Legal Services

Rules of Professional Conduct for Lawyers

By Order of the Secretary of the Army:

RANDY A. GEORGE
General, United States Army
Chief of Staff

Official:

MARK F. AVERILL
Administrative Assistant to the
Secretary of the Army

History. This regulation is certified current on 26 March 2025. Aside from the administrative changes listed in the summary of change, no other changes were made to certify the currency of this regulation.

Summary. This regulation provides comprehensive rules governing the ethical conduct of Army lawyers, military and civilian, and of non-Department of Defense civilian lawyers appearing before Army tribunals and other proceedings governed by the Uniform Code of Military Justice or the Manual for Courts-Martial or under the supervision of one of the Senior Counsels (as defined in appendix B, Rule 1.0(s)). It establishes the Department of the Army Professional Conduct Council to provide authoritative interpretations of these rules.

Applicability. This regulation applies to all Judge Advocates of the Regular Army, the Army National Guard/Army National Guard of the United States, and the U.S. Army Reserve; all other military personnel who are lawyers and are called upon to deliver legal services within the Department of the Army as a part of their duties; all civilian lawyers employed by the Department of the Army who provide legal services; all local national lawyers employed overseas by the Department of the Army, to the extent these Rules are not inconsistent with their domestic law and professional standards; and to all non-Department of Defense civilian lawyers who practice in proceedings governed by the Uniform Code of Military Justice or the Manual for Courts-Martial or under the supervision of one of the Senior Counsels (as defined in appendix B, Rule 1.0(s)). It also applies to all other Army nonlawyer personnel, military and civilian, who perform duty in an Army, or any other, legal office. Penalties for violations of imperative rules by Army lawyers include all administrative sanctions prescribed by law and regulation. Violations by non-government lawyers may result in imposition of sanctions pursuant to Rule for Courts-Martial 109, Manual for Courts-Martial. A violation by a military lawyer would not, in and of itself, be a violation of Article 92(1), Uniform Code of Military Justice, but the conduct itself may violate a punitive article of the Code, including Article 48. Nothing in this regulation precludes referral of violations to appropriate licensing authorities.

Proponent and exception authority. The proponent agency of this regulation is the Office of The Judge Advocate General. Only the Secretary of the Army or the General Counsel, as his designee, may grant an exception to the provisions of this regulation that is consistent with controlling law and regulations. The granting of an exception is in the sole discretion of the Secretary or his designee, and the granting of an exception in one case is not precedent for a later request. A request for an exception will be submitted through the requesting lawyer's legal supervisory chain, except that a request by a non-Department of Defense civilian lawyer subject to Rule for Courts-Martial 109, Manual for Courts-Martial, will be submitted through the Chief, U.S. Army Trial Defense Service, and a request by a non-Department of Defense civilian lawyer who practices in non-military justice proceedings that are under the supervision of one of the Senior Counsels will be submitted to the appropriate Senior Counsel's office.

Army internal control process. This regulation contains internal controls and provides an Internal Control Evaluation for use in evaluating key internal controls (see app C).

Supplementation. Supplementation of this regulation and establishment of command and local forms are prohibited without prior approval from the General Counsel of the Army. Proposed supplements will be submitted to The Judge Advocate General (DAJA-PR), 2200 Army Pentagon, Washington, DC 20310-2200.

Suggested improvements. The proponent agency of this regulation is the Office of The Judge Advocate General (DAJA-PR). Users are invited to send comments and suggested improvements on DA FormDA FormDepartment of the Army form 2028 (Recommended Changes to Publications and Blank Forms) directly to The Judge Advocate General (DAJA-PR), 2200 Army Pentagon, Washington, DC 20310-2200, with a copy to the Department of the Army General Counsel, 0104 Army Pentagon, Washington, DC 20310-0104.

Distribution. This regulation is available in electronic media only and is intended for the Regular Army, the Army National Guard/Army National Guard of the United States, and the U.S. Army Reserve.

*This regulation supersedes AR 27-26, dated 28 June 2018.

CONTENTS 1.0 Terminology [Modified and Augmented] CLIENT-LAWYER RELATIONSHIP 1.1 Competence 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer [Modified] 1.3 Diligence 1.4 Communication 1.5 Fees [Modified and Augmented] 1.6 Confidentiality of Information [Modified and Augmented] 1.7 Conflict of Interest: Current Clients 1.8 Conflict of Interest: Current Clients: Specific Rules [Modified and Augmented] 1.9 Duties to Former Clients 1.10 Imputation of Conflicts of Interest: General Rule [Modified and Substituted] 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees [Modified] 1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral [Modified] 1.13 Department of the Army as Client [Modified and Augmented] 1.14 Client with Diminished Capacity 1.15 Safekeeping Property [Modified and Substituted] 1.16 Declining or Terminating Representation [Modified] 1.17 Sale of Law Practice [Omitted] 1.18 Duties to Prospective Client [Modified] COUNSELOR 2.1 Advisor 2.2 Intermediary [Deleted] 2.3 Evaluation for Use by Third Persons [Modified] 2.4 Lawyer Serving as Third-Party Neutral ADVOCATE 3.1 Meritorious Claims and Contentions [Modified] 3.2 Expediting Litigation [Modified] 3.3 Candor Toward the Tribunal [Modified and Augmented] 3.4 Fairness to Opposing Party and Counsel 3.5 Impartiality and Decorum of the Tribunal [Modified] 3.6 Tribunal Publicity [Modified and Augmented] 3.7 Lawyer as Witness 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel [Modified] 3.9 Advocate in Nonadjudicative Proceedings TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS 4.1 Truthfulness in Statements to Others 4.2 Communication with Person Represented by Counsel 4.3 Dealing with Unrepresented Person 4.4 Respect for Rights of Third Persons LEGAL OFFICES 5.1 Responsibilities of Senior Counsel and Supervisor Lawyers [Modified and Augmented] 5.2 Responsibilities of a Subordinate Lawyer 5.3 Responsibilities Regarding Nonlawyer Assistants [Modified] 5.4 Professional Independence of a Lawyer [Modified and Substituted] 5.5 Unauthorized Practice of Law [Modified and Augmented] 5.6 Restrictions on Right to Practice [Omitted] 5.7 Responsibilities Regarding Non-Law and Law-Related Duties [Substituted] PUBLIC SERVICE 6.1 Voluntary Pro Bono Publico Service [Omitted] 6.2 Accepting Appointments [Omitted] 6.3 Membership in Legal Services Organization [Omitted] 6.4 Law Reform Activities Affecting Client Interests [Omitted] 6.5 Nonprofit and Court-Annexed Limited Legal Services Programs [Omitted] INFORMATION ABOUT LEGAL SERVICES 7.1 Communications Concerning a Lawyer's Services [Modified and Augmented] 7.2 Advertising [Omitted] 7.3 Solicitation of Clients [Omitted] 7.4 Communication of Fields of Practice and Specialization [Augmented and Substituted] 7.5 Army Letterhead [Substituted] 7.6 Political Contributions to Obtain Government Legal Engagements or Appointments by Judges [Omitted] MAINTAINING THE INTEGRITY OF THE PROFESSION 8.1 Bar Admission and Disciplinary Matters [Modified] 8.2 Judicial and Legal Officials [Modified] 8.3 Reporting Professional Misconduct [Modified and Augmented] 8.4 Misconduct 8.5 Jurisdiction [Substituted] INTERPRETATION 9.1 Interpretation [not in ABA] 9.2 [Not used] ENFORCEMENT 10.1 Enforcement [not in ABA] 10.2 [Not used] Rule 1.0 Terminology of the Army to provide legal services. This includes lawyers detailed or assigned as defense counsel for individual clients and lawyers detailed or assigned to provide legal assistance to individual clients. In addition, it includes any Army Reserve Judge Advocate or Judge Advocate in the Army National Guard/Army National Guard of the United States, regardless of duty status. It also includes any lawyer under contract to the Department of the Army to provide legal advice or legal services within the scope of that contract. The term “lawyer” is synonymous with “attorney at law.” belief may be inferred from circumstances. 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 (h) 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. the client to appreciate the significance of the matter in question. ship, 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. jurisdiction and has a purpose to deceive. communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. USCUSCUnited States Code 7072 and AR 27–1. be inferred from circumstances. instructions, and orders. ber) of a board or court of inquiry convened to determine facts and make recommendations. or a member of an association authorized to practice law. investigations and inquiries) convened in accordance with applicable law to inquire into allegations of violations of these Rules of Professional Conduct, and those proceedings convened pursuant to the disciplinary body. prudent and competent lawyer. the matter in question and that the circumstances are such that the belief is reasonable. competence would ascertain the matter in question. 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. U.S. Army, the Command Counsel of the U.S. Army Materiel Command, and the Chief Counsel of the U.S. Army Corps of Engineers. sponsibility for the direction, coordination, evaluation, or assignment of responsibilities and work of subordinate law-yers and nonlawyer assistants (for example, paralegals). istrative separation boards or hearings, boards of inquiry, disability evaluation proceedings, 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. handwriting, typewriting, printing, photostating, photography, audio or video recording, and electronic communications. A “signed” writing includes an electronic sound, symbol, or process attached to or logically asso-ciated with a writing and executed or adopted by a person with the intent to sign the writing. COMMENT: Confirmed in Writing 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 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. 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 depart-ment 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 asso-ciation and its local affiliates. 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 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 person (for example, a former client or, under certain circumstances, a prospective client) before accepting or contin-uing representation or pursuing a course of conduct. See, for example, Rules 1.2(c), 1.6(a) and 1.7(b). The commu-nication 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 com-munication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation rea-sonably 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 rep-resented 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. 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. See Rules 1.7(b) and 1.9(a). For a definition of “writing” and “confirmed in writing,” see paragraphs (x) and (c). Other Rules require that a client's consent be obtained in a writing signed by the client. See, for example, Rules 1.8(a) and (g). For a definition of “signed,” see paragraph (x). Screened imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18. 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 under-taking 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 instruc-tions 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. knows or reasonably should know that there is a need for screening. 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: Legal Knowledge and Skill 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 consult with, a lawyer of established competence in the field in question. In most instances, the required proficiency is that generally afforded to clients by other lawyers in similar matters. Expertise in a particular field of law may be required in some circumstances. lawyers prior to case or issue assignments; however, once assigned, Army lawyers may consult with supervisory lawyers concerning competence in a particular case or issue. See Rules 5.1 and 5.2. 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 or consultation with a lawyer of established competence in the field in question. authority to act in the client's behalf. In such a situation, the lawyer should refer the matter to another lawyer who has the requisite competence or authority to meet the client's needs. For civilian lawyers practicing before tribunals con-ducted pursuant to the Manual for Courts-Martial or the Uniform Code of Military Justice, competent representation may also be provided through the association of a lawyer of established competence in the field in question. where referral to or consultation with another lawyer would be impractical. However, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action can jeopardize the client's interest. Thoroughness and Preparation 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 litiga-tion and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and con-sequence. An agreement between the lawyer and an individual client regarding the scope of the representation (for example, in legal assistance) may limit the matters for which the lawyer is responsible. See Rule 1.2(c). Maintaining Competence 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. mation as defined in Military Rule of Evidence (MRE) 505(b)(1), competence includes having the appropriate security clearance to review the evidence. In such cases, a lawyer shall apply for the appropriate security clearance immedi-ately upon taking on such representation. CROSS REFERENCES: Rule 1.0 (o) “Reasonably” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.3 Diligence Rule 1.13 Department of the Army as Client Rule 1.16 Declining or Terminating Representation Rule 2.1 Advisor Rule 3.1 Meritorious Claims and Contentions Rule 3.4 Fairness to Opposing Party and Counsel Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer the Army as client or individual clients) is permissible only when the lawyer is authorized to do so by competent authority. Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representa-tion. A lawyer shall abide by the client's well-informed and lawful decisions concerning case objectives, choice of counsel, forum, pleas, whether to testify, and settlements. of the client's political, economic, social, or moral views or activities. required by law, regulation, or policy and communicated to the client. Generally, the subject-matter scope of an Army lawyer’s representation will be consistent with the terms of the assignment to perform specific representational or advisory duties. A lawyer shall inform clients at the earliest opportunity of any limitations on representation and professional responsibilities of the lawyer towards the client. criminal or fraudulent, but a lawyer may discuss the legal and moral consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. COMMENT: Establishment of Representation authorized by competent authority. For example, the Secretary of the Army or The Judge Advocate General may prescribe who is eligible for legal assistance, limit the scope of consultation when an individual is deciding whether to accept nonjudicial punishment, or limit the scope of representation at a hearing to review pretrial confinement. Army lawyers must be careful not to enter, errantly or purposefully, into an unauthorized client-lawyer relationship. This is required so that lawyer resources can be adequately managed as dictated by the needs of the Department of the Army, and to serve individual clients better. Any communications that would require a person to reveal confidential information in order for an Army lawyer properly to represent or advise that person, consistent with these Rules, would involve the formation of a client-lawyer relationship and, absent proper authorization, must be avoided. Allocation of Authority between Client and Lawyer has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives, and the lawyer may take such action as is impliedly authorized to carry out the representation. A lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical, legal, and tactical matters, such as which witnesses to call, whether and how to conduct cross-examination, which court members to challenge, and what motions to make. Except where precluded by Rule 4.4, the lawyer should defer to the client regarding such questions as any expense to be incurred in the repre-sentation, and concern for third persons who might be adversely affected by decisions resulting from the representa-tion. without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, evoke such authority at any time. decisions is to be guided by reference to Rule 1.14. either concluded or resolved. Doubt about whether a client-lawyer relationship continues to exist should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. Agreements Limiting Scope of Representation the law, regulations, or policy terms governing the conditions under which the lawyer's services are made available to the client. When the objectives or scope of services provided by a lawyer are limited, the lawyer should ensure at the earliest opportunity that the client is aware of such limitations. Formation of lawyer–client relationships and repre-sentation of clients by Army lawyers is permissible only when authorized by competent authority. Thus, notwith-standing Rule 1.2(a) and (c), Army lawyers are subject to directions from officials at higher levels within the Depart-ment of the Army. When acting pursuant to properly delegated authority, these officials may authorize or require some variance in the scope of representation otherwise agreed upon between the Army lawyer and a lower level official. For example, the Secretary of the Army or The Judge Advocate General may: Prescribe who is entitled to legal assistance; limit the scope of consultation when an individual is deciding whether to accept nonjudicial punish-ment; or limit the scope of representation at a hearing to review pretrial confinement. When the objectives or scope of services provided by a lawyer are limited by law, the lawyer should ensure at the earliest opportunity that the client is aware of such limitations. lawyer's services are made available to a client, the lawyer should consult with the lawyer's supervisory lawyer con-cerning the matter. See Rule 5.2. other law and regulations. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate the lawyer's services or the right to conclude a matter that the lawyer might wish to continue. Criminal, Fraudulent, and Prohibited Transactions Furthermore, an Army lawyer, and any lawyer representing an individual client in any matter or proceeding governed by these Rules, is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly counsel or assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of ques-tionable conduct and recommending the means by which a crime or fraud might be committed with impunity. delicate. The lawyer is not permitted to reveal the client's wrongdoing, except where required or permitted by Rule 1.6 or Rule 3.3. However, the lawyer is required to avoid furthering the wrongdoing, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper, but then discovers is criminal or fraudulent. Seeking to withdraw from the representation, therefore, may be appropriate. not participate in a sham transaction; for example, a transaction to effectuate criminal or fraudulent escape of tax liability. The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may include a course of action contrary to the terms of the statute or regulation or of the interpretation placed upon it by governmental authorities. CROSS REFERENCES: Rule 1.0 (f) “Fraudulent” Rule 1.0 (h) “Informed Consent” Rule 1.0 (j) “Knows” Rule 1.0 (o) “Reasonable” Rule 1.1 Competence Rule 1.6 Confidentiality of Information Rule 1.13 Department of the Army as Client Rule 1.14 Client with Diminished Capacity Rule 2.1 Advisor Rule 2.3 Evaluation for Use by Third Persons Rule 3.3 Candor Toward the Tribunal Rule 4.4 Respect for Rights of Third Persons Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. COMMENT: to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. Although a lawyer may be bound by court precedent to pursue certain matters on behalf of a client, see, for example, United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), a lawyer has professional discretion in determining the means by which a matter should be pursued. See Rules 1.2 and 1.4(b). A lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. petently. See Rule 5.1. be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client. policy, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's representation is limited to a specific matter, the relationship terminates when the matter has been either concluded or resolved. Doubt about whether a client–lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. A lawyer who has handled a judicial or administrative proceeding that produced a result adverse to the client should advise the client of the possibility of appeal before relinquishing responsibility for the matter. CROSS REFERENCES: Rule 1.0 (o) “Reasonable” Rule 1.1 Competence Rule 1.4 Communication Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.16 Declining or Terminating Representation Rule 3.1 Meritorious Claims and Contentions Rule 3.2 Expediting Litigation Rule 3.4 Fairness to Opposing Party and Counsel Rule 4.1 Truthfulness of Statements to Others Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 1.4 Communication as defined in rule 1.0(h), is required by these Rules; expects assistance not permitted by the Rules of Professional Conduct or other law. regarding the representation. COMMENT: in the representation. Communicating with Client requires that the lawyer promptly consult with and secure the client’s consent prior to taking action unless prior dis-cussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered pretrial agreement in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the pro-posal will be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer. See Rule 1.2(a). the client’s objectives. In some situations - depending on both the importance of the action under consideration and the feasibility of consulting with the client - this duty will require consultation prior to taking action. In other circum-stances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the re presentation. information concerning the representation. When a client makes a reasonable request for information, however, par-agraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications. Explaining Matters the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. For example, a lawyer negotiating a pretrial agreement on behalf of a client should provide the client with facts rele-vant to the matter, inform the client of communications from the government, and take other reasonable steps that permit the client to make a decision regarding the feasibility of further negotiation with the government. A lawyer representing the government who receives from the accused an offer for a pretrial agreement must communicate that offer, and should provide advice as to that offer, to the convening authority. there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation, a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representa-tion. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(h). adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is the Department of the Army, it is often impossible or inappropriate to inform every one of its authorized officials about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the Department of the Army. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Practical exigencies may limit the opportunity for consultation and also require a lawyer to act for a client without prior consultation. Withholding Information information may not be disclosed without proper authority. In other circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communi-cation. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person, or where disclosure is required by Rule 3.8. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders. CROSS REFERENCES: Rule 1.0 (h) “Informed Consent” Rule 1.0 (j) “Knows” Rule 1.0 (o) “Reasonably” Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.3 Diligence Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.13 Department of the Army as Client Rule 2.1 Advisor Rule 3.2 Expediting Litigation Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 4.1 Truthfulness of Statements to Others Rule 1.5 Fees pensation, for services provided in the course of the Army lawyer’s official duties or employment. (ii) any salary or other payments as compensation for legal services rendered by that Army lawyer in a private capac-ity, to a client who is eligible for assistance under the Department of the Army Legal Assistance Program, unless so authorized by The Judge Advocate General. This Rule does not apply to Army Reserve or Army National Guard lawyers not serving on extended active duty. (iii) any fee, compensation, or other payments or benefits, actual or constructive, directly or indirectly, for making a referral of a client. ing a matter as part of the lawyer’s official Army duties shall not accept any salary, fee, compensation, or other pay-ments or benefits, directly or indirectly, as compensation for services rendered to that client in a private capacity concerning the same general matter for which the client was seen in an official capacity. However, an Army Reserve or Army National Guard lawyer, whether or not serving on extended active duty, who has initially represented or interviewed a client or prospective client concerning a matter as part of the lawyer’s official Army duties may accept a salary or other payments as compensation for services rendered to that client in a private capacity concerning the same general matter for which the client was seen in an official capacity if specifically authorized to do so by The Judge Advocate General. cate General is charged with supervising the provision of legal services shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: the legal service properly; (ii) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (iii) the fee customarily charged in the locality for similar legal services; (iv) the amount involved and the results obtained; (vi) the nature and length of the professional relationship with the client; (vii) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (viii) whether the fee is fixed or contingent. shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or for the representation; in writing; and COMMENT: Army. Army Lawyers to or supplementation of salary, as compensation for services as an officer or employee of the Department of the Army from any source other than the government of the United States. They may neither request nor accept any gratuity, salary, or other compensation from any source as payment for performance of official Army duties or incident thereto. For example, a legal assistance lawyer is prohibited from accepting a gift or loan from a client tendered as a result of assistance rendered. This prohibition extends to the Army lawyer using his or her position to seek or attain a benefit, even if initiated by the client. For example, a legal assistance lawyer may not draft himself or herself into a will as a beneficiary or as a person, such as an executor, to be later compensated. client in the course of their official duties. client originally seen in a legal assistance capacity to himself or herself or to the firm in which the lawyer works in a private capacity or has any interest, unless no fee or other compensation is charged. An Army lawyer (including a Reserve or National Guard officer) is prohibited from using an official position to solicit or obtain clients for a private practice. See Rule 1.8. However, this Rule recognizes that there may be instances in which a Reserve or National Guard lawyer sees an eligible client on an issue within the legal assistance program, but full representation would require services beyond the authorized scope of an Army lawyer’s legal assistance role, for example, in-court repre-sentation. If the client makes a knowing and intelligent request for representation by that Reserve or National Guard lawyer in his or her private capacity, the lawyer may undertake representation of that client for a fee following specific approval of the representation by The Judge Advocate General. capacity, to members of the Army and their dependent Family Members unless so authorized by The Judge Advocate General. their Regular Army counterparts in this regard. Reserve or National Guard Judge Advocates not serving on extended active duty are necessarily treated differently but are prohibited from accepting fees from members and dependent Family Members for matters in which the member or dependent Family Member was seen in the Reserve or National Guard Judge Advocate’s official capacity. This Rule does not preclude the Reserve or National Guard Judge Advocate from representing military members or dependent Family Members in a private capacity concerning new matters, even though the relationship might have been first established in a military legal assistance capacity. For example, a Re-serve Judge Advocate who sees a legal assistance client during a drill period regarding a divorce matter is prohibited from then representing that client in the divorce in a private capacity for a fee. If there is any question of whether the case concerns the same matter, the presumption should be that it is the same matter. A will and divorce may be two separate matters; however, they also may be part of the same general subject matter if the will is being drafted in conjunction with the divorce. For situations described in paragraph (a), The Judge Advocate General may grant ex-ceptions. vocate General is charged with supervising the provision of legal services. These matters include, but are not limited to, courts-martial, administrative separation boards or hearings, boards of inquiry, and disability evaluation proceed-ings. This Rule as it applies to private civilian lawyers is not so much to allow The Judge Advocate General to regulate fee arrangements between private civilian lawyers and their clients as it is to provide guidance to Army lawyers prac-ticing with such lawyers and to supervisory Army lawyers who may be asked to inquire into alleged fee irregularities. Absent this Rule, such Army lawyers have no readily available standard with which to compare allegedly questionable conduct of a private civilian lawyer. Rule 1.5 is the same as the ABA Model Rule of Professional Conduct 1.5 and thus reflects generally accepted professional standards. Reasonableness of Fee and Expenses Nor will each factor be relevant in each instance. This Rule also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer. Basis or Rate of Fee the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relation-ship, however, an understanding as to the fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer’s customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate, or total amount of the fee, and whether and to what extent the client will be responsible for any costs, expenses, or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding. determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of con-tingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law may also apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters. Terms of Payment A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client. or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. Prohibited Contingent Fees contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony, or other financial orders because such contracts do not implicate the same policy concerns. Division of Fee firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. This Rule permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement, including the share that each lawyer is to receive, and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (h) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1. were previously associated in a law firm. Disputes over Fees established by the bar, the lawyer must comply with the procedure when it is mandatory, and, even, when it is volun-tary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class, or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure. CROSS REFERENCES: Rule 1.0 (c) “Confirmed in Writing” Rule 1.0 (e) “Firm” Rule 1.0 (x) “Writing” and “Written” and “Signed” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.7 Conflict of Interest: Current Clients Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 1.16 Declining or Terminating Representation Rule 1.6 Confidentiality of Information informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is required by paragraph (b)(1) or permitted by paragraph (b)(2). necessary: (ii) [Augmented] to prevent the client from committing a criminal act that the lawyer believes is likely to result in the significant impairment of national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system. (ii) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (iii) to comply with other law or a court order; (iv) [Modified] to detect and resolve conflicts of interest arising from the Army lawyer’s change of duty position, assignment, or employment within the Army, or arising from the non-government lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; or (vi) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services. access to, information relating to the representation of a client. COMMENT: lawyer’s representation of the client. See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client, and Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients. Generally, the Department of the Army is the Army lawyer's client. Communications by an Army lawyer both inside and outside of the Army may or may not violate this Rule. An Army lawyer's duty under this Rule is affected by statutes, regulations, and other lawful directives. There are circumstances in which an Army lawyer may be assigned to provide an individual with counsel or representation in which it is clear that an obligation of confidentiality adheres to that individual and not the Department of the Army. Examples include Army lawyers who provide defense counsel or legal assistance services to individuals. It would also include Army lawyers who have been approved by their Senior Counsel or the Senior Counsel's designee to provide legal service to an individual with regard to a specific legal matter. the lawyer must not reveal information relating to the representation. See Rule 1.0(h) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if neces-sary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld. the work product doctrine, and the rule of confidentiality established in professional ethics. The attorney-client priv-ilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. The client holds the attorney-client privilege and the right to client-lawyer confidentiality. A lawyer may not disclose such information except as authorized or required by these Rules of Professional Conduct or other lawful order, regulation, or law. absence of implied or express consent or an applicable exception specified in the Rule. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. representing the Department of the Army who may disagree with the policy goals that their representation is designed to advance. See Rule 1.13. Authorized Disclosure authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. To the extent a lawyer reasonably believes necessary to facilitate the representation of a client, a lawyer may disclose information relating to a client to other lawyers in the same office, to those lawyers who are assigned to exercise supervision and/or support functions (either generally or specific to a particular client), and to paralegals and other support staff personnel subject to the direction and control of the lawyer, unless the client has instructed that particular information be confined to specified lawyers, or unless otherwise prohibited by these Rules of Professional Conduct or other lawful order, regulation, or statute. Where the client is the Department of the Army, the Army lawyer may be in doubt whether contemplated conduct will actually be carried out. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the Department of the Army as indicated in Rule 1.13. client privilege and client-lawyer confidentiality with its lawyers. See Rule 1.13 (Department of the Army as Client). The attorney-client privilege and client-lawyer confidentiality encourage full and free communication between a law-yer and the Army as the client, acting through its authorized officials, by requiring the lawyer to keep in confidence information relating to the representation. In order to realize the Army’s legal rights and achieve compliance with laws and regulations, authorized officials must have the support of their lawyers, and must be free to discuss with and confide in their Army lawyers any aspect of official business fully, frankly, and with an assurance of confidentiality, except as to those higher authorities who have a legitimate right to disclosure as identified in Comment (9). relating to the representation of the Army simply to do their jobs. These disclosures are permissible when the client has expressly or impliedly authorized them. Like Rule 1.2(a), which allows a lawyer to “take such action on behalf of the client as is impliedly authorized to carry out the representation,” paragraph (a) of this Rule specifically permits disclosure of client information when “impliedly authorized... to carry out the representation.” Implied authority depends upon the particular circumstances of the representation and applies only when the lawyer reasonably perceives that disclosure is necessary to advance the representation of the Army. Where the client is the Department of the Army, not all Army officials have a right to access attorney-client privileged and/or client-lawyer confidential infor-mation merely because of their status as Army officials. Before an Army lawyer can disclose client information under implied authority, the lawyer must reasonably perceive that the Army official who seeks the information has an official need to know about the information sought. As general guidance, if an Army official’s duties or responsibilities do not extend to the particular matter in which the lawyer is representing the Army, the Army official has no official need to know the client information. Thus, it would not be reasonable for the lawyer to believe there is implied authority to disclose the information to that particular Army official. Stated another way, this official need-to-know limitation permits the lawyer, in order to advance the lawyer’s representation of the Army, to disclose client-privileged and client-confidential information only to Army officials who reasonably need to know the information in order to act for the organization in the matter. This official need to know concept properly extends to Army officials who are responsible for accepting or rejecting a lawyer’s advice on behalf of the organization or for acting on the legal advice. This concept also extends to Army officials whose general management and supervisory responsibilities include wide areas of organizational activities, and to lower-echelon Army officials whose area of activity is relevant to the legal advice or service rendered. Other Army officials to whom this concept extends specifically include an appropriate Army lawyer in the lawyer’s legal technical or legal supervisory chain, up to and including the Office of the General Counsel of the Army; the Office of The Judge Advocate General of the Army; the Office of the Command Counsel, Army Materiel Command; and the Office of the Chief Counsel, Army Corps of Engineers; an appropriate official in the organizational or command chain above the authorized official involved in the particular matter to which the client-privileged and client-confidential information pertains; and any Army official who has been directed by the Secretary of the Army or his designee, whether specifically or by statute or regulation, to investigate, inquire into, audit, or otherwise review the particular matter to which the client-privileged and client-confidential information pertains. In addition to disclosures under implied authority, an Army lawyer can also disclose client information when expressly authorized to do so by an appropriate authorized official of the Army. Express authority to disclose client information is not the same thing as waiver of privilege; see Comments (14) through (15) below. attorney-client privileged and/or client-lawyer confidential information will be disseminated only to and among Army officials who have an official need to know to prevent unlawful command influence or a violation of 10 USCUSCUnited States Code 3037(e), which states no officer or employee of the Department of Defense may interfere with - (1) the ability of the Judge Advocate General to give independent legal advice to the Secretary of the Army or the Chief of Staff of the Army; or independent legal advice to commanders. Therefore, as a general rule, legal advice to commanders on military justice matters should ordinarily not be released by a lawyer under implied authority to any Army official other than those officials involved as participants in the particular military justice matter. For example, if a Soldier who received an Article 15 under the UCMJUCMJUniformed Code of Military Justice files an Inspector General complaint against the commander who imposed the Article 15, and the Inspector General requests access to the legal advice provided to the commander, the request should ordinarily be denied. not perceive that a requested disclosure of client information is reasonably necessary to facilitate the representation of his or her client must decline to disclose the information under implied authority. For example, a Trial Counsel who provided written legal advice to a court-martial convening authority concerning the merits of charges against a Soldier must decline a request from the Soldier’s Trial Defense Counsel to release that client information if the Trial Counsel does not perceive that the requested disclosure is reasonably necessary to facilitate his representation of the Army acting through its authorized official (the court-martial convening authority). An Army lawyer who does not perceive that a requested disclosure of client information is reasonably necessary to facilitate the representation of his or her client may, prior to declining to disclose the information under implied authority, seek guidance from and consult with senior Army lawyers at the same or higher levels of command and, when the Army is the client, from the Army’s authorized official who received the legal advice. Using the same example immediately above, the Trial Counsel could seek guidance from and consult with his or her Chief of Military Justice, Staff Judge Advocate, and higher up the legal technical chain, concerning the Trial Counsel’s implied authority in this particular circumstance. In addition to or instead of seeking guidance from the legal technical chain, the Trial Counsel could discuss with the Army’s authorized official whether the requested disclosure is reasonably necessary to facilitate the Trial Counsel’s represen-tation of the Army. to make disclosures of attorney-client privileged and/or client-lawyer confidential information in order to carry out the representation of the Army should ordinarily first coordinate with his or her supervisory lawyer or other senior Army lawyers at the same or higher levels of command, to include, if necessary or appropriate, the Office of the General Counsel of the Army; the Office of The Judge Advocate General of the Army; the Office of the Command Counsel, Army Materiel Command; and the Office of the Chief Counsel, Army Corps of Engineers. For example, the Chief of the Administrative Law office in an installation or command Staff Judge Advocate Office should ordinarily first coordinate with the Staff Judge Advocate before releasing client information under implied authority. Similarly, a civilian attorney advisor in the Army Materiel Command or Army Corps of Engineers should ordinarily first coor-dinate with his or her supervisory lawyer or other senior lawyers at the same or higher levels of command before releasing client information under implied authority. Disclosures that involve client information that is noteworthy, sensitive for other reasons, or implicates matters of Armywide interest, should definitely be coordinated with senior Army lawyers at the same or higher levels of command, to include, if necessary or appropriate, the Office of the General Counsel of the Army; the Office of The Judge Advocate General of the Army; the Office of the Command Counsel, Army Materiel Command; and the Office of the Chief Counsel, Army Corps of Engineers, before release under implied authority. In addition, the Army lawyer should instruct any Army official who receives such disclosures that further dissemination of the disclosed client information is prohibited. There may be circumstances where infor-mation within legal advice could be appropriately sanitized and released as an Information Paper for use by others who would not have an official need to know the actual legal advice. may disclose attorney-client privileged and/or client-lawyer confidential information to anyone outside the Army without the informed consent of the appropriate Army official. This prohibition applies regardless of any argument presented by the individual outside of the Army. Requests for attorney-client privileged and/or client-lawyer confidential information submitted under the provisions of the Freedom of Information Act (see 5 USCUSCUnited States Code 552) and the Privacy Act (see 5 USCUSCUnited States Code 552a) must be analyzed and processed under the provisions of this Rule and Department of Defense and Army regulations governing the release of official information pursuant to those statutes. Discovery requests in civil or military litigation for attorney-client privileged and/or client-lawyer confidential information must be analyzed and processed under the provisions of this Rule, Department of Defense and Army regulations governing the release of official information in litigation, and other applicable law and court orders. All requests for attorney-client privileged and/or client-lawyer confidential information from members of Congress or Congressional commit-tees must be analyzed and processed under the provisions of this Rule, Department of Defense and Army regulations governing the release of official information to the Congress or members of Congress, and other applicable law. Invoking and Waiving the Privilege of the Department of the Army as Client absence of implied or express consent or an applicable exception specified in the Rule. See Comment (5). Express and implied authority to disclose client information is different from a waiver of the attorney-client privilege or client-lawyer confidentiality. Waiver of privilege or confidentiality applies when the covered disclosure is made to persons who are not otherwise covered by the privilege or confidentiality. In the situation where the Department of the Army is the client, when client information covered by the attorney-client privilege or client-lawyer confidentiality is properly disclosed to the Army’s authorized officials who have an official need to know the information, whether the disclosure is made under implied or express authority, those officials are considered privileged persons and no waiver of privilege or confidentiality has occurred. described in this Rule may qualify as privileged or confidential, but not every Army official has authority to invoke or waive the privilege or confidentiality on behalf of the Army. The attorney-client privilege and client-lawyer con-fidentiality for the Army can be invoked and waived only by a responsible official acting for the Army for this purpose. The Secretary of the Army is the ultimate responsible official for invoking and waiving the privilege and confidenti-ality where the Department of the Army is the client. Below the Secretary of the Army, responsible officials for this purpose will depend on the circumstances, but heads of Army organizational elements generally may invoke or waive the attorney-client privilege or the rule of client-lawyer confidentiality. See Rule 1.13(a)(1). No responsible official acting where the Army is the client may invoke or waive the attorney-client privilege or the rule of client-lawyer confidentiality for the official’s own personal benefit, but they may invoke or waive them for the benefit of the Army. See Rule 1.13(a)(1). In so waiving either the attorney-client privilege or client-lawyer confidentiality on behalf of the Department of the Army, the head of the organization or other responsible officials are subject to being overruled by higher appropriate authority in the Army. Similarly, invocation and waiver of privilege and confidentiality might automatically require referral to a higher level depending on the circumstances. For example, if a corps commander decides to become involved in a division-level matter that includes legal advice, the authority to waive privilege and confidentiality would ordinarily be exercised by the corps commander. Disclosure Adverse to Client client has consulted with a defense counsel or legal assistance lawyer, and once a client-lawyer relationship has been established, information concerning the client’s whereabouts usually constitutes information protected from disclo-sure. This confidential information includes whether the prospective, or actual, client has been to defense counsel or legal assistance office spaces and, if so, the time the prospective, or actual, client was there. By virtue of Rule 5.3, this Rule also applies to all other Army nonlawyer personnel, military and civilian, who perform duty in an Army, or any other, legal office in support of Army lawyers. of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1)(i) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take the necessary action to eliminate the threat. Under paragraph (b)(1)(i), a lawyer’s duty to disclose (“shall reveal information”) is not limited to acts of commission or omission by the client. Thus, a lawyer must report a client’s threat to harm a judge. Similarly, a lawyer must report information from a divorce client regarding the client’s spouse’s history of and interest in soliciting minors for sex, which constitutes “substantial bodily harm” within the meaning of Rule 1.6. the requirement on a lawyer who learns that a client intends prospective conduct that is criminal and likely to result in the significant impairment of national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system, to reveal information to the extent the lawyer reasonably believes necessary to prevent such conse-quences. Examples of conduct likely to result in the significant impairment of national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system include: divulging the classified location of a special operations unit such that the lives of members of the unit are placed in immediate danger; sabotaging a vessel or aircraft to the extent that the vessel or aircraft could not conduct an assigned mission, or that the vessel or aircraft and crew could be lost; and compromising the security of a weapons site such that the weapons are likely to be stolen or detonated. Paragraph (b)(1)(ii) is not intended to, and does not mandate, the disclosure of conduct that may have a slight impact on the readiness or capability of a unit, vessel, aircraft, or weapon system. Examples of such conduct are: absence without authority from a peacetime training exercise; intentional damage to an individually assigned weapon; and intentional minor damage to military property. confidential legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(2)(i) permits such disclosure because of the im-portance of a lawyer’s compliance with these Rules of Professional Conduct. conduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reason-ably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary, or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s right to respond arises when the claim or charge has been made. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client in the case of a third party's assertion and request that the client respond appropriately. Paragraph (b)(2)(ii) does not require the lawyer to await the commencement of an action or proceeding. The right to defend also applies, of course, where a proceeding has been commenced. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate the lawyer’s innocence; the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it; and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable. it. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4 and with his or her supervisory lawyers. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(2)(iii) of this Rule permits the lawyer to make such disclosures as are necessary to comply with the law. to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in Rule 1.0(f), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2)(v) does not require the lawyer to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2. See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances, and Rule 1.13(b) and (c), which permit the lawyer, where the client is the Department of the Army, to reveal information relating to the representation in limited circumstances. after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected persons can be prevented, rectified, or mitigated. In such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(2)(vi) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense. a lawyer owes a duty of candor to the court and has a duty under Rule 3.3(a) not to use false evidence. There may be a situation in which the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2(d) because to “counsel or assist” criminal or fraudulent conduct requires knowledge that the conduct is of that character. necessary to the purpose. Detection of Conflicts of Interest different firms may need to disclose limited information to each other to detect and resolve conflicts of interest, such as when an Army lawyer moves from a legal assistance office to the Trial Defense Service, or when a non-government civilian lawyer is considering an association with another firm or two or more firms are considering a merger. Under these circumstances, lawyers and law firms are permitted to disclose limited information, but only once an Army lawyer’s change in duty assignment has been approved by competent authority or, in the case of non-government civilian lawyers, substantive discussions regarding the new relationship have occurred. Any such disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated. Even this limited information, however, should be disclosed only to the extent reasonably necessary to detect and resolve conflicts of interest that might arise from the possible new relationship. Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client (for example, the fact that a person has consulted a lawyer about the possibility of divorce before the person’s intentions are known to the person’s spouse, or that a person has consulted a lawyer about a criminal investigation that has not led to preferral of a charge or a public charge, as appropriate). Under those circumstances (that is, compromise of the privilege or prejudice), para-graph (a) prohibits disclosure unless the client or former client gives informed consent. necessary to detect and resolve conflicts of interest. Paragraph (b)(2)(iv) does not restrict the use of information acquired by means independent of any disclosure pursuant to paragraph (b)(2)(iv). Paragraph (b)(2)(iv) also does not affect the disclosure of information within an Army legal office or civilian law firm when the disclosure is otherwise authorized (see Comments (7) through (12) to this Rule), such as when a lawyer in a military legal office or civilian firm discloses information to another lawyer in the same military legal office or firm to detect and resolve conflicts of interest that could arise in connection with undertaking a new representation. the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. For example, a lawyer may be called as a witness to give testimony concerning a client. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all non-frivolous claims that the order is not authorized by other law or that the information sought is protected against dis-closure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(2)(iii) permits the lawyer to comply with the court’s order. accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the infor-mation to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrange-ments should be sought by the lawyer to the fullest extent practicable. a client’s representation to accomplish the purposes specified in paragraph (b)(2). In exercising the discretion con-ferred by this Rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction, and factors that may extenuate the conduct in question. A lawyer’s decision not to disclose as permitted by paragraph (b)(2) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1, and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c). Acting Competently to Preserve Confidentiality client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1, and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reason-able efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if addi-tional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (for exam-ple, by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Fac-tors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 99–413 (1999) (holding a lawyer may transmit confidential client information through unencrypted email sent through the Internet). lawyers should have enclosed private offices which afford the degree of privacy necessary to preserve confidentiality. Under any circumstances, an Army lawyer must strive to avoid allowing unauthorized persons to overhear confidential conversations. Control or access by others to the Army’s communications and storage networks, platforms, and equip-ment utilized by the lawyer also must be considered. Control or access by personnel who are not subject to the Rules, or supervised by those subject to these Rules, may lead to a violation of the confidentiality required by this Rule. Former Client dies. This duty is specifically addressed in Rule 1.9(c)(2) (lawyer may not “reveal information relating to the repre-sentation except as these Rules would permit or require with respect to a client”). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client. CROSS REFERENCES: Rule 1.0 (e) “Firm” Rule 1.0 (f) “Fraud” Rule 1.0 (h) “Informed Consent” Rule 1.0 (o) “Reasonable” and “Reasonably” Rule 1.0 (p) “Reasonably Believes” Rule 1.0 (t) “Substantial” Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.4 Communication Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 1.9 Duties to Former Clients Rule 1.13 Department of the Army as Client Rule 1.16 Declining and Terminating Representation Rule 1.18 Duties to Prospective Client Rule 2.1 Advisor Rule 2.3 Evaluation for Use by Third Persons Rule 3.3 Candor Toward the Tribunal Rule 4.1 Truthfulness in Statements to Others Rule 5.1 Responsibilities of Senior Counsel and Supervisor Lawyers Rule 5.3 Responsibilities Regarding Nonlawyer Assistants Rule 5.4 Professional Independence of a Lawyer Rule 8.1 Bar Admission and Disciplinary Matters Rule 8.3 Reporting Professional Misconduct Rule 1.7 Conflict of Interest: Current Clients conflict of interest. A concurrent conflict of interest exists if: responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer. client if: each affected client; lawyer in the same litigation or other proceeding before a tribunal; and COMMENT: General Principles conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client, or a third person, or from the lawyer’s own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. or clients; (ii) determine whether a conflict of interest exists; (iii) decide whether the representation may be undertaken despite the existence of a conflict, that is, whether the conflict is consentable; and (iv) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in paragraph (a)(1) and the one or more clients whose representa-tion might be materially limited under paragraph (a)(2). his or her supervisory lawyer immediately and decline the representation unless, with the supervisory lawyer’s ap-proval, the lawyer obtains the informed consent of each client under the conditions of paragraph (b). A lawyer is not required to undertake the representation even if both clients provide informed consent. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see the Comments to Rules 1.2 and 1.3. sentation, unless the lawyer has obtained the informed consent of the client under the conditions provided in paragraph clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. See Rule 1.9. Identifying Conflicts of Interest: Directly Adverse informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, that is, that the representation may be materially limited by the lawyer’s interest in retaining the current client. See, however, Comment (25). Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients. the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client. Identifying Conflicts of Interest: Material Limitation ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. For example, loyalty to a client is impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests. These conflicting responsibilities or interests can be professional, commercial, or per-sonal. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possi-bility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Lawyer’s Responsibilities to Former Clients and Other Third Persons limited by responsibilities to former clients under Rule 1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary duties arising from a lawyer’s service as a trustee, executor, or corporate director. Personal Interest Conflicts whether pre-existing the client’s proceeding or contemplated during the course of a proceeding—involved in a pro-ceeding creates a strong appearance of a potential conflict of interest that must be disclosed to the client to permit the client to make an informed decision regarding the potential conflict of interest. During the pendency of any proceeding governed by these Rules, a lawyer shall not enter into a personal or commercial relationship with any other party, witness, judge, or lawyer involved in the case, unless full compliance with paragraph (b) occurs. Consideration should be given to whether the client wishes to accommodate the other interest involved. example, a military lawyer's desire to take leave or transfer duty stations should not motivate the lawyer to recommend a pretrial agreement in a case. If the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer’s client, or with a law firm representing the opponent, such discussions could materially limit the lawyer’s representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See 18 USCUSCUnited States Code 208 (which makes it a criminal offense for any Federal officer to participate personally and substantially in an official capacity in any particular matter in which the officer, or others whose interests are imputed to the officer, including potential employers, has a financial interest). See also Rule 1.8 for specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients; and Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm). related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence, and implications of, the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer (Lawyer A) related to another lawyer (Lawyer B), for example, as parent, child, sibling, or spouse, ordinarily may not represent a client in a matter where that lawyer (Lawyer B) is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10. client competently may be impaired by the lawyer’s personal or professional commitments. A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship. See Rule 1.8(j), and its Comments (18) and (19). Sexual relationships between a lawyer and another lawyer, or judge, or other person involved in a particular case, may constitute a material limitation on the lawyer’s ability to represent the client without impairment of the exercise of independent professional judgment. For example, if a lawyer (Lawyer A) engages in a sexual relationship with another lawyer (Lawyer B) currently represent-ing a party whose interests are adverse to those of a client currently represented by the lawyer (Lawyer A), the lawyer (Lawyer A) may be materially limited in his or her ability to represent the client without impairment of the exercise of independent professional judgment. The same material limitation may apply if a lawyer engages in a sexual rela-tionship with a judge who is presiding or who is likely to preside over any proceeding in which the lawyer will appear in a representative capacity, or if a lawyer engages in a sexual relationship with other persons involved in the particular case, judicial or administrative proceeding, or other matter for which representation has been established, including but not limited to witnesses, victims, co-accused, and court-martial or board members. Interest of Person Paying for a Lawyer's Service is charged with supervising the provision of legal services (to include non-government civilian lawyers practicing before courts-martial, administrative separation boards or hearings, boards of inquiry, and disability evaluation pro-ceedings) may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See Rule 1.8(f). For example, an accused Soldier’s Family may pay a civilian attorney to represent the Soldier at a court-martial. If acceptance of the payment from any other source presents a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s own interest in accommodating the person paying the lawyer’s fee or by the lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation. Prohibited Representations standing a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client. protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably con-clude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (Competence) and Rule 1.3 (Diligence). ble law or regulation. For example, under Federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. development of each client’s position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Informed Consent and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(h) (Informed Consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality, and the attorney-client privilege and the advantages and risks involved. See Comments (30) and (31) (effect of common representation on confidentiality). ple, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to common representation can be that each party obtains separate represen-tation. Consent Confirmed in Writing writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(c) (confirmed in writing) and (x) (writing includes electronic transmis-sion). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(c). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing. Revoking Consent the lawyer’s representation at any time. Whether revoking consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other clients, and whether material detriment to the other clients or the lawyer would result. Consent to Future Conflict text paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client rea-sonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, for example, the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circum-stances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b). Conflicts in Litigation consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as co-accused, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for a conflict of interest in representing multiple accused in a criminal case is so grave that ordi-narily a lawyer should decline to represent more than one co-accused. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met. different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case; for example, when a de-cision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved, and the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters. if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as an advocate against a client. For example, Army lawyers who normally represent the Army as the client in some circumstances may be authorized to represent Army employees in proceedings in which the Department of the Army or another government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation. Nonlitigation Conflicts be difficult to assess. Relevant factors in determining whether there is significant potential for material limitation include the duration and intimacy of the lawyer’s relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise, and the likely prejudice to the client from the conflict. The question is often one of the proximity and degree of conflict. See Comment (7). for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer’s relation-ship to the parties involved. represent multiple parties in a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis, for example, in advising a buyer and seller of an automobile and preparing a bill of sale. The lawyer seeks to resolve potentially adverse interests by developing the parties’ mutual interests. Otherwise, each party might have to obtain separate representation. Given this and other relevant factors, the clients may prefer that the lawyer act for all of them. Special Considerations in Common Representation common representation fails because the potentially adverse interests cannot be reconciled, the result can be embarrassment, recrimination, and perhaps additional delay and costs. Ordinarily, the lawyer will be forced to with-draw from representing all of the clients if the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot undertake common repre-sentation of clients where contentious litigation or negotiations between them are imminent or contemplated. More-over, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the clients’ interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer subsequently will represent all parties on a continuing basis and whether the situation involves creating or terminating a relationship between or among the parties. client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the pre-vailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised. client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client’s interests and the right to expect that the lawyer will use that information to that client’s benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client’s informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(c). representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16. Conflict Charged by an Opposing Party involving lawyers to whom these Rules apply is primarily the responsibility of the supervisory lawyer or the military judge. See also Rule 5.1. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple co-accused. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See Rule 1.2. Reserve Component Judge Advocates they are on active duty, actually drilling, on active-duty-for-training, or when performing other duties subject to The Judge Advocate General’s supervision. Therefore, unless otherwise prohibited by criminal conflict of interest statutes, Reserve or National Guard Judge Advocates providing legal services in their civilian capacity may represent clients, or work in firms whose lawyers represent clients, with interests adverse to the United States. Reserve or National Guard Judge Advocates who, in their civilian capacities, represent persons whose interests are adverse to the Depart-ment of the Army should provide written notification to their Army supervisory lawyer, detailing their involvement in the matter. Reserve or National Guard Judge Advocates shall refrain from undertaking any official action or rep-resentation of the Department of the Army with respect to any particular matter in which they are providing represen-tation or services to other clients. CROSS REFERENCES: Rule 1.0 (c) “Confirmed in Writing” Rule 1.0 (h) “Informed Consent” Rule 1.0 (x) “Writing” Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.3 Diligence Rule 1.4 Communication Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 1.9 Duties to Former Clients Rule 1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral Rule 1.13 Department of the Army as Client Rule 1.16 Declining or Terminating Representation Rule 2.3 Evaluation for Use by Third Persons Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 5.4 Professional Independence of a Lawyer Rule 1.8 Conflict of Interest: Current Clients: Specific Rules a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless: fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; advice of independent legal counsel on the transaction; and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. client gives informed consent, except as permitted or required by these Rules. a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the repre-sentation. proprietorial fiduciary or bailment relationship with a client, unless otherwise specifically authorized by competent authority. cate General is charged with supervising the provision of legal services shall not accept compensation for representing a client from one other than the client unless: tionship; and of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. the lawyer is conducting for a client. when the client-lawyer relationship commenced. a matter directly adverse to a person whom the lawyer knows is represented by the other lawyer, unless each client gives informed consent after consultation regarding the relationship. COMMENT: Army Lawyers ethics regulations that apply to Army lawyers, in all dealings with clients. Such regulations generally prohibit entering into business transactions with clients, deriving financial benefit from representations of clients, and accepting com-pensation or gifts in any form from a client or other person or entity, other than the U.S. Government, for the perfor-mance of official duties. Such regulations also prohibit profiting, directly or indirectly, from knowledge acquired in the course of the Army lawyer’s official duties. This Rule does not authorize conduct otherwise prohibited by such regulations. An Army lawyer will not make any referrals of legal or other business to any private civilian lawyer or enterprise with whom the Army lawyer has any present or expected direct or indirect personal interest. Special care will be taken to avoid giving preferential treatment to Reserve or National Guard Judge Advocates or other govern-ment lawyers acting in their private capacities. Business Transactions between Client and Lawyer reviewed by supervisory lawyers. All transactions must comply with promulgated standards of conduct and other statutes, lawful orders, and regulations. client, create the possibility of overreaching when the lawyer participates in a business, property, or financial transac-tion with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The require-ments of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the repre-sentation, 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. The Rule does not apply, however, to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, and products manufactured or distributed by the client. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and imprac-ticable. to the client, in writing, in a manner that can be reasonably understood. Paragraph (a)(2) requires that the client also be advised, in writing, of the desirability of seeking the advice of independent legal counsel. It also requires that the client be given a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that the lawyer obtain the client’s informed consent, in a writing signed by the client, both to the essential terms of the transaction and to the lawyer’s role. 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. See Rule 1.0(h) (definition of informed consent). 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 advisor 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 informed 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. paragraph (a)(1) requirement for full disclosure is satisfied either by a written disclosure by the lawyer involved in the transaction or by the client’s independent counsel. 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 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 client make such a purchase. This Rule does not prohibit uses that do not disadvantage the client. Paragraph (b) prohibits disadvantageous use of client information unless the client gives informed consent, except as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), 8.1, and 8.3. Gifts to Lawyers other statutes and ethics regulations that apply to Army lawyers, 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. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. 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). Literary Rights 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. Even after the representation has concluded, Army lawyers may be restricted in teaching, speaking, and writing activities, and re-ceiving compensation therefor, by applicable statutes and regulations. Financial Assistance chase of an authorized ribbon for wear on the accused's uniform during court–martial proceedings. Person Paying for a Lawyer's Services General is charged with supervising the provision of legal services (to include non-government civilian lawyers prac-ticing before courts-martial, administrative separation boards or hearings, boards of inquiry, and disability evaluation proceedings), 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, for example. Because third person 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 representation unless the lawyer determines that there will be no interference with the lawyer’s independent professional judgment and there is informed 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). payment and the identity of the third person payer. If, however, the fee arrangement creates a conflict of interest for the lawyer, then 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), a conflict of interest exists if there is significant risk that the law-yer’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 person payer (for example, when the third person is a co-client). Under Rule 1.7(b), the lawyer may accept or continue the representation with the informed consent of each affected client, unless the conflict is nonconsentable under that paragraph. Under Rule 1.7(b), the informed consent must be confirmed in writing. Aggregate Settlements of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before under-taking the representation, as part of the process of obtaining the clients’ informed 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 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 of them 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. See also Rule 1.0(h) (definition of informed consent). Limiting Liability and Settling Malpractice Claims it necessary to obtain prospective malpractice liability releases from clients such as the ones provided for in ABA Model Rule 1.8(h). See 10 USCUSCUnited States Code 1054 and 28 USCUSCUnited States Code 1346(b) and 2672, limiting remedies for malpractice by Army lawyers, in connection with providing legal services while acting within the scope of the person’s legal duties or employment, to actions against the United States. Acquiring Proprietary Interest in Litigation 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, such as the exception for reasonable contingent fees set forth in Rule 1.5 and the exception for certain advances of the costs of litigation set forth in paragraph (e). This Rule is not intended to apply to customary qualifications and limitations in legal opinions and memoranda. Client-Lawyer Sexual Relationships of trust and confidence. The relationship is almost always unequal, particularly in the military context, given differ-ences in rank and status; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role and dominant position and influence. If a lawyer permits the otherwise benign and even rec-ommended client reliance and trust to become the catalyst for a sexual relationship with a client, the lawyer violates one of the most basic of ethical obligations, not to use the trust of the client to the client’s disadvantage. This same principle underlies the rules prohibiting the use of client confidences to the disadvantage of the client and the rules that seek to ensure that lawyers do not take financial advantage of their clients. See Rules 1.6 and 1.8. lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. This emotional involvement has the potential to undercut the objective detach-ment necessary for competent representation. Moreover, a blurred line between the professional and personal rela-tionships 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 informed consent, this Rule prohib-its 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. tation 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(a)(2). representation by the lawyer. 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(a)(2). the Army) represents the Department of the Army acting through its authorized officials. See Rule 1.13. When the client is the Department of the Army, paragraph (j) of this Rule prohibits a lawyer from having a sexual relationship with an authorized official of the Army (for example, an officer, employee, or member of the Army) who supervises, directs, or regularly consults with that lawyer concerning the Army’s legal matters. lawyers and clients, including, for example, regulations that govern fraternization, relationships between Soldiers of different ranks, inappropriate or other unprofessional relationships, adultery, conduct unbecoming an officer, and mis-use of official position, and may constitute separate grounds for disciplinary or administrative action. may constitute a material limitation on the lawyer’s ability to represent the client without impairment of the exercise of independent professional judgment. See Rule 1.7(a)(2) and Comment (12) to that Rule. Family Relationships Between Lawyers Advocate to a court-martial convening authority and another lawyer is a civilian defense counsel with potential in-volvement in a case referred to court-martial by the convening authority served by that same Staff Judge Advocate. Related lawyers in the same office are governed by Rules 1.7, 1.9, and 1.10. The disqualification stated in Rule 1.8(l) is personal and is not imputed to other lawyers in the offices with whom the lawyer performs duty or practices. CROSS REFERENCES: Rule 1.0 (h) “Informed Consent” Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.5 Fees Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.9 Duties to Former Clients Rule 1.13 Department of the Army as Client Rule 1.16 Declining or Terminating Representation Rule 3.3 Candor Toward the Tribunal Rule 4.1 Truthfulness in Statements to Others Rule 5.4 Professional Independence of a Lawyer Rule 8.1 Bar Admission and Disciplinary Matters Rule 8.3 Reporting Professional Misconduct Rule 1.9 Duties to Former Clients same or a 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, confirmed in writing. which the lawyer formerly was associated had previously represented a client— unless the former client gives informed consent, confirmed in writing. sented a client in a matter shall not thereafter: permit or require with respect to a client, or when the information has become generally known; or client. COMMENT: tiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has defended an accused at trial could not properly act as appellate government counsel in the appellate review of the accused’s case. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent, confirmed in writing. Current and former Army lawyers must comply with this Rule to the extent required by Rule 1.11. lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Thus, the reassignment of military lawyers between defense, prosecution, court-martial review, claims, and legal assistance functions within the same military jurisdiction is not precluded by this Rule. See, for example, United States v. Stubbs, 23 M.J. 188 (C.M.A. 1987). The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question. When an Army lawyer is representing the Department of the Army (for example, as Staff Judge Advocate or Trial Counsel), the lawyer must take reasonable steps to avoid participating in decision-making or information-sharing that would have an adverse effect on a former client (for example, a former defense client). See also 18 USCUSCUnited States Code 207 (for related post-government service employment restrictions). or if there otherwise is substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Infor-mation acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. Where the Department of the Army is the client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation of a non-Army client; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. See 18 USCUSCUnited States Code 207 (for related post-government service employment restrictions). A former client is not required to reveal the confidential infor-mation learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services. should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel. mation protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to infor-mation about the clients actually served but not to information of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought. uing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9(c). For Army lawyers, this continuing duty applies not just to individual clients but to the Department of the Army as client. subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client. consent, which consent must be confirmed in writing under paragraphs (a) and (b). See Rule 1.0(h). they previously served while in private practice. CROSS REFERENCES: Rule 1.0 (h) “Informed Consent” Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees Rule 1.16 Declining or Terminating Representation Rule 1.10 Imputation of Conflicts of Interest: General Rule ified from representing a client because any of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9. thereafter representing a person with interests materially adverse to those of a client represented by the formerly as-sociated lawyer and not currently represented by the firm, unless: client; and 1.7. Rule 1.11. COMMENT: Definition of “Firm” 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. See Rule 1.0(e). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See Rule 1.0, Comments (2) through (4). Principles of Imputed Disqualification lawyers working in the same law office. Such representation is permissible so long as conflicts of interest are avoided and independent judgment, zealous representation, and protection of confidences are not compromised. Thus, the principle of imputed disqualification is not automatically controlling for Army lawyers. The knowledge, actions, and conflicts of interest of one Army lawyer are not imputed to another simply because they operate from the same office. For example, the fact that a number of defense lawyers operate from one office and normally share clerical assistance would not prohibit them from representing co-accused at trial by court-martial. Army policy, however, may address imputed disqualification in certain contexts. For example, Army policy discourages representation by one legal as-sistance office of both spouses involved in a domestic dispute. Imputed disqualification rules for non-government civilian lawyers are established by their individual licensing authorities and may well proscribe all lawyers from one law office from representing a co-accused, or a party with an adverse interest to an existing client, if any lawyer in the same office were so prohibited. analysis should include consideration of whether the following will be compromised: preserving client-lawyer confi-dentiality; maintaining independence of judgment; and avoiding positions adverse to a client. See, for example, United States v. Stubbs, 23 M.J. 188 (C.M.A. 1987). question of fact in a particular circumstance, aided by inferences, deductions, or working presumptions that reasonably may be made about the way in which Army lawyers work together. An Army lawyer may have general access to files of all individual clients of a military law office (for example, legal assistance lawyer) and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the office’s individual clients. In contrast, another Army lawyer (for example, military defense counsel) may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not to information of other clients. Additionally, an Army lawyer changing duty stations or changing assignments within a military office has a continuing duty to preserve confidentiality of information about a client formerly represented, whether the client was an individual or the Department of the Army. See Rules 1.6 and 1.9. spaces, equipment, and clerical assistance, inadvertent disclosure of confidential or privileged material may occur. An Army lawyer who mistakenly receives any such confidential or privileged materials should refrain from reviewing them (except for the limited purpose of ascertaining ownership or proper routing), notify the lawyer to whom the material belongs that he or she has such material, and either follow instructions of the lawyer with respect to the disposition of the materials or refrain from further reviewing or using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court. A lawyer’s duty to provide his or her client zealous representation does not justify a rule allowing the receiving lawyer to take advantage of inadvertent disclosures of privileged and/or confidential materials. This policy recognizes and reinforces the principles of: confidentiality and the attorney-client privilege; analogous principles governing the inadvertent waiver of the attorney-client privilege; the law governing bailments and missent property; and considerations of common sense, reciprocity, and professional courtesy. of action for a client without regard to the lawyer’s personal interests or the interests of another. When such inde-pendence is lacking or unlikely, representation cannot be zealous. involving positions adverse to a former client in substantially related matters. This obligation normally requires abstention from adverse representation by the individual lawyer involved, but, in the military legal office, abstention is not required by other Army lawyers through imputed disqualification. directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. More-over, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c). or former client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each affected client or former client has given informed consent to the representation, confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured by client consent. CROSS REFERENCES: Rule 1.0 (e) “Firm” Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 1.9 Duties to Former Clients Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees public officer or employee of the government: ally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. is associated may knowingly undertake or continue representation in such a matter unless: fee therefrom; and the provisions of this Rule. lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law or regulations from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. officer or employee: non-governmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially. versy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties, and or other appropriate government agency. COMMENT: ment of the Army, a joint or unified command within the Department of Defense or the Department of Defense itself, or another government agency, whether employed or specially retained by the government, is personally subject to these Army Rules of Professional Conduct for Lawyers, including the prohibition against concurrent conflicts of in-terest stated in Rule 1.7 and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is subject to this Rule and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which a government agency may give informed consent under this Rule. See Rule 1.0(h) for the definition of informed consent. serving as an officer of employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it would be prudent to screen such lawyers. designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the ad-vantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph paragraphs. agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. See 18 USCUSCUnited States Code 207 (related statutory restrictions on post-government service employment). A lawyer should not be in a position where benefit to the other client might affect performance of the lawyer's professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client’s adversary obtainable only through the lawyer’s government service. On the other hand, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The provisions for screening and waiver in paragraph (b) are necessary to prevent the disqualifica-tion rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function. it may be appropriate to treat that second agency as another client for purposes of this Rule, as when a lawyer is employed by a city and subsequently is employed by a federal agency. However, because the conflict of interest is governed by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do. dures). These paragraphs do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly relating the lawyer's compensation to the fee in the matter in which the lawyer is disqualified. screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent in order that the government agency will have a reasonable opportunity to ascertain that the lawyer is com-plying with this Rule and to take appropriate action if it believes the lawyer is not complying. knowledge; it does not operate with respect to information that merely could be imputed to the lawyer. two particular matters are the same, the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed. CROSS REFERENCES: Rule 1.0 (h) “Informed Consent” Rule 1.0 (r) “Screened” Rule 1.5 Fees Rule 1.7 Conflict of Interest: Current Clients Rule 1.9 Duties to Former Clients Rule 1.10 Imputation of Conflicts of Interest: General Rule Rule 1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other third-party neutral. undertake or continue representation in the matter unless: fee therefrom; and with the provisions of this Rule. quently representing that party. COMMENT: a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. See also 18 USCUSCUnited States Code 207 (related statutory restrictions on post-government service employment). The term “adjudicative officer” includes such officials as hearing officers, legal advisors to administrative boards, Article 32 (Uniform Code of Military Justice) investigating officers, summary court–martial officers, and also lawyers who serve as part-time judges. to represent a client in a matter in which the lawyer participated personally and substantially. This Rule forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See Rule 1.0(h) and (c). Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 2.4. under Rule 1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, paragraph (c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of this paragraph are met. lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified. employed, generally should be given as soon as practicable after the need for screening becomes apparent. CROSS REFERENCES: Rule 1.0 (c) “Confirmed in Writing” Rule 1.0 (h) “Informed Consent” Rule 1.0 (r) “Screened” Rule 1.6 Confidentiality of Information Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees Rule 2.4 Lawyer Serving as Third-Party Neutral Rule 1.13 Department of the Army as Client [Modified Title] below, an Army lawyer (or a lawyer retained by the Army) represents the Department of the Army (or the executive agency to which assigned) acting through its authorized officials. These officials include the heads of organizational elements within the Army, such as the commanders of armies, corps, divisions, and brigades, and the heads of other Army agencies or activities. The term Army as used in this and related Rules will be understood to mean the Depart-ment of the Army or the organizational element involved. legal services to the head of the organization, to include his or her subordinate commanders or staff, the client-lawyer relationship exists between the lawyer and the Department of Army as represented by the head of the organization as to matters within the scope of the official business of the organization. for the head of the organization's own personal benefit, but may invoke either for the benefit of the Department of the Army. In so invoking either the attorney-client privilege or client-lawyer confidentiality on behalf of the Department of the Army, the head of the organization is subject to being overruled by higher appropriate authority in the Army. (ii) Similarly, the head of the organization may not waive the attorney-client privilege or the rule of client-lawyer confidentiality for the head of the organization’s own personal benefit, but may waive either for the benefit of the Department of the Army. In so waiving either the attorney-client privilege or client-lawyer confidentiality on behalf of the Department of the Army, the head of the organization is subject to being overruled by higher appropriate au-thority in the Army. specifically assigned or authorized to do so by competent authority. Unless so authorized, the Army lawyer will advise the individual that there is no client-lawyer relationship between them. person associated with, the Army 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 Army, adverse to the legal interests or obligations of the Army, or a violation of law that reasonably might be imputed to the Army, then the lawyer shall proceed as is reason-ably necessary in the best interests of the Army. In determining how to proceed, the lawyer shall give due considera-tion to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the Army and the apparent motivation of the person involved, the policies of the Army concerning such matters, and any other relevant considerations. Any measures taken shall be designed to minimize disruption or prejudice to the interests of the Army and the risk of revealing information relating to the representation to persons outside the Army. Such measures may include, among others: result, must consider discussing the matter with supervisory lawyers within the Army lawyer's office or at a higher level within the Army; if warranted by the seriousness of the matter, referral to the supervisory lawyer assigned to the staff of the acting official's next superior in the chain of command; or organization, that his or her personal legal interests are at risk and that he or she should consult counsel as there may exist a conflict of interest for the lawyer and the lawyer's responsibility is to the organization. concerning the matter 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 a legal obligation to the Army, adverse to the legal interests or obligations of the Army, or a violation of law, the lawyer may consult with senior Army lawyers at the same or higher levels of command, advise them of the lawyer’s concerns, and discuss available alternatives to avoid any violation of legal interests or obligations, or of the law, by the Army. The lawyer may also terminate representation with respect to the matter in question. In no event shall the lawyer participate or assist in the illegal activity. tion shall report any such termination of representation to the lawyer’s supervisory lawyer or lawyer representing the next superior in the chain of command. a lawyer shall explain that the Department of the Army is the client when the lawyer knows or reasonably should know that the Army's interests are adverse to those of the officers, employees, members, or other persons with whom the lawyer is dealing. on behalf of the Army, subject to the provisions of Rule 1.7 and other applicable authority. If the Army's consent to such dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the Army other than the individual who is to be represented. or disciplinary action or administrative proceedings, or to provide civil legal assistance to an individual, has, for those purposes, a client-lawyer relationship with that individual. COMMENT: Department of the Army as Client act except through their authorized officials (that is, their appropriate officers, employees, and members). Officers, employees, and members are the constituents of the organizational client, that is, the Department of the Army as the client. For purposes of these Rules, an Army lawyer normally represents the Army acting through its officers, em-ployees, or members in their official capacities. It is to that client (the Army) when acting as a representative of the Army that a lawyer's immediate professional obligation and responsibility exists absent assignment or designation by competent authority within the Department of the Army to represent a specific individual client. client privilege and client-lawyer confidentiality with its lawyers. When one of the officers, employees, or members of the Department of the Army communicates in that person’s official capacity with an Army lawyer on a matter relating to the lawyer's representation of the organization on the organization's official business, the communication is protected by Rule 1.6 from disclosure to anyone outside the Department of the Army and to anyone inside the Army who does not have an official need to know. (For guidance with respect to privileged persons who have an official need to know, see Comment (9) to Rule 1.6.) This does not mean, however, that the officer, employee, or member is the client of the lawyer. It is the Army, and not the officer, employee, or member, that benefits from Rule 1.6 confi-dentiality. Further, an Army lawyer may not disclose information relating to the representation, even to other lawyers in the Army, except for disclosures explicitly or impliedly authorized in order to carry out the representation or as otherwise permitted by Rule 1.6. The Department of the Army's entitlement to confidentiality may not be asserted by an officer, employee, or member as a basis to conceal personal misconduct from Army authorities. See Rule 1.6 and its Comments for extensive guidance on authorized disclosures and invoking and waiving privilege and confidentiality when the Department of the Army is the client. 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 or has reason to know that an Army officer, employee, or member 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 Army, adverse to the legal interests or obligations of the Army, or a violation of law that reasonably might be imputed to the Army, then the lawyer must proceed as is reasonably necessary in the best interests of the Army. As defined in Rule 1.0(j), knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious. of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the Army and the apparent motivation of the person involved, the policies of the Army 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 official to reconsider the matter; for example, if the circum-stances involve an acting official’s innocent misunderstanding of law or regulation and subsequent acceptance of the lawyer’s advice, the lawyer may reasonably conclude that the best interest of the Army does not require that the matter receive a separate legal opinion, or that supervisory lawyers within the Army lawyer's office or at a higher level within the Army be consulted, or that the matter be referred to higher authority. If the acting official 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 organizational element involved. If the matter is of sufficient seriousness and importance or urgency to the Army, referral to higher authority in the organization may be necessary even if the lawyer has not communicated with the acting official. Army lawyers should refer such matters through their legal supervisory channels. Any measures taken should, to the extent practicable, minimize the risk of revealing information relating to the represen-tation to persons outside not just the Department of the Army, but the chain of command or supervision of the Army organizational element involved. Even in circumstances where a lawyer is not obliged by Rule 1.13 to proceed, a lawyer may bring to the attention of an Army 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 Department of the Army. mised. Nevertheless, in a matter involving the conduct of Army officials, an Army lawyer has authority under appli-cable laws and ethics regulations to question such conduct more extensively than that of a lawyer for a private organ-ization in similar circumstances. Thus, when the Army is the client, a different balance is appropriate between main-taining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved. Determining whether to reveal communications with an Army organizational element client, for example, a com-mander or activity head, to higher Army authority requires mature judgment and common sense. If a lawyer perceives a conflict between his or her professional commitments to the commander and his or her ethical obligations to the Army, he or she may, and in most cases should, consult with or refer the matter to a supervisory lawyer (see Rules 5.1 and 5.2). If the situation cannot be resolved at that level, the senior supervisory lawyer should consult with appropriate lawyers at the next higher level of legal supervision. In extreme cases it may be necessary to refer the matter to the appropriate Senior Counsel. ual unless specifically authorized by competent authority, such as a statute, Executive Order, directive, regulation, or, on a case-by-case basis, by the appropriate Senior Counsel or their designee. Further, the rule affirmatively requires an Army lawyer to advise an individual with whom they are dealing that, absent express authorization from competent authority, no client-lawyer relationship exists. command or another executive agency, owes loyalty to that organization or agency. It is to that client that an Army lawyer's immediate professional obligation and responsibility exists, absent assignment or designation by the organi-zation to represent a specific individual client. proceedings are brought of a criminal, disciplinary, administrative, or personal character, establishes a client-lawyer relationship with its privilege and professional responsibility to protect and defend the interest of the individual rep-resented. This is also applicable to Army lawyers representing individuals before military commissions or tribunals, as well as those providing civil legal assistance. But see Rule 1.2. Representation of members of the Army, Govern-ment employees, and other individuals in accordance with paragraph (h) and the assumption of the traditional client-lawyer relationship with such individuals is not inconsistent with the lawyer's duties to the Department of the Army, so long as no other conflict exists. Relation to Other Rules in other Rules. In particular, this Rule does not limit or expand the lawyer's responsibility under Rule 1.6, 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). Under paragraph (c) the lawyer may reveal such information only when the highest authority insists upon or fails to address threatened or ongoing action that is clearly a violation of a legal obligation to the Army, adverse to the legal interests or obligations of the Army, or a violation of law, and then only to the extent the lawyer reasonably believes necessary in the best interests of the Army. 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 Army. Further, if the lawyer’s services are being used by an Army organizational element acting through an authorized official to further a crime or fraud by the organization, Rule 1.6(b)(2)(v)-(vi) permits 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 may be required. Clarifying the Lawyer's Role of its officers, employees, or members. In such circumstances, the lawyer should advise the officer, employee, or member that the lawyer cannot represent or advise such person on those matters in which the person’s interests are adverse to those of the Army, and that such person may wish to obtain independent representation from an Army lawyer authorized to provide such representation or advice, or from other personal counsel. Care must be taken to assure that such person understands that, when there is such adversity of interest, the Army lawyer represents the Army and cannot provide legal representation for or advice to such person on the matter in which the person’s interests are adverse to those of the Army, and that discussions between the lawyer for the Army and such person will not be privileged under Rule 1.6. of the Army may turn on the specific facts of each case. See also paragraph (a)(2) of this Rule. Dual Representation Army whose official interests are consistent with those of the Department of the Army. Client-lawyer confidentiality with the officer, employee, or member of the Department of the Army only extends to matters within the scope of the authorized representation. CROSS REFERENCES: Rule 1.0 (j) “Knowledge” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 1.16 Declining or Terminating Representation Rule 2.1 Advisor Rule 3.3 Candor Toward the Tribunal Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 4.1 Truthfulness in Statements to Others Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 5.4 Professional Independence of a Lawyer Rule 1.14 Client With Diminished Capacity ished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. COMMENT: assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a dimin-ished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about mat-ters affecting the client’s own well-being. For example, children as young as 5 or 6 years of age, and certainly those of 10 or 12, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make deci-sions on the client’s behalf. sentative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor, for example, as a Special Victim Counsel. If the lawyer represents the guardian as distinct from the minor, and is aware that the guardian is acting adversely to the minor’s interest, the lawyer may have an obligation to prevent or rectify the guardian’s misconduct. See Rule 1.2(d). Taking Protective Action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. For example, a client expression of intent to take his or her own life may be indicative that the client lacks sufficient capacity to make adequately considered decisions in connection with the representation. Protective measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision-making tools such as durable powers of attorney, or consulting with support groups, professional services, adult-protective agencies, or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decision-making au-tonomy to the least extent feasible, maximizing client capacities, and respecting the client’s family and social connec-tions. as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician, recognizing that military law does not recognize a doctor-patient privilege. litem, conservator, or guardian is necessary to protect the client’s interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client’s benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the profes-sional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client. Disclosure of the Client’s Condition the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. See also Rule 1.6(b)(1)(i) (lawyer shall reveal information relating to representation of a client to the extent lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm to anyone, including the client). Emergency Legal Assistance threatened with imminent and irreparable harm, an Army lawyer may take legal action on behalf of such a person, if duly authorized by competent authority to represent individual clients or that individual client in particular, even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer would with respect to a client. confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or imple-ment other protective solutions as soon as possible. CROSS REFERENCES: Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.3 Diligence Rule 1.6 Confidentiality of Information Rule 1.15 Safekeeping Property connection with a representation only when doing so is necessary to further the representation of the client. When it is necessary for a lawyer to hold property, the lawyer must exercise the care of a fiduciary. Such property shall be clearly labeled or otherwise identified, kept separate from the lawyer’s own personal property and from government property, and appropriately safeguarded. The lawyer should promptly return property to the client or third person when its retention by the lawyer is no longer necessary to further the representation of the client. When property of a client or third person is admitted into evidence or otherwise included in the record of an administrative or criminal proceeding, the lawyer should take reasonable action to ensure its prompt return to the client or third person. notify the client or third person. Except as stated in this Rule or otherwise permitted by law, regulation, or policy or by agreement with the client, a lawyer shall promptly deliver to the client or third person any property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full ac-counting regarding such property. whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. COMMENT: legal assistance lawyers and trial defense counsel will need to receive documents and other items from clients or third persons in order to properly investigate, research, and complete legal matters. For example, a trial defense counsel will need his or her client’s original award certificates, not copies. Should an Army lawyer find it necessary to hold such property, care will be taken to ensure that the Army does not become responsible for any claims for the property. This Rule does not authorize Army lawyers to hold property of clients or third persons when otherwise prohibited from doing so. that is the property of clients or third persons, including prospective clients, must be kept separate from the lawyer’s own personal property and from government property. authority permission to withdraw the property as an exhibit and to substitute a description or photograph after trial or other proceeding. Paragraph (a) requires a lawyer to take reasonable steps to secure the return of property used as evidence to the client or third person from whom it was received, keeping in mind that return may not be possible until appellate review is completed. guidance. first consult with his or her supervisory lawyer in order to explore options to avoid holding money or securities. In any case in which a lawyer does hold such money or securities, the lawyer should consult the Rules of their state licensing authority, and ABA Model Rule 1.15, for guidance regarding this issue. as a client’s roommate, landlord, or a co-accused. A lawyer may have a duty under applicable law to protect such third person claims against wrongful interference by the client. In such cases, when the third person claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third person. CROSS REFERENCES: Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 3.4 Fairness to Opposing Party and Counsel Rule 1.16 Declining or Terminating Representation shall seek to withdraw from the representation of a client if: criminal or fraudulent; mental disagreement; reasonable warning that the lawyer will seek to withdraw unless the obligation is fulfilled; government lawyer, the representation will result in an unreasonable financial burden on the lawyer; or when terminating a representation. When ordered to do so by a tribunal or other competent authority, a lawyer shall continue representation notwithstanding good cause for terminating the representation. protect a client's interests, such as giving reasonable notice to the client, allowing time for assignment or employment of other counsel, surrendering papers and property to which the client is entitled and, where a non-government lawyer provided representation, refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by law or regulation. COMMENT: promptly, without improper conflict of interest, and to completion. Mandatory Withdrawal engage in conduct that is illegal or violates these Rules of Professional Conduct or other law or regulation. The lawyer is not obliged to decline or seek to withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation. authority, for example, the appointing or detailing authority. Similarly, court approval or notice to the court is often required by applicable law or regulation before a lawyer withdraws from pending litigation. Difficulty may be en-countered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations both to clients and the court under Rules 1.6 and 3.3. Discharge by the Client ment lawyer, to liability for payment of the lawyer’s services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances. to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing or detailing authority that appointment of successor counsel is unjustified, thus requiring self-representa-tion by the client. in any event, the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14. Optional Withdrawal to withdraw if it can be accomplished without material adverse effect on the client's interests. Seeking to withdraw is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Seeking to withdraw is also permitted if the lawyer's services were misused in the past, even if withdrawal would materially prejudice the client. The lawyer also may seek to withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. to the representation, such as an agreement concerning fees or an agreement limiting the objectives of the representa-tion. lawyer's services are made available to the client. See Rule 1.2 Comment. Good cause to seek withdrawal exists when a lawyer changes duty stations or changes duties within an office. For example, a legal assistance lawyer or Special Victim Counsel has good cause to seek withdrawal from further representation of a current legal assistance client, to include a Special Victim Counsel client, when the lawyer is reassigned to new duties, for example, as a trial counsel, defense counsel, administrative law lawyer, or operational law lawyer, whether the new duties are within the same or a different legal office and whether the new duties are on the same or a different installation. In such a circumstance, the change of assignment duties constitutes not just good cause but also permission for the legal assis-tance lawyer or the Special Victim Counsel to withdraw from representation of current legal assistance or special victim clients by virtue of reassignment to new duties. Withdrawal from representation of current individual clients should be perfected prior to the lawyer’s assumption of his or her new duties. If a question arises as to whether a lawyer has permission to withdraw from a particular representation, the lawyer should consult with the supervisory lawyer who has the authority to grant permission to withdraw from the representation. If the supervisory lawyer will not authorize withdrawal from representing a client but the lawyer’s new supervisory lawyer for his new duties be-lieves that the continued representation will present a conflict with the new duties, the question of withdrawal will be resolved by appropriate higher authority. In no event may a client contravene the decision of competent authority to withdraw a lawyer from representation of the client. A client’s desire to continue to be represented by a lawyer who has been assigned to new duties that would not otherwise permit such representation is a factor that can be considered by appropriate competent authority, who will balance the client’s preference against the lawyer’s new duties and responsibilities to his new client(s), potential conflicts of interest, the efficient and effective delivery of legal services within the office and the Army, and the professional development of Army lawyers. Continued Representation Notwithstanding Good Cause always free to withdraw from representation. Notwithstanding the existence of good cause for terminating represen-tation, a lawyer appointed or detailed to represent a client shall continue such representation until properly relieved by competent authority. Who is competent authority will differ with the circumstances. For example, in a trial by court–martial, the authority who originally appointed or detailed the lawyer to represent the client would be competent authority prior to trial; the military judge would be competent authority once trial begins. After trial, representation may be terminated pursuant to regulation. A lawyer representing the Department of the Army may be authorized to withdraw from the representation by the lawyer’s supervisory lawyer chain or by the appropriate Senior Counsel (see Rules 1.0(s) and 5.1). Difficulty may be encountered where competent authority requires an explanation for the ter-mination, while the lawyer may be bound to keep confidential under Rule 1.6 the facts that would constitute such an explanation. See also Comment (3). The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient in those situations where the competent authority is not privy to the client’s confidentiality privilege. Where necessary and practicable, a lawyer should seek the advice of a supervisory lawyer. The decision by one authority to continue representation does not prevent the lawyer from seeking withdrawal from other competent authority, such as a military judge. Assisting the Client upon Withdrawal all reasonable steps to mitigate the consequences to the client. Such steps may include referral of the client to another lawyer who is able to represent the client further. A lawyer making such a referral should ensure that these Rules and any Army policy governing referral of clients are followed. If a lawyer must refer a client to another lawyer due to a conflict of interest, the referring lawyer should be careful not to disclose confidential information relating to represen-tation of another client. to the Army after withdrawing or being released by the Army's highest authority is beyond the scope of these Rules. CROSS REFERENCES: Rule 1.0 (s) “Senior Counsel” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.13 Department of the Army as Client Rule 1.14 Client with Diminished Capacity Rule 3.1 Meritorious Claims and Contentions Rule 3.3 Candor Toward the Tribunal Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 1.17 Sale of Law Practice [Omitted] Rule 1.18 Duties to Prospective Client [Modified] a matter is a prospective client. shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client. of a prospective client in the same or a substantially related matter if the lawyer received information from the pro-spective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). In the case of non-government lawyers, if a non-government lawyer, who was consulted by a prospective client for representation in any matter for which The Judge Advocate General is charged with supervising the provision of legal services, for example, a court-martial, administrative separation board, or disability evaluation proceeding, is disqual-ified from representation under this paragraph, no lawyer in a firm with which that non-government lawyer is associ-ated may knowingly undertake or continue representation in such a matter. if: mation than was reasonably necessary to determine whether to represent the prospective client; and government lawyer, is also apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. COMMENT: lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s consultations with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients. relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the sub-mission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. See Com-ment (4). In contrast, a consultation does not occur if a person provides information to a lawyer in response to adver-tising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a “prospective client.” Moreover, a person who communicates with a lawyer for the purpose of disquali-fying the lawyer is not a “prospective client.” to the decision about formation of a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is able to undertake. Paragraph (b) prohibits the lawyer from using or revealing that information, except as permitted by Rule 1.9, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be. not to undertake a new matter should limit the initial consultation to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-repre-sentation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under Rule 1.7, then consent from all affected present or former clients must be obtained before accepting the representation. mation disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. See Rule 1.0(h) for the definition of informed consent. If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client. with interests adverse to those of the prospective client in the same or substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter. lawyers in the non-government lawyer’s firm but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective client and affected clients. In the alterna-tive, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. See Rule 1.0(r) (requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but the lawyer may not receive compensation directly related to a matter in which the lawyer is disqualified. screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. Rule 1.1. For a lawyer’s duties when a prospective client entrusts valuables or papers to the lawyer’s care, see Rule 1.15. CROSS REFERENCES: Rule 1.0 (c) “Confirmed in Writing” Rule 1.0 (e) “Firm” Rule 1.0 (h) “Informed Consent” Rule 1.0 (k) “Knowingly” Rule 1.0 (o) “Reasonable” and “Reasonably” Rule 1.0 (r) “Screened” Rule 1.0 (x) “Written” Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.9 Duties to Former Clients Rule 1.15 Safekeeping Property COUNSELOR Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering 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. COMMENT: Scope of Advice volves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations. can involve problems within the professional competence of psychiatry, clinical psychology, or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts. Offering Advice a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest. CROSS REFERENCES: Rule 1.4 Communication Rule 1.6 Confidentiality of Information Rule 1.13 Department of the Army as Client Rule 3.1 Meritorious Claims and Contentions Rule 5.4 Professional Independence of a Lawyer Rule 2.2 Intermediary [Deleted 2002] [Model Rule 2.2 was deleted by the ABA in 2002. Issues relating to lawyers acting as intermediaries are dealt with in the Comment to Rule 1.7. Intermediation and the conflict of interest issues it raises are no longer treated separately from any other multiple-representation conflicts. For further explanation of the deletion of Rule 2.2, see American Bar Association, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982– 2013, at 419–22 (2013).] Rule 2.3 Evaluation for Use by Third Persons the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent, con-firmed in writing. relating to the evaluation is otherwise protected by Rule 1.6. COMMENT: Definition for the benefit of third parties. For example, an Army lawyer is asked to prepare a brief setting forth the Department of the Army’s position on a situation for use by another governmental agency or the U.S. Congress. on the legality of the contemplated action. In making such an evaluation, the lawyer acts at the behest of the Depart-ment of the Army as the client but for the purpose of establishing the limits of the Army's authorized activity. Such an opinion may be confidential legal advice depending on whether the Army intended it to be confidential. a client-lawyer relationship. For example, an Army lawyer detailed to conduct a foreign claims investigation of a traffic accident between a foreign national and a Soldier in accordance with applicable Army regulations does not have a client-lawyer relationship with the Soldier. So also, an investigation into a person's affairs by a government lawyer, or by special counsel employed by the government, is not an evaluation as that term is used in this Rule. The question is whether the lawyer represents the person whose affairs are being examined. When the lawyer does repre-sent that person, the general rules concerning loyalty to client and preservation of confidences apply. For this reason, it is essential to identify the client. The identity of the client should be made clear not only to the person under examination, but also to others to whom the results are to be made available. Duty to Third Person may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer relationship, careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken on behalf of the client. For example, if the lawyer is acting as an advocate in defending the client against charges of fraud, it would normally be incompatible with that responsibility for the lawyer to perform an evaluation for others concerning the same or a related transaction. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer's responsibilities to third persons and the duty to disseminate the findings. Access to and Disclosure of Information Ordinarily a lawyer should have whatever latitude of investigation seems necessary as a matter of professional judg-ment. Under some circumstances, however, the terms of the evaluation may be limited. For example, certain issues or sources may be categorically excluded, or the scope of search may be limited by time constraints or the noncoop-eration of persons having relevant information. Any such limitations that are material to the evaluation should be described in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer’s obligations are determined by law, having reference to the terms of the client’s agreement and the surrounding circumstances. In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation under this Rule. See Rule 4.1. Obtaining Client’s Informed Consent third party poses no significant risk to the client; thus, the lawyer may be impliedly authorized to disclose information to carry out the representation. See Rule 1.6(a). Where, however, it is reasonably likely that providing the evaluation will affect the client’s interests materially and adversely, the lawyer must first obtain the client’s consent after the client has been adequately informed concerning the important possible effects on the client’s interests; the lawyer should also consult with his or her supervisory lawyer for advice and guidance. See Rules 1.6(a) and 1.0(h). CROSS REFERENCES: Rule 1.0 (h) “Informed Consent” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.9 Duties to Former Clients Rule 1.13 Department of the Army as Client Rule 1.16 Declining or Terminating Representation Rule 4.1 Truthfulness in Statements to Others Rule 4.2 Communication with Person Represented by Counsel Rule 4.3 Dealing with Unrepresented Person Rule 4.4 Respect for Rights of Third Persons Rule 2.4 Lawyer Serving as Third-Party Neutral lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client. COMMENT: clients in dispute-resolution processes, lawyers often serve as third-party neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator, or evaluator, who assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator, or decision-maker depends on the particular process that is either selected by the parties or man-dated by a court. are allowed to serve in this role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neu-trals. Lawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitrators in Commercial Disputes prepared by a joint committee of the ABA and the American Arbitration Association, or the Model Standards of Conduct for Mediators jointly prepared by the ABA, the American Arbitration Association, and the Society of Professionals in Dispute Resolution. as a result of differences between the role of a third-party neutral and a lawyer’s service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute-resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under paragraph (b) will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected. in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer’s law firm are addressed in Rule 1.12. sional Conduct and those of their licensing authorities. When the dispute-resolution process takes place before a tribunal, as in binding arbitration (see Rule 1.0(w)), the lawyer’s duty of candor is governed by Rule 3.3. Otherwise, the lawyer’s duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1. CROSS REFERENCES: Rule 1.0 (j) “Knows” Rule 1.0 (q) “Reasonably Should Know” Rule 1.0 (w) “Tribunal” Rule 1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral Rule 3.3 Candor Toward the Tribunal Rule 4.1 Truthfulness in Statements to Others ADVOCATE Rule 3.1 Meritorious Claims and Contentions [Modified] A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the accused in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, discharge from the Army, or other adverse personnel action, may never-theless so defend the proceeding as to require that every element of the case be established. COMMENT: abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change. not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification, or reversal of existing law. United States v. Grostefon, 12 M. J. 431 (C.M.A. 1982). CROSS REFERENCES: Rule 1.3 Diligence Rule 1.4 Communication Rule 1.6 Confidentiality of Information Rule 3.2 Expediting Litigation Rule 3.3 Candor Toward the Tribunal Rule 3.4 Fairness to Opposing Party and Counsel Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 3.2 Expediting Litigation [Modified] A lawyer shall make reasonable efforts to expedite litigation and other proceedings consistent with the interests of the client. COMMENT: Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client. CROSS REFERENCES: Rule 1.4 Communication Rule 3.1 Meritorious Claims and Contentions Rule 3.3 Candor Toward the Tribunal Rule 3.3 Candor Toward the Tribunal previously made to the tribunal by the lawyer; adverse to the position of the client and not disclosed by opposing counsel; by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reason-able remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of an accused in a criminal matter, that the lawyer reasonably believes is false; or tion that no valid order should exist. is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. pliance requires disclosure of information otherwise protected by Rule 1.6. enable the tribunal to make an informed decision, whether or not the facts are adverse. COMMENT: 1.0(w) for the definition of “tribunal.” It also applies when the lawyer is representing a client in an ancillary proceed-ing conducted pursuant to the tribunal’s adjudicative authority, such as a deposition. Thus, for example, paragraph fying in a deposition has offered evidence that is false. integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a case, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false. Representations by a Lawyer to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b). Misleading Legal Argument lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case. The term “legal authority in the controlling jurisdiction” in paragraph (a)(2) refers to Army or Department of Defense regulations or directives, the Manual for Courts-Martial, opinions by military appellate courts, or similar authorities. A lawyer should not knowingly fail to disclose to the tribunal legal authority from a non-controlling jurisdiction, known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, if the legal issue being litigated has not been decided by a controlling jurisdiction and the judge would reasonably consider such au-thority important to resolving the issue being litigated. False Evidence the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity. lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows to be false. For more on false testimony by the client, see Comments (10) through (14), below. lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(j). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood. the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. the conduct of a reasonably prudent and competent lawyer. “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. A “reasonable belief” or “reasonably believes” when used in reference to a lawyer means that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. Knowledge may be inferred from circumstances. See Rule 1.0 (b), (j), (o), and (p). False Evidence - Client Perjury Special Victim Counsel in criminal cases. even when the lawyer knows that such testimony will be false. For example, if an accused confesses his guilt to his lawyer, yet insists on testifying on his own behalf as to his innocence, the lawyer has actual knowledge of his client’s guilt yet cannot refuse his client’s right to testify. In such cases, when an accused insists on exercising his right to testify and the lawyer knows that the testimony is false, the lawyer must advise the accused against taking the witness stand to testify falsely. The lawyer should thoroughly explain the lawyer’s duty of candor to the tribunal as required by this Rule. If prior to trial the accused continues to insist on testifying, the lawyer may seek to withdraw from the case. See Rule 1.16. If that is not permitted or if the situation arises during the trial or other proceedings and the accused insists upon testifying falsely, it is unprofessional conduct for the lawyer to lend aid to the perjury or use the perjured testimony. While a criminal accused has the right to the assistance of a lawyer, the right to testify, and a right of confidential communications with his lawyer, the accused does not have the right to assistance of counsel in com-mitting perjury. Further, a lawyer has an obligation, not only in professional ethics but under the law, to avoid impli-cation in the commission of perjury or other falsification of evidence. See Rule 1.2(e). knows to be false, the lawyer must take remedial action to rectify the situation. The lawyer should immediately advise the accused of the lawyer’s duties under this Rule and seek the accused’s cooperation in correcting the false statement. If the accused refuses to cooperate, the lawyer must make such disclosure to the tribunal as reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. The disclosure of an accused’s false testimony can result in grave consequences to the accused, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. It may also require the lawyer to withdraw from representing the accused. See paragraph (c) and Comment (19). But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process that the adversary system is designed to implement. See Rule 1.2(d). Further, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the accused can simply reject the lawyer’s advice to reveal the false evi-dence and insist that the lawyer keep silent. Thus, an accused could in effect coerce the lawyer into being a party to fraud on the court. a lawyer to refuse to offer the testimony of an accused where the lawyer reasonably believes but does not know that the testimony will be false. For example, if an accused confessed to a crime to investigators and then subsequently recanted, and now desires to testify on his/her own behalf as to his/her innocence, the lawyer may have a reasonable belief that the accused’s testimony may be false as to innocence, but does not have actual knowledge, absent any other information provided by the client. Thus, the lawyer cannot refuse the accused his/her right to testify. Remedial Measures evidence is false. Or, a lawyer may be surprised when his/her client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-exami-nation by the opposing lawyer. In such situations, the lawyer’s proper course is to remonstrate with the client confi-dentially, advise the client of the lawyer’s duty of candor to the tribunal, and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the lawyer must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done: making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing. Preserving Integrity of Adjudicative Process the integrity of the adjudicative process, such as bribing, intimidating, or otherwise unlawfully communicating with a witness, panel or court member, court official, or other participant in the proceeding, unlawfully destroying or con-cealing documents or other evidence, or failing to disclose information to the tribunal when required by law or regu-lation to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer’s client, intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding. Duration of Obligation established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed. Ex Parte Proceedings consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as a hearing before an initial review officer, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge, magistrate, or other official has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. Withdrawal withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer’s disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer’s compliance with this Rule’s duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client. See also Rule 1.16(b) for circumstances in which a lawyer will be permitted to seek a tribunal’s permission to withdraw. In connection with a request for permission to withdraw that is premised on a client’s misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6. CROSS REFERENCES: Rule 1.0 (b) “Belief,” “Believes” Rule 1.0 (j) “Knowingly,” “Known,” “Knows” Rule 1.0 (o) “Reasonable,” “Reasonably” Rule 1.0 (p) “Reasonable Belief,” “Reasonably Believes” Rule 1.0 (w) “Tribunal” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.6 Confidentiality of Information Rule 1.16 Declining or Terminating Representation Rule 3.1 Meritorious Claims and Contentions Rule 3.4 Fairness to Opposing Party and Counsel Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 4.1 Truthfulness in Statements to Others Rule 8.4 Misconduct Rule 8.5 Jurisdiction Rule 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; by law; that no valid obligation exists; a legally proper discovery request by an opposing party; by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; or such information. COMMENT: by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. These situations may arise in matters where a Special Victim Counsel represents a victim who, although a client, is not a party to the litigation. These situations also arise in cases where the Department of the Army is not a party to the litigation, but lawyers are assigned to facilitate access for the parties to Army information, evidence, and witnesses. The prohibitions of this Rule apply equally to lawyers whether or not the Department of the Army is a party to the litigation. privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed, or destroyed. Applicable law in many jurisdictions, including the Uniform Code of Military Justice, makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose com-mencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evi-dentiary material generally, including computerized information. criminal conduct shall disclose the location of or shall deliver that item to proper authorities when required by law or court order. Thus, if a lawyer receives contraband, the lawyer has no legal right to possess it and must always surrender it to lawful authorities. If a lawyer receives stolen property, the lawyer must surrender it to the owner or lawful authority to avoid violating the law. The appropriate disposition of such physical evidence is a proper subject to discuss confidentially with a supervisory lawyer. When a client informs the lawyer about the existence of material having potential evidentiary value adverse to the client or when the client presents but does not relinquish possession of such material to the lawyer, the lawyer should inform the client of the lawyer's legal and ethical obligations regard-ing evidence. Frequently, the best course for the lawyer is to refrain from either taking possession of such material or advising the client as to what course of action should be taken regarding it. See Rules 1.6 and 1.7. If a lawyer discloses the location of or delivers an item of physical evidence to proper authorities, such action should be done in the way best designed to protect the client's interest. The lawyer should consider methods of return or disclosure which best protect: (a) the client's identity; (b) the client's words concerning the item; (c) other confidential information; and (d) the client's privilege against self–incrimination. terms permitted by law and regulation. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. information to another party, for such persons may identify their interests with those of the client. See also Rule 4.2. CROSS REFERENCES: Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 3.3 Candor Toward the Tribunal Rule 4.1 Truthfulness in Statements to Others Rule 4.2 Communication with Person Represented by Counsel Rule 4.4 Respect for Rights of Third Persons Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 5.4 Professional Independence of a Lawyer Rule 3.5 Impartiality and Decorum of the Tribunal A lawyer shall not: member, or other official by means prohibited by law; tribunal member, or other official during the proceeding unless authorized to do so by law, regulation, or court order; member, after discharge of the court, board, or tribunal if: COMMENT: the Code of Judicial Conduct for Army Trial and Appellate Judges, with which a lawyer should be familiar. A lawyer is required to avoid contributing to a violation of such provisions. proceeding, such as judges, board presidents, hearing officers, or court or board or tribunal members, unless authorized to do so by law, regulation, or court order. member, after the court, board, or tribunal has been discharged. The lawyer may do so unless the communication is prohibited by law, regulation, or court order but must respect the desire of the member not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication. regulation. Refraining from abusive or obstreperous conduct is a corollary of the lawyer’s right to speak on behalf of litigants. A lawyer is required to be respectful to military judges, court-martial members, administrative board mem-bers, opposing counsel, victims, witnesses, spectators, and other tribunal personnel. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's departure from the expected demeanor is no justification for similar dereliction by a lawyer. A lawyer can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics. CROSS REFERENCES: Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 3.3 Candor Toward the Tribunal Rule 3.4 Fairness to Opposing Party and Counsel Rule 3.6 Tribunal Publicity [Modified Title] adverse administrative or disciplinary proceedings, shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter or an official review process thereof. An extraju-dicial statement ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter (including before a military tribunal or commission), or any other proceeding that could result in incarceration, discharge from the Army, or other adverse personnel action, and that statement relates to: witness, or the identity of a victim or witness, or the expected testimony of a party, suspect, victim, or witness; statement given by an accused or suspect or that person's refusal or failure to make a statement; nation or test, or the identity or nature of physical evidence expected to be presented; in incarceration, discharge from the Army, or other adverse personnel action; and would, if disclosed, create a substantial risk of prejudicing an impartial proceeding; the charge is merely an accusation and that the accused is presumed innocent until and unless proven guilty; or This does not preclude the lawyer from commenting on such matters in a representational capacity. of a matter, may state without elaboration: regulation, or policy, the identity of the persons involved; offense or claim or defense involved and, except when prohibited by law, regulation, or policy, the identity of the persons involved; the likelihood of substantial harm to an individual or to the public interest; and (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time, and place of apprehension; and (iv) the identity of investigating and apprehending officers or agencies and the length of the investigation. lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). governed by such statutes as the Freedom of Information Act and the Privacy Act, in addition to those governing protection of national defense information. In addition, other laws and regulations may further restrict the information that can be released or the source from which it is to be released (for example, regulations of the Department of Defense, the Department of the Army, The Judge Advocate General of the Army, the U.S. Army Corps of Engineers, and the U.S. Army Materiel Command). COMMENT: of free expression. Preserving the right to a fair trial or proceeding necessarily entails some curtailment of the infor-mation that may be disseminated about a party prior to trial, particularly where trial by jury or members is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Further-more, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy. relations and mental disability, and perhaps other types of litigation and proceedings. Rule 3.4(c) requires compliance with such Rules. should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the Rule applies only to lawyers who are, or who have been, involved in the investigation or litigation, and their associates in a firm or government agency, including the Department of the Army. are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter (including before a military tribunal or commission), or any other proceeding that could result in incarceration, discharge from the Army, or other adverse personnel action. Paragraph (a) identifies a non-exclusive list of subjects that presumptively result in material prejudice and must be considered specifically prohibited absent unique or compelling circumstances. These subjects relate to: witness, or the identity of a victim or witness, or the expected testimony of a party, suspect, victim, or witness; personnel action, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by an accused or suspect or that person's refusal or failure to make a statement; nation or test, or the identity or nature of physical evidence expected to be presented; in incarceration, discharge from the Army, or other adverse personnel action; and that would, if disclosed, create a substantial risk of prejudicing an impartial trial or proceeding; the charge is merely an accusation and that the accused is presumed innocent until and unless proven guilty; or This does not preclude the lawyer from commenting on such matters in a representational capacity. the credibility, reputation, motives, or character of Department of Defense personnel by a lawyer properly acting in a representational capacity, for example, before an administrative hearing where such matters are relevant. members and military commission trials will be most sensitive to extrajudicial speech. Civil trials may be less sensi-tive. Administrative board hearings and arbitration proceedings may be even less affected. This Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding. ordinarily be considered to present a substantial likelihood of material prejudice, and should not, in most instances, be considered prohibited by the general prohibition of paragraph (a). about criminal proceedings. also by Federal statutes and regulations. Army members must comply with applicable laws, regulations, and organi-zational policy in making public statements of any kind. Public statements include comments made through social media. Although not a party, Special Victim Counsel must comply with this Rule; based on their position, any extra-judicial statements they make could prejudice a proceeding. Prior to releasing any information, an Army lawyer should consult the appropriate statute, directive, regulation, or policy guideline. CROSS REFERENCES: Rule 1.6 Confidentiality of Information Rule 3.4 Fairness to Opposing Party and Counsel Rule 3.5 Impartiality and Decorum of the Tribunal Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 3.7 Lawyer as Witness witness unless precluded from doing so by Rule 1.7 or Rule 1.9. COMMENT: involve a conflict of interest between the lawyer and client. Advocate-Witness Rule advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate–witness should be taken as proof or as an analysis of the proof. witness except in those circumstances specified in paragraphs (a)(1) through (a)(3). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony. the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The conflict of interest principles stated in Rules 1.7, 1.9, and 1.10 have no application to this aspect of the problem. in the lawyer’s firm will testify as a necessary witness, paragraph (b) permits the lawyer to do so except in situations involving a conflict of interest. Conflict of Interest witness, the lawyer must also consider that the dual role may give rise to a conflict of interest that will require com-pliance with Rules 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer, the representation involves a conflict of interest that requires compliance with Rule 1.7. This would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and witness because the lawyer’s disqualification would work a substantial hardship on the client. Similarly, a lawyer who might be permitted to simultaneously serve as an advocate and a witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the respon-sibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure the client’s informed consent, confirmed in writing. In some cases, the lawyer will be precluded from seeking the client’s consent. See Rule 1.7. See Rule 1.0(c) for the definition of “confirmed in writing” and Rule 1.0(h) for the definition of “informed consent.” the lawyer is associated in a firm is precluded from doing so by paragraph (a). If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from representing the client in the matter, other lawyers in the firm will be precluded from representing the client by Rule 1.10 unless the client gives informed consent under the condi-tions stated in Rule 1.7. CROSS REFERENCES: Rule 1.0 (c) “Confirmed in Writing” Rule 1.0 (h) “Informed Consent” Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.9 Duties to Former Clients Rule 3.4 Fairness to Opposing Party and Counsel Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel [Modified Title] [Modified] A Trial Counsel in a criminal case shall: cause be withdrawn; counsel and has been given reasonable opportunity to obtain counsel; tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the Trial Counsel, except when the Trial Counsel is relieved of this responsibility by a protective order or regulation; Counsel’s actions and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the Trial Counsel in a criminal case from making an extrajudicial statement that the Trial Counsel would be prohibited from making under Rule 3.6 or this Rule. mation creating a reasonable likelihood that a convicted accused did not commit an offense of which the accused was convicted at court-martial, the Trial Counsel or other Army lawyer shall process that evidence as follows: through counsel and make reasonable efforts to cause an investigation to determine whether the evidence substantially affects any finding of guilty or the sentence. (ii) Any other Army lawyer who learns of such evidence or information shall promptly disclose that evidence to the Staff Judge Advocate of the convening authority who referred the case to trial. The Staff Judge Advocate will then ensure such evidence is processed in accordance with subparagraph (g)(1)(i) above. information shall promptly notify the Clerk of Court for the U.S. Army Court of Criminal Appeals. If the case in pending review under Article 66, Uniform Code of Military Justice, the Clerk of Court shall forward the notice to the appellate defense counsel of record or, if none has been assigned, the Chief, Defense Appellate Division, U.S. Army Legal Services Agency. If the case is pending review under Article 69, Uniform Code of Military Justice, the Clerk of Court shall forward the notice to the Criminal Law Division in the Office of The Judge Advocate General. inal Law Division in the Office of The Judge Advocate General. an accused was convicted of an offense that the accused did not commit, the Trial Counsel or other Army lawyer shall seek to remedy the conviction by disclosing the evidence to the appropriate court or authority per paragraph (g). COMMENT: 38(a), Uniform Code of Military Justice; see also Rule for Courts-Martial 103(16), 405(d)(3)(A), and 502(d)(5). Ac-cordingly, a Trial Counsel has the responsibility of administering justice and is not simply an advocate. This respon-sibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Paragraph (a) recognizes that the Trial Counsel does not have all the authority vested in modern civilian prosecutors. The authority to convene courts-martial, and to refer and withdraw specific charges, is vested in convening authorities. Trial Counsel may have the duty, in certain circumstances, to bring to the court’s attention any charge that lacks sufficient evidence to support a conviction. See United States v. Howe, 37 M.J. 1062 (NMCMR 1993). Such action should be undertaken only after consultation with a supervisory attorney and the convening authority. See also Rule 3.3(d) (governing ex parte proceedings). Applicable law may require other measures by the Trial Counsel. Knowing disregard of those obligations or a systematic abuse of prosecutorial discre-tion could constitute a violation of Rule 8.4. the lawful questioning of a suspect who has knowingly waived the rights to counsel and to remain silent. tribunal if disclosure of information to the defense could result in substantial harm to an individual or organization or to the public interest. This exception also recognizes that applicable statutes and regulations may proscribe the dis-closure of certain information without proper authorization. prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a Trial Counsel’s extrajudicial state-ment can create the additional problem of increasing public condemnation of the accused. A Trial Counsel can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of increas-ing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements that a Trial Counsel may make that comply with Rule 3.6. lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (f) reminds the Trial Counsel of the importance of these obligations in connection with the unique dangers of improper extrajudicial state-ments in a criminal case. In addition, paragraph (f) requires a Trial Counsel to exercise reasonable care to prevent persons assisting or associated with the Trial Counsel from making improper extrajudicial statements, even when such persons are not under the direct supervision of the Trial Counsel. Ordinarily, the reasonable care standard will be satisfied if the Trial Counsel issues the appropriate cautions to law enforcement personnel and other relevant individ-uals. A Trial Counsel may comply with paragraph (f) in a number of ways. These include personally informing others of the lawyer's obligations under Rule 3.6, conducting training of law enforcement personnel, and appropriately su-pervising the activities of personnel assisting the Trial Counsel. courts in analyzing issues concerning trial counsel conduct. To the extent consistent with these Rules, the ABA standards may be used to guide Trial Counsel in the prosecution of criminal cases. See United States v. Howe, 37 M.J. 1062 (NMCMR 1993); United States v. Dancy, 38 M.J. 1 (CMA 1993); United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States v. Meek, 44 M.J. 1 (CMA 1996). paragraphs should apply not only to Trial Counsel, but also to other Army counsel (lawyers) (for example, Chiefs of Military Justice, Staff Judge Advocates and their assistants or deputies, and Legal Assistance lawyers). hood that an accused did not commit an offense of which the accused was convicted at court-martial, paragraph (g) requires prompt disclosure by the Trial Counsel and other Army lawyers to different persons or authorities, depending on the status of the case. For the purposes of this Rule, “new evidence” is defined as evidence discovered after the trial. Any Trial Counsel who learns of such evidence or information after final adjournment but before convening authority initial action is required to promptly disclose that evidence to the accused through counsel and make reason-able efforts to cause an investigation to determine whether the evidence substantially affects any finding of guilty or the sentence. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented accused must be made through the accused’s counsel. Any other Army lawyer who learns of such evidence or information after final ad-journment but before convening authority initial action is required to promptly disclose that evidence to the Staff Judge Advocate of the convening authority who referred the case to trial. The Staff Judge Advocate will then ensure such evidence is processed in accordance with subparagraph (g)(1)(i). Any Army lawyer who learns of such evidence or information after convening authority initial action but before final action is required to promptly notify the Clerk of Court for the U.S. Army Court of Criminal Appeals. If the case in pending review under Article 66, Uniform Code of Military Justice, the Clerk of Court is required to forward the notice to the appellate defense counsel of record or, if none has been assigned, the Chief, Defense Appellate Division, U.S. Army Legal Services Agency. If the case is pending review under Article 69, Uniform Code of Military Justice, the Clerk of Court is required to forward the notice to the Criminal Law Division in the Office of The Judge Advocate General. Any Army lawyer who learns of such evidence or information after final action is required to promptly notify the Criminal Law Division in the Office of The Judge Advocate General. the accused was convicted of an offense that the accused did not commit, the Trial Counsel or other Army lawyer must seek to remedy the conviction by disclosing the evidence to the appropriate court or authority per paragraph (g). not of such nature as to trigger the obligations of paragraphs (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule. CROSS REFERENCES: Rule 1.0 (o) “Reasonable” Rule 1.0 (t) “Substantial” Rule 1.0 (w) “Tribunal” Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees Rule 3.1 Meritorious Claims and Contentions Rule 3.3 Candor Toward the Tribunal Rule 3.4 Fairness To Opposing Party and Counsel Rule 3.5 Impartiality and Decorum of the Tribunal Rule 3.6 Tribunal Publicity Rule 3.9 Advocate in Nonadjudicative Proceedings Rule 4.2 Communication with Person Represented by Counsel Rule 4.3 Dealing with Unrepresented Person Rule 4.4 Respect for Rights of Third Persons Rule 5.4 Professional Independence of a Lawyer Rule 8.4 Misconduct Rule 3.9 Advocate in Nonadjudicative Proceedings A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. COMMENT: acting in a rule-making or policy–making capacity, lawyers present facts, formulate issues, and advance argument in the matters under consideration. The decision-making body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure. See Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. ments of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. How-ever, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts. governmental agency or a legislative body to which the lawyer or the lawyer’s client is presenting evidence or argu-ment. It does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege or the client’s compliance with generally applicable reporting requirements, such as the filing of income tax returns. Nor does it apply to the representation of a client in connection with an investigation or examination of the client’s affairs conducted by government investiga-tors or examiners. Representation in such matters is governed by Rules 4.1 through 4.4. CROSS REFERENCES: Rule 1.1 Competence Rule 1.6 Confidentiality of Information Rule 3.3 Candor Toward the Tribunal Rule 3.4 Fairness to Opposing Party and Counsel Rule 3.5 Impartiality and Decorum of the Tribunal Rule 4.1 Truthfulness in Statements to Others Rule 4.4 Respect for Rights of Third Persons Rule 5.4 Professional Independence of a Lawyer 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: client, unless disclosure is prohibited by Rule 1.6. COMMENT: Misrepresentation duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act, or by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentation by a lawyer other than in the course of representing a client, see Rule 8.4. Statements of Fact on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undis-closed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation. Crime or Fraud by Client is criminal or fraudulent. Paragraph (b) of this Rule (Rule 4.1) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation, or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing the information, then under paragraph (b) of this Rule the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6. CROSS REFERENCES: Rule 1.0 (f) “Fraudulent” Rule 1.0 (j) “Knowingly” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.6 Confidentiality of Information Rule 3.3 Candor Toward the Tribunal Rule 3.4 Fairness to Opposing Party and Counsel Rule 4.1 Truthfulness in Statements to Others Rule 8.4 Misconduct Rule 4.2 Communication with Person Represented by Counsel 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 lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. COMMENT: represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relat-ing to the representation. which the communication relates. immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule. concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. agency to speak with government officials about the matter. The “authorized by law” exception to this Rule is also satisfied by a constitutional provision, statute, or court rule, having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel, such as court rules providing for service of process on a party, or a statute authorizing a government agency to inspect certain regulated premises. Directives issued by an agency can qualify as “law” for the purposes of this Rule when embodied in formal regulations that have been properly promulgated pursuant to statutory or constitutional authority that contemplates regulation of the character in question. cising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investiga-tive agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, an Army lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insuffi-cient to establish that the communication is permissible under this Rule. the organization (that is, an officer, employee, or member of the organization) who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4. with the commanding officer of another party to the matter. For example, a legal assistance lawyer representing the spouse of a Soldier may write to the commanding officer of the Soldier-sponsor concerning a disputed matter of financial support to the spouse. knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(j). Such an inference may arise in circumstances where there is substantial reason to believe that the person with whom communication is sought is represented in the matter to be discussed. Thus, a lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious. matter, the lawyer’s communications are subject to Rule 4.3. CROSS REFERENCES: Rule 1.0 (j) “Knowingly,” “Known,” or “Knows” Rule 3.4 Fairness to Opposing Party and Counsel Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 4.1 Truthfulness in Statements to Others Rule 4.3 Dealing with Unrepresented Person Rule 4.4 Respect for Rights of Third Persons Rule 8.4 Misconduct Rule 4.3 Dealing with Unrepresented Person In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misun-derstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. COMMENT: lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer’s client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. For misunderstandings that some-times arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(f). those of the lawyer’s client and those in which the person’s interests are not in conflict with the client’s. In the former situation, the possibility that the lawyer will compromise the unrepresented person’s interests is so great that the Rule prohibits the giving of any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature, and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations. CROSS REFERENCES: Rule 1.0 (j) “Knows” Rule 1.0 (o) “Reasonable” Rule 1.0 (q) “Reasonably should know” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.13 Department of the Army as Client Rule 3.4 Fairness to Opposing Party and Counsel Rule 4.1 Truthfulness in Statement to Others Rule 4.4 Respect for Rights of Third Persons Rule 4.4 Respect for Rights of Third Persons delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. yer’s client and knows or reasonably should know that the document or electronically stored information was inad-vertently sent shall promptly notify the sender. COMMENT: responsibility does not imply that a lawyer may disregard the rights of third persons. The duty of a lawyer to represent the client with zeal does not militate against the lawyer’s concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship. mistakenly sent or produced by opposing parties or their lawyers. A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inad-vertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take pro-tective measures. Whether the lawyer is required to take additional steps, such as returning the document or deleting electronically stored information, is a matter beyond the scope of these Rules, as is the question of whether the privi-leged status of a document or electronically stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. For purposes of this Rule, “document or electronically stored information” includes, in addition to paper documents, email, and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving law-yer. when the lawyer learns before receiving it that it was inadvertently sent. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4. CROSS REFERENCES: Rule 1.0 (j) “Knows” Rule 1.0 (o) “Reasonable” Rule 1.0 (q) “Reasonably should know” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.4 Communication Rule 3.2 Expediting Litigation Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 4.1 Truthfulness in Statements to Others Rule 4.2 Communication with Person Represented by Counsel Rule 4.3 Dealing with Unrepresented Person LEGAL OFFICES Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers [Modified Title] Army Materiel Command, and the Chief Counsel, Army Corps of Engineers, are the Senior Counsels in the Army for purposes of these Rules of Professional Conduct. The Senior Counsels, and the civilian and military supervisory lawyers under their respective legal technical supervision, shall make reasonable efforts to ensure that Army legal offices under their legal technical supervision have in effect measures giving reasonable assurance that all lawyers in such respective offices conform to the Rules of Professional Conduct. This requirement also applies to Army lawyers who supervise the professional work of a legal office in a joint or unified command. other lawyer conforms to the Rules of Professional Conduct. when its consequences can be avoided or mitigated but fails to take reasonable remedial action. lawyer is properly trained and is competent to perform the duties to which a subordinate lawyer is assigned. COMMENT: Advocate General’s specific authority under Article 6, Uniform Code of Military Justice, and Rule for Courts-Martial 109. work of a legal office or legal organization (such as the Army Trial Defense Service). Paragraph (a) recognizes the responsibilities of the Senior Counsel and supervisory lawyers to implement and ultimately enforce the Rules of Pro-fessional Conduct. See Rule 1.0(s) for the definition of Senior Counsel. Paragraph (a) requires lawyers with super-visory authority over the professional work of a legal office or legal organization to make reasonable efforts to estab-lish internal policies and procedures designed to provide reasonable assurance that all lawyers in the legal office or legal organization, as appropriate, 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, and ensure that inexperienced lawyers are properly supervised. requires all lawyers who directly supervise other lawyers to take reasonable measures to ensure that such subordinates conform their conduct to these Rules. The measures required to fulfill the responsibility prescribed in paragraph (b) can depend on the office's structure and the nature of its practice. In a small office of experienced lawyers, informal supervision and periodic review of a subordinate lawyer’s legal work ordinarily might be sufficient. In a large office, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures may be neces-sary. Some offices, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a senior lawyer. See Rules 1.13 and 5.2. Offices, regardless of size, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of an office can influence the conduct of all its members, and a lawyer having authority over the work of another may not assume that the subordinate lawyer will inevitably conform to the Rules. example, the chief of administrative law in an office may be the supervisory lawyer for both an administrative law lawyer and a legal assistance lawyer. Both subordinate lawyers may seek advice concerning an appeal to an adverse action handled by the administrative law lawyer and now being challenged by the client of the legal assistance lawyer. In another example, the Senior Trial Defense Counsel may be the supervisory lawyer for two Trial defense Counsel representing clients with adverse interests. In both situations, the supervisory lawyer should not advise both subordi-nate lawyers. Depending on the circumstances, the supervisory lawyer may advise one subordinate lawyer and refer the other subordinate lawyer to another supervisory lawyer in the office, or the supervisory lawyer may refer both subordinate lawyers to separate supervisory lawyers in the office. a chief of legal assistance ratifies the unauthorized disclosure of a client confidence by a subordinate legal assistance lawyer when the subordinate informs the chief of legal assistance of his intention to disclose the confidence and the chief consents to the subordinate's doing so. legal work by another lawyer. Whether a lawyer has supervisory authority in particular circumstances is a question of fact. Appropriate remedial action by a lawyer who has direct supervisory authority over another lawyer would depend on the immediacy of the supervisory lawyer’s involvement and the seriousness of the misconduct. Apart from the responsibility that may be incurred for ordering or ratifying another lawyer's conduct under paragraph (c)(1), the supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervisory 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. supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction, ratifica-tion, or knowledge of the violation. conduct of subordinate lawyers. 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. each lawyer to whom these Rules apply to abide by the Rules of Professional Conduct. CROSS REFERENCES: Rule 1.0 (s) “Senior Counsel” Rule 1.0 (u) “Supervisory Lawyer” Rule 1.0 (v) “The Judge Advocate General” Rule 1.13 Department of the Army as Client Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 5.3 Responsibilities Regarding Nonlawyer Assistants Rule 5.4 Professional Independence of a Lawyer Rule 8.3 Reporting Professional Misconduct Rule 8.4 Misconduct Rule 5.2 Responsibilities of a Subordinate Lawyer another person. supervisory lawyer's reasonable resolution of an arguable question of professional duty. COMMENT: 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 motion 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. 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 resolu-tion is subsequently challenged. CROSS REFERENCES: Rule 1.0 (u) “Supervisory Lawyer” Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 5.4 Professional Independence of a Lawyer Rule 8.4 Misconduct Rule 5.3 Responsibilities Regarding Nonlawyer Assistants [Modified Title] [Modified] With respect to a nonlawyer acting under the authority, supervision, or direction of a lawyer: has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer. This requirement also applies to an Army lawyer who is the senior supervisory lawyer in a legal office in a joint or unified command; person's conduct is compatible with the professional obligations of the lawyer. This requirement also applies to an Army lawyer in a legal office in a joint or unified command; and Conduct if engaged in by a lawyer if: its consequences can be avoided or mitigated but fails to take reasonable remedial action. COMMENT: as the Army Trial Defense Service) to make reasonable efforts to ensure that the office has in effect measures giving reasonable assurance that nonlawyers in the office and nonlawyers outside the legal office who work on legal office matters act in a way compatible with the professional obligations of the lawyer. See Comment (2) to Rule 5.1 (re-sponsibilities with respect to lawyers within a legal office). Paragraph (b) applies to lawyers who have supervisory authority over such nonlawyers in a legal office. Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such nonlawyers within a legal office that would be a violation of the Rules of Profes-sional Conduct if engaged in by a lawyer. student interns, and others. Such assistants act for the lawyer in rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their per-formance, particularly regarding the obligation not to disclose information relating to representation 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. CROSS REFERENCES: Rule 1.0 (u) “Supervisory Lawyer” Rule 1.6 Confidentiality of Information Rule 3.8 Special Responsibilities of a Trial Counsel and Other Army Counsel Rule 4.1 Truthfulness in Statements to Others Rule 4.4 Respect for Rights of Third Persons Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 5.5 Unauthorized Practice of Law Rule 5.4 Professional Independence of a Lawyer authority of superiors, a Judge Advocate detailed or assigned to represent an individual member or employee of the Department of the Army is expected to exercise unfettered loyalty and professional independence during the repre-sentation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client. of superiors, a civilian lawyer detailed or assigned to represent an individual member or employee of the Department of the Army is expected to exercise unfettered loyalty and professional independence during the representation con-sistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client. cate General is charged with supervising the provision of legal services shall not permit a person who recommends, employs, or pays that lawyer to render legal services for another person to direct or regulate or interfere in any way with that lawyer’s professional judgment in rendering such legal services. standing alone, be a basis for an adverse evaluation or other prejudicial action. COMMENT: General employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. As stated in para-graph (c) such arrangements should not interfere with the lawyer's professional judgment. fessional judgment in rendering legal services to another. See Rule 1.8(f) and its Comment (11) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judg-ment and the client gives informed consent). Judge Advocates orders of superior officers. This Rule also recognizes the similar status of civilian Army lawyers. Nevertheless, the practice of law requires the exercise of judgment solely for the benefit of the client and free of compromising influ-ences and loyalties. Thus, when a Judge Advocate or civilian Army lawyer is assigned to represent an individual client, neither the lawyer's personal interests, the interests of other clients, nor the interests of third persons should affect loyalty to the individual client. judgment. Each situation must be evaluated by the facts and circumstances, giving due consideration to the subordi-nate's training, experience, and skill. A lawyer subjected to outside pressures should make full disclosure of them to his or her supervisory lawyer(s) and to the client. If the lawyer or the client believes that the effectiveness of the representation has been or will be impaired thereby, the lawyer should take proper steps to withdraw from represen-tation of the client. R.C.M. 104, MCM. CROSS REFERENCES: Preamble Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 1.3 Diligence Rule 1.7 Conflict of Interest: Current Clients Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 1.13 Department of the Army as Client Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 5.5 Unauthorized Practice of Law [Modified Title] lation of the legal profession in that jurisdiction; or practice of law; or authorization from the appropriate Senior Counsel (that is, the General Counsel of the Army, The Judge Advocate General of the Army, the Command Counsel, Army Materiel Command, or the Chief Counsel, Army Corps of Engi-neers). governing the nonlawyer assistant’s responsibilities under these Rules and this regulation. COMMENT: admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person. For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction. the practice of law defies mechanistic formulation, although it encompasses not only court appearances but also ser-vices rendered out of court and includes the giving of any advice or rendering any service requiring the use of legal knowledge. For the purpose of these Rules of Professional Conduct, the practice of law would specifically include, but not be limited to, the providing of any advice, opinion, document, or instrument that construes or interprets law, legal authority, or legal rights, or is legal in nature (such as a contract, will, lease, power of attorney, and so forth, or any advice or opinion that purports to render a legal evaluation of such). Limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the services of nonlawyer assistants and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3. a Federal function and not subject to regulation by the States. Thus, a lawyer may perform legal assistance duties even though the lawyer is not licensed to practice in the jurisdiction within which the lawyer's duty station is located. Likewise, this Rule does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, social workers, accountants, and persons employed in Government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se (for himself; in his own behalf) or nonlawyers authorized by law or regulation to appear and represent themselves or others in military proceedings. advice, counsel, assistance, or representation, with or without compensation, that is not performed pursuant or incident to duties as an Army lawyer, military or civilian (including while on transition/terminal leave). Occasional uncom-pensated assistance rendered to relatives or friends is excluded from this definition (unless otherwise limited by statute or regulation). Teaching a law course as part of a program of education or training offered by an institution of higher education is not practicing law for purposes of these Rules. Department of the Army, and he or she is expected to ensure that representation of such client is free from conflicts of interest and otherwise conforms to the requirements of these Rules and other regulations concerning the provision of legal services within the Department of the Army. The practice of law outside the Department of the Army, there-fore, must be carefully monitored. Army lawyers who seek to engage in the practice of law outside the Army must first obtain permission from the appropriate Senior Counsel (that is, the General Counsel of the Army, The Judge Advocate General of the Army, the Command Counsel, Army Materiel Command, or the Chief Counsel, Army Corps of Engineers, or their respective designees). This requirement does not apply to Reserve Component members of the Judge Advocate General’s Corps unless they are ordered to active duty for more than 30 consecutive days. ized by appropriate authority, provided they do not engage in the unauthorized practice of law. A nonlawyer assistant engages in the unauthorized practice of law if he or she does not hold a current law license or, if he or she holds such a current law license, has not been authorized by the appropriate Senior Counsel to practice law in the Department of the Army. professional conduct is the protection of the public. If a client is misled to believe that a nonlawyer assistant in a legal office is a lawyer, the client will expect the nonlawyer assistant to be able to take certain actions to advance his or her case that the nonlawyer assistant may either be insufficiently knowledgeable to undertake or expressly prohibited from taking. Such misunderstandings, whether occurring innocently or as the result of deliberate deception, may result in harm to the client and damage to the reputation of the legal profession. In order to prevent such misunderstandings from occurring, the nonlawyer assistant should always disclose the fact that he or she is not a lawyer during initial contact with clients or potential clients. CROSS REFERENCES: Rule 1.0 (s) “Senior Counsel” Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 5.3 Responsibilities Regarding Nonlawyer Assistants Rule 8.5 Jurisdiction Rule 5.6 Restrictions on Right to Practice [Omitted] Rule 5.7 Responsibilities Regarding Non-Law and Law-Related Duties [Modified Title] [Substituted] An Army lawyer, military or civilian, shall also be subject to these Rules of Professional Conduct with respect to non-law but official, and law-related but official, duties performed as an Army lawyer. COMMENT: This Rule is derived, but different, from ABA Model Rule 5.7, Responsibilities Regarding Law-Related Services. The practice of law in the Department of the Army is similar (but not identical) to a corporate in-house practice of law in that a lawyer performs a combination of non-law, law-related, and purely legal activities for a single employer. Examples of non-law official duties include an Army lawyer, military or civilian, serving as an Executive Officer, Chief of Staff, aide-de-camp, or plans officer. Examples of law-related official duties include an Army lawyer, mili-tary or civilian, serving as an Article 32 investigating officer or other type of investigating or inquiry officer, or a law instructor/trainer. The non-law and law-related official duties performed by an Army lawyer, military or civilian, meet the definition of “law-related services” found in paragraph (b) of ABA Model Rule 5.7 because every Army lawyer’s employment by the Army as an Army lawyer is predicated on being qualified (or certified, as appropriate) to practice law in the Army by one of the four Senior Counsels. Thus, Army lawyers are always accountable, as Army lawyers, to their respective Senior Counsel as the qualifying (or certifying) authority. These non-law and law-related official duties are commingled within Army law practice and are not otherwise independent, separate, or distinguish-able. CROSS REFERENCES: Rule 1.0 (a) “Army Lawyer” PUBLIC SERVICE Rule 6.1 Voluntary Pro Bono Publico [Omitted] Rule 6.2 Accepting Appointments [Omitted] Rule 6.3 Membership in Legal Services Organization [Omitted] Rule 6.4 Law Reform Activities Affecting Client Interests [Omitted] Rule 6.5 Nonprofit and Court-Annexed Limited Legal Services Programs [Omitted] INFORMATION ABOUT LEGAL SERVICES Rule 7.1 Communications Concerning a Lawyer's Services A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement not materially misleading when considered as a whole. cations; and regulations that apply to Army lawyers, which may impose more stringent standards depending on the circumstances. COMMENT: lawyer's services, statements about them must be truthful. omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public. provided under this Rule only if such communications comply with the rules of the lawyer’s state and other licensing authorities regarding such communications, and only if the lawyer adheres strictly to the Department of Defense Joint Ethics Regulation and other statutes and ethics regulations that apply to Army lawyers, which may impose more stringent standards depending on the circumstances. the purposes of these Rules. agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. CROSS REFERENCES: Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 4.1 Truthfulness in Statement to Others Rule 7.4 Communication of Fields of Practice and Specialization Rule 8.4 Misconduct Rule 7.2 Advertising [Omitted] Rule 7.3 Solicitation of Clients [Omitted] Rule 7.4 Communication of Fields of Practice and Specialization designation “Patent Attorney” or a substantially similar designation. stantially similar designation. the lawyer has other certifications and specialties if such communication is consistent with the Rules of the lawyer’s state or other licensing authorities. Such communication could include the fact that the lawyer: 27(b), Uniform Code of Military Justice, as competent to perform duties as a Trial Counsel (prosecutor) or Defense Counsel for a General Court-Martial. that identifies the lawyer as having specialized expertise and proficiency in certain core legal disciplines in accordance with Department of the Army policy. ensure that such communication is in compliance not only with the rules of the lawyer’s state or other licensing au-thorities regarding such communications but also with the Department of Defense Joint Ethics Regulation and other statutes and ethics regulations that apply to Army lawyers, any of which may impose more stringent standards de-pending on the circumstances. COMMENT: services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate. Any communications under this Rule are subject to the “false or misleading” standard applied in Rule 7.1 to communications concerning a lawyer’s services. lawyers practicing before the Office. Paragraph (c) recognizes that designation of Admiralty practice has a long historical tradition associated with maritime commerce and the federal courts. fact that the lawyer has other certifications and specialties so long as such communication is consistent with the Rules of the lawyer’s state or other licensing authorities. Such communication could include the fact that the lawyer has been certified by The Judge Advocate General of the United States Army under the provisions of Article 27(b), Uni-form Code of Military Justice, as competent to perform duties as a Trial Counsel (prosecutor) or Defense Counsel for a General Court-Martial (see also 10 USCUSCUnited States Code 827(b)), and the fact that the lawyer has been awarded a PDPC and/or ASI that identifies the lawyer as having specialized expertise and proficiency in certain core legal disciplines in accordance with Department of the Army policy. Any statement that creates a false impression about certification or expertise remains prohibited. ensure that such communication is in compliance with the rules of the lawyer’s state or other licensing authorities regarding such communications, and also in compliance with the Department of Defense Joint Ethics Regulation and other statutes and ethics regulations that apply to Army lawyers, any of which may impose more stringent standards depending on the circumstances. CROSS REFERENCES: Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer Rule 4.1 Truthfulness in Statement to Others Rule 7.1 Communications Concerning a Lawyer's Services Rule 7.5 Army Letterhead [Modified Title] [Substituted] An Army lawyer shall not use official Army letterhead when communicating in a private capacity. COMMENT: the Department of Defense Joint Ethics Regulation. or serving in a joint or unified command within the Department of Defense or the Department of Defense itself, or another government agency, whether employed or specially retained by the government, with regard to that organiza-tion’s official letterhead. authorized by 5 CFRCFRCode of Federal Regulations 2635.702(b). CROSS REFERENCES: Rule 7.1 Communications Concerning a Lawyer's Services Rule 7.6 Political Contributions to Obtain Government Legal Engagements or Appointments by Judges [Omitted] MAINTAINING THE INTEGRITY OF THE PROFESSION Rule 8.1 Bar Admission and Disciplinary Matters [Modified] An applicant or a lawyer, in connection with any application for bar admission, employment with the Department of the Army or any other part of the Federal government as a lawyer, appointment as a Judge Advocate, assignment to the Judge Advocate General’s Corps, certification as a Judge Advocate by The Judge Advocate General or his or her designee, qualification as a civilian lawyer by the appropriate Senior Counsel (that is, the General Counsel of the Army, The Judge Advocate General, the Command Counsel of the U. S. Army Materiel Command, and the Chief Counsel of the U. S. Army Corps of Engineers, or their respective designees), or in connection with any disci-plinary matter, shall not: 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. COMMENT: Department of the Army or any other part of the Federal government as a lawyer, appointment as a Judge Advocate, assignment to the Judge Advocate General’s Corps, certification as a Judge Advocate by The Judge Advocate General or his or her designee, qualification as a civilian lawyer by the appropriate Senior Counsel (that is, the General Counsel of the Army, The Judge Advocate General, the Command Counsel of the U. S. Army Materiel Command, and the Chief Counsel of the U. S. Army Corps of Engineers, or their respective designees), or in connection with any disci-plinary matter. Hence, if a person makes a material false statement in connection with an application for admission, employment as a lawyer, or certification (for example, misstatement by a civilian lawyer before a military judge regarding qualifications under Rule for Courts-Martial 502), it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer's own admission or discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions, certification, or disciplinary authority of which the person involved becomes aware. Uniform Code of Military Justice. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule. subject of a disciplinary inquiry or proceeding, is governed by the Rules applicable to the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3. CROSS REFERENCES: Rule 1.6 Confidentiality of Information Rule 8.3 Reporting Professional Misconduct Rule 8.4 Misconduct Rule 8.5 Jurisdiction Rule 8.2 Judicial and Legal Officials its truth or falsity concerning the qualifications or integrity of a judge, investigating officer, hearing officer, adjudica-tory officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office. COMMENT: for or already performing legal duties. Expressing honest and candid opinions on such matters contributes to improv-ing the administration of justice. Conversely, false statements by a lawyer can unfairly undermine confidence in the administration of justice. efforts to defend judges and courts unjustly criticized. CROSS REFERENCES: Rule 1.0 (j) ”Knows” Rule 8.3 Reporting Professional Misconduct Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall report such a violation in accordance with Army Rule 10.1 and implementing regulations or policies promulgated or established by the appropriate Senior Counsel (that is, the General Counsel of the Army, The Judge Advocate General of the Army, the Command Counsel, Army Materiel Command, and the Chief Counsel, Army Corps of Engineers). that raises a substantial question as to the judge's fitness for office shall report such a violation in accordance with Army Rule 10.1 and implementing regulations or policies promulgated or established by the appropriate Senior Coun-sel (that is, the General Counsel of the Army, The Judge Advocate General of the Army, the Command Counsel, Army Materiel Command, and the Chief Counsel, Army Corps of Engineers). fessional conduct to which the lawyer is subject. COMMENT: when they know of a violation of the Rules of Professional Conduct that raises a substantial question as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Lawyers have a similar obligation with respect to judicial misconduct. An apparent isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense. encourage a client to consent to disclosure where such disclosure would not substantially prejudice the client's inter-ests. a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. See Rule 1.0(t) (“Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty im-portance). Any report should be made in accordance with regulations and/or policies promulgated by the appropriate Senior Counsel (that is, the General Counsel of the Army, The Judge Advocate General of the Army, the Command Counsel, Army Materiel Command, and the Chief Counsel, Army Corps of Engineers). Similar considerations apply to the reporting of judicial misconduct. a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship. CROSS REFERENCES: Rule 1.0 (j) “ Knows” Rule 1.0 (t) “Substantial” Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 8.4 Misconduct Rule 8.5 Jurisdiction Rule 10.1 Enforcement Rule 8.4 Misconduct It is professional misconduct for a lawyer to: so through the acts of another; other respects; that violate the Rules of Professional Conduct or other law; or other law. COMMENT: time. All Army lawyers, civilian and military (whether Regular Army, Army National Guard/Army National Guard of the United States, and Army Reserve), are expected to demonstrate model behavior and exemplary integrity at all times. The appropriate Senior Counsel may consider any and all derogatory or beneficial information about the lawyer for purposes of determining the lawyer’s qualification, professional competence, or fitness to practice law in Depart-ment of the Army matters, or to administer professional conduct discipline in accordance with pertinent authorities. knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. trustworthiness, or fitness as a lawyer in other respects.” Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving violence, dishonesty, fraud, breach of trust, serious interference with the administration of justice, and the offense of willful failure to file an income tax return. A pattern of repeated offenses, even ones of minor significance when considered separately, can also indicate indifference to ethical and/or legal obligations. It is not necessary for a lawyer to be convicted of, or even charged with, a crime to violate this Rule. Crimes of a sexual nature violate paragraph (b). Violent crimes, including acts of domestic violence, are among those covered by paragraph (b). Criminal conduct that violates paragraph (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) can also violate paragraph (b) if it reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Other types of criminal acts could reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, depending on the nature of the act and the circumstances of its commission. Examples of criminal acts that could, depending on the facts of the case, violate paragraph (b) are a Judge Advocate who violates the elements of Article 134 (Adultery), Uniform Code of Military Justice; a Judge Ad-vocate who violates the elements of Article 133 (Conduct unbecoming an officer and gentleman); and an Army lawyer (military or civilian) who makes false statements or reckless allegations. linked directly to the practice of law, could, depending on the facts and circumstances of the case, violate paragraph denigrates the legal profession. like the other provisions of Rule 8.4, encompasses conduct outside the practice of law. A lawyer may not mislead or lie to a client. A lawyer can violate paragraph (c) by deceiving an adverse party or opposing counsel. Dishonesty to a lawyer’s own office, colleagues, supervisors, or subordinates may violate paragraph (c). Paragraph (c) also extends to dishonesty in dealings with the world at large. Criminal conduct involving dishonesty, fraud, deceit, or misrepre-sentation that violates paragraph (b) also violates paragraph (c). activity that involves the lawful use of subterfuge or misrepresentation by investigators, does not violate this Rule. Application of this Rule is not limited to conduct connected with proceedings before a tribunal. This Rule can also be applied to a lawyer’s criminal conduct; to conduct that does not involve the representation of a client; to conduct that is abusive or disruptive or that impedes the proper functioning of the legal system; to threats to press criminal charges or to file a disciplinary grievance to gain advantage in a matter; to abusive or uncivil behavior toward opposing counsel, parties, and witnesses; and to failure to comply with court rules and orders. Conduct that violates paragraph agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.” The proscription against implying an ability to use influence improperly extends to lawyers who serve or have served as judges. rules of judicial conduct. tion exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning, or appli-cation of the law also apply to challenges of legal regulation of the practice of law. going beyond those of other citizens. A Judge Advocate's abuse of such commission can suggest an inability to fulfill the professional role of judge advocate and lawyer. This concept has similar application to civilian Army lawyers. CROSS REFERENCES: Rule 1.0 (f) “Fraud” Rule 1.0 (j) “Knowingly” Rule 8.3 Reporting Professional Misconduct Rule 8.5 Jurisdiction Rule 8.5 Jurisdiction [Substituted Title] [Substituted Rule in its Entirety] shall be governed by these Rules of Professional Conduct. A lawyer admitted to practice in this (Department of the Army) jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. cates in the Regular Army, the Army National Guard/Army National Guard of the United States, and the U. S. Army Reserve, regardless of whether serving in a legal billet or performing legal services, and not just when performing duty in a Title 10 or Title 32 status. to all lawyers who practice in Army courts or tribunals and other proceedings governed by the Uniform Code of Military Justice and the Manual for Courts-Martial, including, but not limited to, non-Department of Defense civilian defense counsel with no connection to the Army. regulation, these Rules apply to all non-Department of Defense civilian lawyers representing individuals in any matter for which The Judge Advocate General is charged with supervising the provision of legal services. These matters include, but are not limited to, courts-martial, administrative separation boards or hearings, boards of inquiry, and disability evaluation proceedings. regulation, these Rules apply to all qualified volunteer lawyers who have been certified as legal assistance lawyers by The Judge Advocate General or his/her designee. regulation, these Rules apply to all other lawyers appointed by The Judge Advocate General to serve in billets or to provide legal services normally provided by Army Judge Advocates. This policy applies to officer and enlisted Re-servists or Guardsmen, active duty personnel, and any other personnel who are licensed to practice law by and Federal or State authority but who are not members of the Judge Advocate General’s Corps or Judge Advocate Legal Service or who do not hold the 27A, 270A, or 27D MOSMOSMilitary occupational specialties designation in the Army. Command Counsel, Army Materiel Command, and the Chief Counsel, Army Corps of Engineers, in their capacities as qualifying authorities for the civilian Army lawyers in their respective organizations, these Rules apply to all civil service and contracted Army lawyers who in their official capacity practice law or perform legal, legal-related, or non-law services under the cognizance and supervision of their respective Senior Counsel. Official capacity includes providing legal assistance or other representation or legal counseling as part of a lawyer's official duties even though the client may not be the Department of the Army. This includes civilian lawyers employed by the Department of the Army as executive agent for combatant commands, and for whom one of the four Senior Counsels serves as the Qualifying Authority. of the Army as a part of their duties. inconsistent with their domestic law and professional standards. of the Senior Counsels. support of Army lawyers, as these Rules define the type of ethical conduct that the public and military community have a right to expect from Department of the Army legal personnel. Such nonlawyer legal personnel include, but are not limited to: legal administrators (MOSMOSMilitary occupational specialties 270A), paralegal Soldiers (MOSMOSMilitary occupational specialties 27D), court reporters, legal interns, and civilian support personnel including paralegals, legal secretaries, legal technicians, secretaries, court reporters, and other personnel holding similar positions. for misconduct may be subject to the disciplinary authority of the appropriate Senior Counsel in the Army for the same misconduct if such misconduct also constitutes a violation of these Rules of Professional Conduct. authorities, and may be subject to the disciplinary authority of the appropriate Senior Counsel in the Army and another licensing authority for the same professional misconduct. In the case of a conflict between these Rules and the rules of the lawyer's licensing authority, the lawyer should attempt to resolve the conflict with the assistance of a supervising lawyer. If the conflict is not resolved: Guard/Army National Guard of the United States in the performance of official duties or while in a duty status, but not if the Guard Judge Advocate is in a Title 10 status, in which case the Army Rule will govern. unrelated to the lawyer's official responsibilities. COMMENT: to the disciplinary authority of that jurisdiction. Extension of the disciplinary authority of this Army jurisdiction to other lawyers who provide or offer to provide legal services in this Army jurisdiction is for the protection of the clients in this Army jurisdiction. Reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions help further advance the purposes of this Rule. obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. Additionally, the lawyer’s conduct may involve significant contacts with more than one jurisdiction. they are licensed. While lawyers remain subject to the governing authority of the jurisdiction in which they are li-censed to practice, they are also subject to these Rules. Army as the client or serving an individual as the client as authorized by the Army, these Rules are regarded as superseding any conflicting rules applicable in jurisdictions in which the lawyer may be licensed. However, lawyers practicing in State or Federal civilian court proceedings will abide by the rules adopted by that State or Federal civilian court during the proceedings. applicable, other licensing authorities. This raises the possibility of a conflict in the governing rules. While these Rules may pre-empt State Rules in the event of a conflict, lawyers and their supervising lawyers should avoid such conflicts whenever possible. If a conflict does arise, the lawyer is advised to attempt to resolve the conflict with the assistance of a supervising lawyer. In most cases, the conflict can be resolved by a change of assignment or withdrawal from the matter that gives rise to it. If such assistance is not effective in resolving the conflict, then paragraph (j) of this Rule provides clear guidance. United States lawyers, and retired Army lawyers (acting in their civilian capacity) who seek to provide legal services in any Department of the Army matter, whether practicing in courts, tribunals, or other proceedings conducted pursu-ant to the Manual for Courts-Martial or the Uniform Code of Military Justice, or practicing in other proceedings or programs under the professional supervision of one of the Senior Counsels, may be precluded from such practice of law if, in the opinion of the Senior Counsel concerned (as exercised through these Rules and Army Regulation 27–1) the lawyer has violated any of these Rules of Professional Conduct or the lawyer’s conduct in any venue renders that lawyer unable or unqualified to practice in Department of the Army programs or proceedings. CROSS REFERENCES: Rule 5.1 Responsibilities of Senior Counsel and Supervisory Lawyers Rule 8.3 Reporting Professional Misconduct Rule 10.1 Enforcement INTERPRETATION Rule 9.1 Interpretation [Augmented] sional Conduct Council. The purpose of the Council is to provide uniform interpretation of these Rules of professional Conduct for the Army. The Judge Advocate General of the Army, the Command Counsel of the U. S. Army Materiel Command, and the Chief Counsel of the U. S. Army Corps of Engineers. These Council member duties may be delegated by any of the above named members to a deputy who is either a general officer or member of the Senior Executive Service. call the Council into session and whether to accept a request for an interpretation of these Rules by the Council. The Council shall, at its discretion, issue written opinions interpreting these Rules. Such opinions shall be considered the authoritative Army interpretation of these Rules. In arriving at its opinion in any case in which a Senior Counsel has special expertise in the issue(s) presented, the Council normally will adopt for the Army the opinion of that Senior Counsel, for example, The Judge Advocate General with respect to military justice matters. The Council may, at its discretion, issue advisory opinions. or qualifying authority to assist him or her with respect to questions before the DA Professional Conduct Council. lawyer subject to these Rules, however, may request an opinion from the Council. To do so, the lawyer must submit a complete description of the factual situation that is the subject of contention under the Rules, subject to Rule 1.6 and Rule 8.5(j), a discussion of the relevant law, and the lawyer's opinion as to the correct interpretation. For Army lawyers, the request must be submitted through their legal supervisory chain and the professional responsibility com-mittee established by the lawyer's Senior Counsel. For non-Army lawyers, the Council Chairman may direct that the request for a Council opinion be processed first through the committee of the Senior Counsel under whose qualifying authority or jurisdiction the issue arose or, when appropriate, another Senior Counsel’s committee. considered as disciplinary. The Council's opinions may, however, be used by others invested with disciplinary au-thority as authoritative Army interpretations of these Rules. COMMENT: approve a civilian lawyer’s qualifications. Judge Advocates are directed in their duties by The Judge Advocate Gen-eral of the Army (see 10 USCUSCUnited States Code 3037(c)(2)), and are not restricted to specific positions within an Army organization as are civilian lawyers. Therefore, “jurisdiction” refers only to Judge Advocates. They are under the jurisdiction of The Judge Advocate General no matter where they are assigned, attached, or detailed, to include when they are assigned, attached, or detailed to the offices of the other three Senior Counsels or to another federal government agency. An example of the distinction: The Judge Advocate General has jurisdiction over Army Judge Advocates, but has quali-fying authority (and serves as the Qualifying Authority) over civilian lawyers (excluding Senior Executive Service members) in the Judge Advocate Legal Service. Rule 9.2 [Not Used] ENFORCEMENT Rule 10.1 Enforcement [Augmented] Counsel, Army Corps of Engineers, will: lations of these Rules by lawyers under their qualifying authority or jurisdiction; by any general officer or Senior Executive Service member under their jurisdiction or working in their organization. the Army, or by The Judge Advocate General of the Army, the Command Counsel of the Army Materiel Command, or the Chief Counsel of the Army Corps of Engineers, will be reported to the General Counsel of the Army. may include appointing an individual to conduct an investigation, enlisting the aid of the Inspector General, and re-viewing reports of investigations conducted by others. In the event the General Counsel does conduct an inquiry, he/she will, as a minimum, solicit a written response to the allegations from the lawyer who is the subject of the allegations. lawyers from his/her office, or will advise the Secretary of the Army or the Chief of Staff of the Army of the action that should be taken, if any, with respect to the Senior Counsel who is the subject of the allegations. advise the Secretary of the Army of the alleged violation. COMMENT: discipline of violations of these Rules. Because of the significant differences in the legal work forces under the juris-diction of the four Senior Counsel, it is desirable to have complementary investigatory and disciplinary systems for each work force. or member of the Senior Executive Service. Subparagraph (b)(1) also provides that in the case of the Senior Counsel, other than the General Counsel, the General Counsel of the Army will conduct the inquiry into allegations as he/she deems necessary. This eliminates the potential problem of the Senior Counsel being subject to the investigatory and disciplinary processes and procedures of their own creation and subject to their control. approve a civilian lawyer’s qualifications. Judge Advocates are directed in their duties by The Judge Advocate Gen-eral of the Army (see 10 USCUSCUnited States Code 3037(c)(2)), and are not restricted to specific positions within an Army organization as are civilian lawyers. Therefore, “jurisdiction” refers only to Judge Advocates. They are under the jurisdiction of The Judge Advocate General no matter where they are assigned, attached, or detailed, to include when they are assigned, attached, or detailed to the offices of the other three Senior Counsels or to another federal government agency. An example of the distinction: The Judge Advocate General has jurisdiction over Army Judge Advocates, but has quali-fying authority (and serves as the Qualifying Authority) over civilian lawyers (excluding Senior Executive Service members) in the Judge Advocate Legal Service. Rule 10.2 [Not Used]