggregate Settlements
[14] Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation as part of the process of obtaining the clients' consent. In addition, Rule 1.2(a) protects each client's right to have the final say in deciding whether to accept or reject an offer of settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each client about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted. Lawyers representing a class of plaintiffs or defendants, or those proceeding derivatively, may not have a full client-lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to ensure adequate protection of the entire class.
Limiting Liability and Settling Malpractice Claims
[15] An agreement prospectively limiting a lawyer's liability for malpractice is prohibited unless the client is independently represented in making the agreement because it is likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement. Paragraph (h) does not, however, prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement. Nor does this paragraph limit the ability of lawyers to practice in the form of a limited liability entity, where permitted by law, provided that each lawyer remains personally liable to the client for his or her own conduct and that the firm complies with any conditions required by law, such as provisions requiring client notification or maintenance of adequate liability insurance. Nor does it prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.
[16] Agreements settling a claim or a potential claim for malpractice are not prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take unfair advantage of an unrepresented client or former client, the lawyer must first advise such a person of the appropriateness of independent representation in connection with such a settlement. In addition, the lawyer must give the client or former client a reasonable opportunity to find and consult independent counsel.
Acquiring Proprietary Interest in Litigation
[17] Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. Like paragraph (e), the general rule has its basis in common law champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires. The Rule is subject to specific exceptions developed in decisional law and continued in these Rules. The exception for certain advances of the costs of litigation is set forth in paragraph (e). In addition, paragraph (i) sets forth exceptions for liens authorized by law to secure the lawyer's fees or expenses and contracts for reasonable contingent fees. When a lawyer acquires by contract a security interest in property other than that recovered through the lawyer's efforts in the litigation, such an acquisition is a business or financial transaction with a client and is governed by the requirements of paragraph (a). Contracts for contingent fees in civil cases are governed by Rule 1.5.
Lawyer-Client Sexual Relationships
[18] The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer's emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Because of the significant danger of harm to client interests and because the client's own emotional involvement renders it unlikely that the client could give adequate consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.
[19] Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer's ability to represent the client will be materially limited by the relationship. See Rule 1.7.
[20] When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization's legal matters.
Law Practice by Part-Time Prosecutors and Part-Time Judges
[21] Part-time prosecutors or part-time judges permitted by law to practice in addition to the part-time service must not engage in matters that compromise their public functions. This rule identifies the circumstances in which the public function would be compromised. No compromise of the public function exists when a part-time municipal prosecutor or judge defends persons charged with crime to be tried in another court, or when a part-time state's attorney defends a person charged with a crime to be tried in another county. Persons associated in the practice of law with a part-time prosecutor or judge may not, of course, take on a representation denied to the part-time official by this Rule. See Rule 1.10. Other considerations may prohibit a part-time judge or prosecutor, or another lawyer associated with the part-time official in practice, from accepting or combining representations not specifically prohibited by this Rule. For instance, even though a matter will be defended in a court other than the one which the part-time official serves, that matter may not be undertaken if it involves parties or issues with which the part-time official had any involvement as a judge or prosecutor.
Lawyer as Fiduciary - Prohibition on Serving as Counsel
[22] Paragraph (l) addresses situations in which a lawyer may be asked to serve as both a fiduciary for an estate, trust, or conservatorship and as legal counsel for the requesting party. Situations in which a lawyer serves in both capacities represent a conflict of interest and present, whether by design or default, opportunities for overreaching, misappropriation, or other exploitation of the dual capacity relationship. The relationship of trust and confidence between lawyer and client and with respect to the lawyer as fiduciary generally requires that a lawyer not serve in both capacities. The prohibition in paragraph (l) would not apply to those situations in which there is a familial relationship between the lawyer and the decedent, trustor, beneficiary, or protected person or in United States Bankruptcy Court proceedings.
.Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 09/13/84, 10/19/84, 12/14/84, 02/08/85, 03/11/85, 04/26/85, 08/23/85, 09/20/85, 01/10/86, 01/31/86 and 03/15/86; Minutes of the Joint Committee on Attorney Standards on 02/28/03, 09/25/03, 11/14/03, 04/16/04, 08/06/04, 11/19/04, 06/14/05, 09/09/05, 06/10/08, 09/19/08, 11/07/08, 12/01/08. .