THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 81 ]
Amendments to the Pennsylvania Rules of Professional Conduct to Address the Need for Changes in Detection of Conflicts of Interest, Outsourcing, Technology and Client Development, and Technology and Confidentiality
[43 Pa.B. 1997]
[Saturday, April 13, 2013]
Notice of Proposed Rulemaking Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that the Court amend Pennsylvania Rules of Professional Conduct (RPC) 1.6 and 1.17, as set forth in Annex A; RPC's 1.1, 5.3 and 5.5, as set forth in Annex B; RPC's 1.18, 7.1, 7.2, and 7.3, as set forth in Annex C; and RPC's 1.0, 1.1, 1.4, and 4.4, as set forth in Annex D.
In August 2012, the ABA House of Delegates approved changes to the Model Rules of Professional Conduct by adopting resolutions proposed by the ABA Commission on Ethics 20/20. The work of the ABA Commission reflected changes in 21st century technology, lawyer mobility, and the legal marketplace. The amendments proposed in this Notice follow the recommendation of the Pennsylvania Bar Association, whose Legal Ethics and Professional Responsibility Committee (''PBA Ethics Committee'') had issued reports after study of the ABA's approved changes to the Model Rules. The PBA Ethics 20/20 Resolutions are available online at http://www.pabar.org/public/committees/lglethic/resouces.asp. This Notice incorporates the key points outlined in the PBA Ethics Committee Reports and provides explanatory commentary on the proposed changes.
Detection of Conflicts of Interest (see Annex A)
A lawyer exploring the possibility of joining a different firm or organization, or law firms considering a merger, must identify possible conflicts of interest in a manner consistent with a lawyer's duty of confidentiality. The purpose of the proposed changes to RPC 1.6 (Confidentiality of Information) is to provide guidance to the lawyer or law firms, while their effect is to confer limited authority to disclose information to another firm to detect conflicts of interest before the lawyer is hired or the firms merge as long as the limited disclosures do not ''compromise the attorney-client privilege or otherwise prejudice the client.'' The PBA Ethics Committee carefully considered but rejected claims that the proposed changes would jeopardize the client-lawyer relationship and the duty of confidentiality for the mere purpose of business expediency; and that when disclosing confidential information, lawyers should be required to confirm the client's consent in writing or advise the client to seek independent counsel.
New Comment (19) to RPC 1.6 instructs that the disclosure may not take place until ''substantive discussions regarding the new relationship have occurred'' and ''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.'' The Comment provides three examples of when any disclosure is prohibited: a corporate client is seeking advice on a corporate takeover that has not been publicly announced; a person has consulted a lawyer about the possibility of divorce before the person's intentions are known to the person's spouse; and a person has consulted a lawyer about a criminal investigation that has not led to a public charge. Under those circumstances, the lawyer must obtain the client's or former client's ''informed consent,'' which term is defined in RPC 1.0(e).
New Comment (20) to RPC 1.6 permits disclosed information to be used or further disclosed ''only to the extent necessary to detect and resolve conflicts of interest.'' That Comment also explains that new RPC 1.6 does not restrict the use of information acquired by means independent of any disclosure under the Rule and also does not affect the disclosure of information within a law firm when the disclosure is otherwise authorized.
In connection with sharing information with non- lawyers outside the lawyer's own firm, an amendment to Comment (25), as renumbered, refers the reader to new Comments (3) and (4) of RPC 5.3 (Responsibilities Regarding Nonlawyer Assistance), which are discussed in the section on Outsourcing, infra.
Proposed changes to Comment (19) to RPC 1.6 and Comment (4) to RPC 1.17 (Sale of Law Practice) address disclosures in connection with the purchase of a law practice. The latter Comment would emphasize that a client file constitutes ''detailed'' information relating to the representation, and disclosure of the file requires client consent.
Outsourcing (see Annex B)
Although domestic and foreign outsourcing of legal and law-related work is on the increase, the current Rules have not specifically addressed outsourcing. The purpose of the proposed changes to RPC's 1.1, 5.3 and 5.5 is to help lawyers and law firms better understand how ethically to retain outside lawyers.
Proposed new Comments to RPC 1.1 (Competence) identify the factors that a lawyer must consider when retaining lawyers outside the firm to provide assistance in a client matter. Comment (6) provides that the lawyer must ''reasonably believe that the other lawyers' services will contribute to the competent and ethical representation of the client.'' The reasonableness of the decision to retain a lawyer outside the lawyer's own firm will depend upon the circumstances, including the experience of the nonfirm lawyers; the nature of the assigned services; and the ethical rules and ethical environments of the jurisdictions in which the services will be performed, particularly as they relate to confidential information. Comment (7) provides that lawyers from different firms ''ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them.'' Even without inclusion of the term ''ordinarily,'' the term ''should'' is permissive and defines an area in which the lawyer has discretion to exercise professional judgment. PA RPC, SCOPE, par. (14).
In connection with the lawyer's decision to outsource, the PBA Ethics Committee struck language in Comment (6) to the Model Rule providing that the lawyer ''should ordinarily obtain informed consent from the client.''
Under current RPC 5.3 (Responsibilities Regarding Nonlawyer Assistants), lawyers with managerial authority within a law firm have a duty to establish internal policies and procedures to provide reasonable assurance that nonlawyers in the firm act in a manner compatible with the Rules of Professional Conduct. Proposed amendments to both the title of RPC 5.3, which substitutes ''Assistance'' for ''Assistants,'' and Comment (1), as renumbered, would now require the managerial lawyer to institute similar measures applicable to nonlawyers outside the firm who work on firm matters.
New Comment (3) to RPC 5.3 explains that a lawyer who uses a nonlawyer outside the firm for legal services to a client must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer's professional obligations. The extent of this obligation will also depend upon the circumstances, including those outlined above in connection with Comment (6) to RPC 1.1. New Comment (3) also provides that efforts to ensure the ethical provision of legal services will include communicating directions appropriate under the circumstances to the nonlawyer outside the firm.
New Comment (4) to RPC 5.3 provides that where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility, as between the client and the lawyer, for monitoring the nonlawyer.
Comment (1) to RPC 5.5 would now include a sentence that would make clear that a lawyer cannot engage in outsourcing in a manner that would facilitate the unauthorized practice of law by lawyers or nonlawyers.
Technology and Client Development (see Annex C)
The purpose of the proposed changes to RPC's 1.18, 5.5, 7.1, 7.2, and 7.3 is to address ethics-related issues that have arisen from lawyers' use of new marketing services, such as law firm websites, blogs, social and professional networking sites, pay-per-click ads, pay-per-lead services, and online videos.
Under current subsection (a) of RPC 1.18 (Duties to Prospective Client), a prospective client relationship is formed between a lawyer and another person when they ''discuss'' the possibility of forming a client-lawyer relationship; ''discussion'' implies a two-way verbal exchange. Under new subsection (a), when a person ''consults'' with a lawyer about the possibility of forming a client-lawyer relationship, RPC 1.18's duties are triggered.
Comment (2) to RPC 1.18 explains that whether written, oral or electronic communications constitute a ''consultation'' depends on the circumstances. By way of example, the Comment states that 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 submission of information about a potential representation without ''clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations,'' and the person provides the requested or invited information. In contrast, no consultation has occurred if a person unilaterally communicates information to a lawyer, including in response to: an unsolicited email or other communication; advertising that merely describes the lawyer's education, experience, areas of practice, and contact information; or advertising that provides legal information of general interest.
Comment (3) to RPC 7.1 (Communications Concerning a Lawyer's Services) would be changed to clarify that disclaimers or qualifying language in an advertisement may preclude a finding that a statement is misleading to ''the public'' rather than ''a prospective client.''
Proposed Comment (2) to RPC 7.2 (Advertising) would permit a lawyer to publicly disseminate the lawyer's email address and website, while Comments (3) and (6) to that Rule recognize that the Internet and other forms of electronic information are now among the most powerful mediums for getting information to the public.
Under the proposed amendments to Comment (6) to RPC 7.2, a lawyer would still be allowed to pay for advertising permitted by RPC 7.2 but would not be permitted to pay another person for ''recommending the lawyer's services or for channeling professional work in a manner that violates Rule 7.3 (Direct Contact with Prospective Clients).'' A ''recommendation'' occurs if the communication ''endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities.''
Significantly, a lawyer would be permitted to pay others for generating client leads, such as Internet-based client leads, if three conditions are met: 1) the lead generator does not ''recommend'' the lawyer; 2) any payment to the lead generator is consistent with RPC 1.5(e), pertaining to division of fees, and RPC 5.4, pertaining to professional independence of a lawyer; and 3) the lead generator's communications are not false or misleading under RPC 7.1. To comply with RPC 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that the lead generator: 1) is recommending the lawyer; 2) is making the referral without payment from the lawyer; or 3) has analyzed a person's legal problems when determining which lawyer should receive the referral.
Although the ABA Commission on Ethics 20/20 considered deleting the word ''channeling'' in Comment (6) to RPC 7.2, the Commission heard concerns that some forms of lead generation might be problematic, even if no ''recommendation'' occurs. By keeping the prohibition against ''channeling'' in the Rule, a lawyer would violate RPC 7.2 by paying someone to distribute a lawyer's business cards to accident victims without actually ''recommending'' the lawyer in explicit terms; as explained by the Commission, ''such a person would be 'channeling' professional work without 'recommending' the lawyer.'' Thus, ''channeling'' serves as a reminder that lawyers should not use others to engage in forms of client development that violate RPC 7.3 (Direct Contact with Prospective Clients).
Amendments to the title and text of RPC 7.3 would delete references to ''prospective client'' and replace that term with either ''person'' or ''the target of the solicitation,'' thereby broadening the prohibition of the rule to include contacts with all possible future clients, not just those who have actually shared information with a lawyer and thus have become ''prospective clients'' under RPC 1.18 (Duties to Prospective Clients).
A new proposed Comment (1) to RPC 7.3 is intended to provide a clearer definition of ''solicitation.'' A targeted communication initiated by the lawyer is a ''solicitation'' if the communication is: 1) directed to a specific person; and 2) offers to provide, or can reasonably be understood as offering to provide, legal services. Comments (2) and (3) will make clear that direct in-person, live telephone or real-time electronic contact by a lawyer with someone known to need legal services is prohibited.
In contrast, new proposed Comment (1) provides that a lawyer's communication typically does not constitute a ''solicitation'' if the communication is: 1) directed to the general public, such as through a billboard, Internet banner advertisement, website, or a television commercial; 2) in response to a request for information; or 3) automatically generated in response to Internet searches.
Finally, the term ''prospective clients'' would be deleted from Comment (21) to RPC 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law), which amendment would be consistent with the language changes to the text of RPC 7.3. Comment (21) to RPC 5.5 appears in Annex B.
Technology and Confidentiality (see Annex D)
The purpose of the proposed amendments to RPC's 1.0, 1.1, 1.4, 1.6 and 4.4 is to offer guidance to lawyers about their duty to protect confidential information in light of technology changes that have transformed how lawyers communicate with their clients and store confidential information.
Paragraph (n) of RPC 1.0 (Terminology) updates the existing definition of a ''writing'' by replacing the word ''e-mail'' with the term ''electronic communications.'' Comment (9) to RPC 1.0, which discusses the mechanism of screening of a disqualified lawyer within a law firm, clarifies that the screened lawyer is to be denied access to ''information in electronic form'' as well as law firm files.
Although Comment (6) to RPC 1.1 (Competence) implicitly encompasses a lawyer's duty to remain current with changes in the law and its practice, including the benefits and risks associated with relevant technology, the proposed amendment to Comment (6) makes that duty explicit.
Comment (4) to RPC 1.4 (Communication) currently requires a lawyer to promptly return or acknowledge client telephone calls. Technology has overtaken that duty, and the proposed amendment to Comment (4) would require a lawyer to ''promptly respond to or acknowledge client communications.''
New paragraph (d) of RPC 1.6 (Confidentiality of Information), which appears in Annex A, imposes a duty on a lawyer to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Guidance for applying the text of paragraph (d) would be included in new Comment (25) to RPC 1.6, which also appears in Annex A. That Comment requires a lawyer to act competently to safeguard privileged information against ''unauthorized access by third parties'' and ''inadvertent or unauthorized disclosure by the lawyer.'' The Comment requires that the lawyer make ''reasonable efforts'' to prevent the access or disclosure and provides five factors to be considered in determining the reasonableness of the lawyer's efforts, although those factors are not all-inclusive. Those five factors are: 1) the sensitivity of the information; 2) the likelihood of disclosure if additional safeguards are not employed; 3) the cost of employing additional safeguards; 4) the difficulty of implementing the safeguards; and 5) the extent to which the safeguards adversely affect the lawyer's ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). The Comment provides that a client may require the lawyer to implement special security measures not required by the Rule and may give informed consent to forgo security measures that would otherwise be required by the Rule.
Current paragraph (b) of RPC 4.4 (Respect for Rights of Third Persons) addresses a lawyer's obligation upon receipt of inadvertently disclosed documents. Amendments to paragraph (b) and to Comment (2) to RPC 4.4 make clear that the term ''documents,'' which typically refers to information existing in paper form, includes ''electronically stored information'' such as emails and embedded data, commonly referred to as ''metadata,'' but ''only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.'' Another amendment to Comment (2) defines the phrase ''inadvertently sent,'' as follows: ''when it is accidentally transmitted, such as when an email or letter is misaddressed or a document, including electronically stored information, is accidentally included with information that was intentionally transmitted.''
Interested persons are invited to submit written comments by mail, facsimile, or email regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382), Email address Dboard.comments@pacourts.us on or before May 16, 2013.
By The Disciplinary Board of the
Supreme Court of PennsylvaniaELAINE M. BIXLER,
Secretary
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. PROFESSIONAL RESPONSIBILITY
CHAPTER 81. RULES OF PROFESSIONAL CONDUCT
Subchapter A. RULES OF PROFESSIONAL CONDUCT § 81.4. Rules of Professional Conduct.
The following are the Rules of Professional Conduct:
CLIENT-LAWYER RELATIONSHIP Rule 1.6. Confidentiality of Information.
* * * * * (c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:
* * * * * (6) to effectuate the sale of a law practice consistent with Rule 1.17[.]; or
(7) to detect and resolve conflicts of interest from the 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.
(d) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
(e) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.
Comment: * * * * * [ Disclosure Adverse to Client ] Detection of Conflicts of Interest
* * * * * (19) Paragraph (c)(7) recognizes that lawyers in different firms may need to disclose limited information to each other to detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm, two or more firms are considering a merger, or a lawyer is considering the purchase of a law practice. See Rule 1.17, Comment (4). Under these circumstances, lawyers and law firms are permitted to disclose limited information, but only once 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 (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; 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 a public charge). Under those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer's fiduciary duty to the lawyer's firm may also govern a lawyer's conduct when exploring an association with another firm and is beyond the scope of these Rules.
(20) Any information disclosed pursuant to paragraph (c)(7) may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Paragraph (c)(7) does not restrict the use of information acquired by means independent of any disclosure pursuant to paragraph (c)(7). Paragraph (c)(7) also does not affect the disclosure of information within a law firm when the disclosure is otherwise authorized, see Comment (6), such as when a lawyer in a firm discloses information to another lawyer in the same firm to detect and resolve conflicts of interest that could arise in connection with undertaking a new representation.
(21) A lawyer may be ordered to reveal information relating to 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. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure 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.
[(20)] (22) Paragraph (c) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to 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 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.
[(21)] (23) Paragraph (c) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in paragraphs (c)(1) through [(c)(6)] (c)(7). In exercising the discretion conferred 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 (c) 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 (c). 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).
Withdrawal
[(22)] (24) If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1). After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 1.6. Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like. Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13(b).
Acting Competently to Preserve Confidentiality
[(23) A lawyer must] (25) Paragraph (d) requires a lawyer to act competently to safeguard information relating to the representation of a 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 reasonable 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 additional 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 (e.g., 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. Whether a lawyer may be required to take additional steps to safeguard a client's information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer's duties when sharing information with nonlawyers outside the lawyer's own firm, see Rule 5.3, Comments (3)—(4).
[(24)] (26) When transmitting a communication that includes information relating to the representation of a client, the lawyer 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. Factors 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. Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.
Former Client
[(25)] (27) The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.
Lobbyists
[(26)] (28) A lawyer who acts as a lobbyist on behalf of a client may disclose information relating to the representation in order to comply with any legal obligation imposed on the lawyer-lobbyist by the Legislature, the Executive Branch or an agency of the Commonwealth, or a local government unit which are consistent with the Rules of Professional Conduct. Such disclosure is explicitly authorized to carry out the representation. The Disciplinary Board of the Supreme Court shall retain jurisdiction over any violation of this Rule.
Rule 1.17. Sale of Law Practice.
* * * * *
Comment: * * * * * Client Confidences, Consent and Notice
(4) Negotiations between seller and prospective purchaser prior to disclosure of information relating to a specific representation of an identifiable client no more violate the confidentiality provisions of Rule 1.6 than do preliminary discussions concerning the possible association of another lawyer or mergers between firms, with respect to which client consent is not required. See Rule 1.6(c)(6) and (7). Providing the purchaser access to [the] client-specific detailed information relating to the representation [and to the], such as the client's file, however, requires client consent. The Rule provides that before such information can be disclosed by the seller to the purchaser the client must be given actual written notice of the contemplated sale and file transfer including the identity of the purchaser and any proposed change in the terms of future representation, and must be told that the decision to consent or make other arrangements must be made within 60 days. If actual notice is given, and the client makes no response within the 60 day period, client consent to the sale will be presumed.
* * * * *
Annex B
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. PROFESSIONAL RESPONSIBILITY
CHAPTER 81. RULES OF PROFESSIONAL CONDUCT
Subchapter A. RULES OF PROFESSIONAL CONDUCT § 81.4. Rules of Professional Conduct.
The following are the Rules of Professional Conduct:
CLIENT-LAWYER RELATIONSHIP Rule 1.1. Competence.
* * * * *
Comment: * * * * * Retaining or Contracting With Other Lawyers
(6) Before a lawyer retains or contracts with other lawyers outside the lawyer's own firm to provide or assist in the provision of legal services to a client, the lawyer must reasonably believe that the other lawyers' services will contribute to the competent and ethical representation of the client. See also Rules 1.2, 1.4, 1.6, and 5.5(a). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer's own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.
(7) When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. See Rule 1.2. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.
Maintaining Competence
[(6)] (8) To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
LAW FIRMS AND ASSOCIATIONS Rule 5.3. Responsibilities Regarding Nonlawyer [Assistants] Assistance.
* * * * *
Comment: [(1) Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation 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.
(2) Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment (1) to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.]
(1) Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way compatible with the professional obligations of the lawyer. See Comment (6) to Rule 1.1 and Comment (1) to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over such nonlawyers within or outside the firm. Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such nonlawyers within or outside the firm that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.
Nonlawyers Within the Firm
(2) Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.
Nonlawyers Outside the Firm
(3) A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer's professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1, 1.2, 1.4, 1.6, 5.4(a), and 5.5(a). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer.
(4) Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.
Rule 5.5. Unauthorized Practice of Law; Multijuris-dictional Practice Of Law.
* * * * *
Comment: [1.] (1) A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be 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.
* * * * * [21.] (21) Paragraphs (c) and (d) do not authorize communications advertising legal services [to prospective clients] in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services [to prospective clients] in this jurisdiction is governed by Rules 7.1 to 7.5.
Annex C
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. PROFESSIONAL RESPONSIBILITY
CHAPTER 81. RULES OF PROFESSIONAL CONDUCT
Subchapter A. RULES OF PROFESSIONAL CONDUCT § 81.4. Rules of Professional Conduct.
The following are the Rules of Professional Conduct:
CLIENT-LAWYER RELATIONSHIP Rule 1.18. Duties to Prospective Clients.
(a) A person who [discusses] consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has [had discussions with] learned information from a prospective client shall not use or reveal information which may be significantly harmful to that person [learned in the consultation], except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer [received] learned information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When [a] the lawyer has [received disqualifying] learned information as defined in paragraph (c), representation is permissible if:
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Comment: (1) Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice. A lawyer's [discussions] 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.
(2) [Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information, such as an unsolicited e-mail or other communication,] A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer 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 submission 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 also Comment (4). In contrast, a consultation does not occur if a person provides information to a lawyer, such as in an unsolicited e-mail or other communication, in response to advertising 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 a client-lawyer relationship will be established, and is thus not a [''prospective client'' within the meaning of paragraph (a).] ''prospective client.'' A person who participates in an initial consultation, or communicates information, with the intent to disqualify a lawyer from representing a client with materially adverse interests is not entitled to the protections of paragraphs (b) or (c) of this Rule. A person's intent to disqualify may be inferred from the circumstances.
* * * * * (4) In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial [interview] 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-representation 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.
(5) A lawyer may condition [conversations] a consultation with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. See Rule 1.0(e) 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.
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INFORMATION ABOUT LEGAL SERVICES Rule 7.1. Communications Concerning a Lawyer's [Service] Services.
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Comment: * * * * * (3) An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be 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 [a prospective client] the public.
* * * * * Rule 7.2. Advertising.
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Comment: (1) To assist the public in learning about and obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.
(2) This Rule permits public dissemination of information concerning a lawyer's name or firm name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
(3) Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television and other forms of advertising, against advertising going beyond specified facts about a lawyer, or against ''undignified'' advertising. Television [is now one of], the Internet, and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. [Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule.] But see Rule 7.3(a) for the prohibition against [the] a solicitation [of a prospective client] through a real-time electronic exchange [that is not initiated by the prospective client] initiated by the lawyer.
* * * * * Paying Others to Recommend a Lawyer
(6) Subject to the limitations set forth under [paragraph] paragraphs (c) and (j), a lawyer is allowed to pay for advertising permitted by this Rule, but otherwise is not permitted to pay another person for recommending the lawyer's services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities. Paragraph (c)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the cost of print, directory listings, on-line directory listings, newspaper ads, television and radio air time, domain-name registrations, sponsorship fees, [banner ads] Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) and 5.4, and the lead generator's communications are consistent with Rule 7.1. To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person's legal problems when determining which lawyer should receive the referral. See also Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of non-lawyers [who prepare marketing materials for them] and Rule 8.4(a). This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer's services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs. Paragraph (c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule.
* * * * * Rule 7.3. [Direct Contact with Prospective] Solicitation of Clients.
(a) A lawyer shall not solicit in-person or by intermediary professional employment from a [prospective client] person with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer. The term ''solicit'' includes contact in-person, by telephone or by real-time electronic communication, but, subject to the requirements of Rule 7.1 and Rule 7.3(b), does not include written communications, which may include targeted, direct mail advertisements.
(b) A lawyer may contact, or send a written communication to, [a prospective client] the target of the solicitation for the purpose of obtaining professional employment unless:
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Comment: (1) A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer's communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.
(2) There is a potential for abuse [inherent in direct solicitation, including] when a solicitation involves direct in-person, live telephone or real-time electronic [communication,] contact by a lawyer [of prospective clients] with someone known to need legal services. These forms of contact subject [the lay] a person to the private importuning of a trained advocate, in a direct interpersonal encounter. The [prospective client] person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.
[(2)] (3) This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation [of prospective clients] justifies its prohibition, particularly since [lawyer advertising and written communication permitted under Rule 7.2 offer] lawyers have alternative means of conveying necessary information to those who may be in need of legal services. [Advertising and written] In particular, communications[, which may be mailed, or autodialed] can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations make it possible for [a prospective client] the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting [the prospective client] the public to direct in-person, telephone or real-time electronic persuasion that may overwhelm [the client's] a person's judgment.
[(3)] (4) The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to [prospective client] the public, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1 The contents of direct in-person, live telephone or real-time electronic [conversations between a lawyer and prospective client] contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations from those that are false and misleading.
[(4)] (5) There is far less likelihood that a lawyer would engage in abusive practices against [an individual who is] a former client, or a person with whom the lawyer has a close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. Consequently, the general prohibition in Rule 7.3(a) is not applicable in those situations. Also, paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to [its] their members or beneficiaries.
[(5)] (6) But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(3), or which involves contact with [a prospective client] someone who has made known to the lawyer desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(2) is prohibited. Moreover, if after sending a letter or other communication [to a client] as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the [prospective client] recipient of the communication may violate the provisions of Rule 7.3(b).
[(6)] (7) This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third-parties for the purposes informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to [a prospective client] people who are seeking legal services for themselves. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.
Annex D
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. PROFESSIONAL RESPONSIBILITY
CHAPTER 81. RULES OF PROFESSIONAL CONDUCT
Subchapter A. RULES OF PROFESSIONAL CONDUCT § 81.4. Rules of Professional Conduct.
The following are the Rules of Professional Conduct:
CLIENT-LAWYER RELATIONSHIP Rule 1.0. Terminology.
* * * * * (n) ''Writing'' or ''written'' denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, [Photostatting] photostating, photography, audio or video recording, and [e-mail] electronic communications. A ''signed'' writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.
Comment: * * * * * Screened
* * * * * (9) The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other [materials] information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other [materials] 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.
* * * * * Rule 1.1. Competence.
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Comment: * * * * * Maintaining Competence
(6) To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Rule 1.4. Communication.
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Comment: * * * * * Communicating with Client
* * * * * (4) A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (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. [Client telephone calls should be promptly returned or acknowledged.] A lawyer should promptly respond to or acknowledge client communications.
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TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS Rule 4.4. Respect for Rights of Third Persons.
* * * * * (b) A lawyer who receives a document, including electronically stored information, relating to the representation of the lawyer's client and knows or reasonably should know that the document, including electronically stored information, was inadvertently sent shall promptly notify the sender.
Comment: * * * * * (2) Paragraph (b) recognizes that lawyers sometimes receive [documents that were] a document including electronically stored information, that was mistakenly sent or produced by opposing parties or their lawyers. A document, including electronically stored information, is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document, including electronically stored information, is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document, including electronically stored information, was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the [original] document, including electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document, including electronically stored information, has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document, including electronically stored information, that the lawyer knows or reasonably should know may have been [wrongfully] inappropriately obtained by the sending person. For purposes of this Rule, ''document, including electronically stored information'' includes [e-mail or other electronic modes of transmission], 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 lawyer.
(3) Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving [the document] it that it was inadvertently sent [to the wrong address]. 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.
[Pa.B. Doc. No. 13-652. Filed for public inspection April 12, 2013, 9:00 a.m.]
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