PROFESSIONAL RESPONSIBILITY AND DISCIPLINE
AMENDMENTS TO THE CODE OF PROFESSIONAL RESPONSIBILITY
by The Supreme Court As Of September 29, 1975
Editor’s Note: Following is a compilation of the changes
which were recently adopted by the Supreme Court. It should be noted that the amendments affect the Code of
Professional Responsibility promulgated by the House of Delegates of the
American Bar Association on August 12, 1969, effective for ABA members on
January 1, 1970, and adopted by order of our Court August 4, 1970. We were reminded by the State Board of
Professional Responsibility that other “possible revisions are constantly being
studied”, and will be published when adopted by the court.
AMENDMENTS TO CODE OF PROFESSIONAL
RESPONSIBILITY REGARDING PREPAID LEGAL SERVICES
EC 2-33
As a part of the legal
profession’s commitment to the principle that high quality legal services
should be available to all, attorneys are encouraged to cooperate with
qualified legal assistance organizations providing prepaid legal services. Such participation should at all times be in
accordance with the basic tenents of the profession: independence, integrity,
competence and devotion to the interests of individual clients. An attorney so participating should make
certain that his relationship with a qualified legal assistance organization in
no way interferes with his independent, professional representation of the
interests of the individual client. An
attorney should avoid situations in which officials of the organization who are
not lawyers attempt to direct attorneys concerning the manner in which legal
services are performed for individual members, and should also avoid situations
in which considerations of economy are given undue weight in determining the
attorneys employed by an organization or the legal services to be performed for
the member or beneficiary rather than competence and quality of service. An attorney interested in maintaining the
historic traditions of the profession and preserving the function of a lawyer
as a trusted and independent advisor to individual members of society should
carefully assess such factors when accepting employment by, or otherwise
participating in, a particular qualified legal assistance organization, and
while so participating should adhere to the highest professional standards of
effort and competence.
DR 2-101
(B) A
lawyer shall not publicize himself or anyone associated with him as a lawyer
through newspaper or magazine advertisements, radio or television
announcements, display advertisements in city or telephone directories, or
other means of commercial publicity, nor shall he authorize or permit others to
do so in his behalf. This rule does not
prohibit limited and dignified identification of a lawyer as a lawyer as well
as by name:
DR 2-103 RECOMMENDATION
OF PROFESSIONAL EMPLOYMENT; SUGGESTION OF NEED OF LEGAL SERVICES.
(A) A
lawyer shall not recommend employment, as a private practitioner, of himself or
anyone associated with him to a non-lawyer who has not sought his advice
regarding employment of a lawyer.
(B) A
lawyer shall not compensate or give anything of value to any person to
recommend or secure, or as a reward for having recommended or secured,
employment by a client of himself or any lawyer associated with him.
(C) A
lawyer shall not request any person to recommend employment, as a private
practitioner, of himself or anyone associated with him.
(D) A
lawyer shall not knowingly assist any person to promote the use of his services
or those of any lawyer associated with him.
(E) A
lawyer shall not accept employment when he knows or it is obvious that the
person who seeks his services does so as a result of conduct prohibited under
this Disciplinary Rule.
(F) A
lawyer shall not accept employment if he knows or it is obvious that it results
from unsolicited advice by him or any lawyer associated with him to a layman
that he should obtain counsel or take legal action, except:
(1) If the
advice was to a close friend, relative, former client (if the advice is germane
to the former employment), or one reasonably believed to be a client.
(2) Without
affecting the right to accept employment, a lawyer may speak publicly or write
for publication on legal topics so long as he does not emphasize his own
professional experience or reputation and does not undertake to give individual
advice.
(3) If
success in asserting rights or defenses of his client in litigation in the
nature of a class action is dependent upon the joinder of others, a lawyer may
accept, but shall not seek, employment from those contacted for the purpose of
obtaining their joinder.
DR 2-104
PARTICIPATION WITH ORGANIZATIONS’ LEGAL
SERVICE
ACTIVITIES.
(A) A
lawyer may render legal services to a beneficiary of one of the following which
employs, pays for, or recommends him or anyone associated with him to render
the services, if he does not permit interference with the exercise of
independent professional judgment in behalf of the beneficiary:
(1) A legal
aid office or public defender office operated or sponsored by a duly accredited
law school, by a bona fide non-profit community organization, by a governmental
agency, or by a bar association.
(2) A
military legal assistance office.
(3) A lawyer
referral service operated or sponsored by a bar association.
(B) A
lawyer may knowingly render legal services to a member or beneficiary of any
other organization that employs, pays for, or recommends him or anyone
associated with him to render services only if the following conditions are
satisfied:
(1) He does
not permit interference with the exercise of independent professional judgment
in behalf of the member or beneficiary.
(2) He
recognizes the member or beneficiary for whom the legal services are rendered,
and not the organization, as his client.
(3) He has
not, and he does not know and it is not obvious that anyone associated with him
has, except with respect to a legal service arrangement initiated, sponsored,
or operated by a bar association:
(a) Requested
or compensated any person to recommend or secure, or compensated any person for
having recommended or secured, the initiation of the organization or its legal
service arrangement;
(b) Participated
in the initiation of the organization or its legal service arrangement, other
then by rendering, at the unsolicited request of those wishing to form it,
legal services incident to its formation;
(c) Recommended,
or requested another to recommend or secure, the organization’s employment,
payment, or recommendation of himself or any lawyer associated with him, when
the organization had not sought advice regarding its employment, payment,
recommendation of a lawyer, unless the recommendation was for employment by the
organization on a full-time salaried basis; or
(d) Compensated
any person to recommend or secure or for having recommended or secured the
organization’s employment, payment, or recommendation of himself or any lawyer
associated with him.
(4) He does
not know and it is not obvious that the organization is in violation of any
applicable filing or other requirement imposed by court rule, statute or
regulation that governs, or is engaged in conduct that involves dishonesty,
fraud, deceit, or misrepresentation regarding, its legal service operations.
(5) Any
member or beneficiary who is entitled to have legal services furnished or paid
for by the organization may, if such member or beneficiary so desires, select
counsel other than that furnished, selected or approved by the organization for
the particular matter involved: and the legal service plan of such organization
provides appropriate relief for any member or beneficiary who asserts a claim
that representation by counsel furnished, selected or approved would be
unethical, improper or inadequate under the circumstances of the matter
involved and the plan provides an appropriate procedure for seeking such
relief.
(C) A
lawyer shall not render legal services under DR 2-104(B) if he knows or it is
obvious that the organization is organized for profit or, irrespective of its
legal structure, is in fact operated for profit, and that the employment,
payment, or recommendation is pursuant to a regular practice of providing for
legal services to others, unless the services are provided for:
(1) As an
employment fringe benefit, directly or through insurance;
(2) Through
insurance used in connection with an employee organization’s arrangement to
provide for legal services to its members or their beneficiaries;
(3) Incident
to a liability insurance policy; or
(4) Through
an insurance policy under which the insurer does not employ or recommend the
lawyer but only pays for the rendering of legal services by any lawyer the
member or beneficiary may select.
(D) A sole
proprietor providing for legal services as an employment fringe benefit is
deemed an “organization” for purposes of this Rule.
(E) A
lawyer who renders legal services under DR 2-104(B) shall furnish the Board of
Professional Responsibility information as it may reasonably require relating
to his compliance with this Code in rendering the services.
(F) A
lawyer selected by an organization to render legal services to a member or
beneficiary thereof shall not accept employment from the member or beneficiary
to render legal services other than those for which the organization selected
him if he knows or it is obvious that it results from unsolicited advice by him
or any lawyer associated with him that the member or beneficiary should obtain
counsel or take legal action.
(G) Notwithstanding
any Disciplinary Rule, a lawyer who renders legal services, or who has been
requested by an organization to be available to render legal services, under DR
2-104(A) or (B) may, without affecting the right to accept employment:
(1) Authorize,
permit, or assist the organization to use a public communication or commercial
publicity, which does not identify any lawyer by name, to describe the
availability or nature of its legal service activities.
(2) Participate
in activities conducted or sponsored by the organization and designed to
educate laymen to recognize legal problems, to make intelligent selection of
counsel, or to utilize available legal services, so long as he does not
emphasize his own professional experience and does not undertake to give
individual advice.
(3) Except
as to an organization under DR 2-104(C)(4), authorize, permit or assist limited
and dignified identification of himself as a lawyer and by name, along with the
biographical information permitted under DR 2-102(A)(6), in communications by
the organization directed to its members or beneficiaries.
(H) Notwithstanding
any Disciplinary Rule, a lawyer may request referrals from a lawyer referral
service operated or sponsored by a bar association, and may pay its fees
incident thereto.
DEFINITIONS*
As used in the
Disciplinary Rules of the Code of Professional Responsibility:
(1) “Differing
interests” include every interest that will adversely affect either the
judgment or the loyalty of a lawyer to a client, whether it be a conflicting,
inconsistent, diverse, or other interest.
(2) “Law
firm” includes a professional legal corporation.
(3) “Person”
includes a corporation, an association, a trust, a partnership, and any other
organization or legal entity.
(4) “Professional
legal corporation” means a corporation, or an association treated as a
corporation, authorized by law to practice law for profit.
(5) “State”
includes the District of Columbia, Puerto Rico, and other federal territories
and possessions.
(6) “Tribunal”
includes all courts and all other adjudicatory bodies.
(7) “Bar
association” means a bar association representative of the general bar of the
geographical area in which the association exists.
*”Confidence”
and “secret” are defined in DR 4-101(A).