IN THE SUPREME COURT OF THE STATE OF MONTANA

AF 09

-0688

_________________

IN RE THE RULES OF PROFESSIONAL CONDUCT O R D E R

_________________

The State Bar of Montana Board of Trustees petitioned this Court to revise portions of the Montana Rules of Professional Conduct to provide guidance regarding lawyers’ use of technology. The proposed revisions affect the Preamble, Rule 1.0 on Terminology defining “writing,” Rule 1.6 on Confidentiality, and Rule 4.4(b) on Respect

for Rights of Third Persons. The Court allowed a public comment period on the proposals.

At a September 20, 2016 public meeting, the Court voted to adopt the revisions as proposed by the Montana Board of Trustees. In addition, the Court discussed a new
subsection to Rule 4.4, proposedby the State BarEthics Committee. The Court voted to

accept public comment on that proposed new subsection 4.4(c), which would read as
follows:

A lawyer shall not knowingly access or use electronically stored information in a communication or document received from another lawyer, for the purpose ofdiscoveringprotected work product, privileged

or other confidential information unless the receiving lawyer has obtained permission to do so from the author of the communication or document. Communication or document as used in this rule excludes documents produced in discovery and information that is the subject of criminal investigation.

IT IS ORDERED that the above

-referenced revisions to the Preamble, Rule 1.0
, Rule 1.6

, and Rule 4.4(b) of theMontanaRules of Professional Conduct are ADOPTED
, effective January 1, 2017

. The revisions are reflected in the complete text of the

Montana Rules of Professional Conductwhich areappended to this Order. 09/22/2016

Case Number: AF 09-06882

IT IS FURTHER ORDERED that the Court will accept public comment on the

above proposed new 4.4(c) ofthe Montana Rules ofProfessional Conduct. The Court

directs the State Bar’s Ethics and Technology Committees to confer and submit additional comment on the proposal within the time allowed. Comments must be filed in writing with the Clerk of this Courton or before October 31, 2016

. This Order shall be published on the Montana Supreme Court website and notice

ofthis Order shall be posted on the website ofthe State Bar ofMontana and in the next

available issue of theMontana Lawyer.

The Clerk is directed to provide copies ofthis Order to the Montana State Law Library

, the State Bar of Montana
, and the Chairs of the Ethics and Technology

Committees

. Dated this22ndday ofSeptember, 2016.

/S/ MIKE McGRATH /S/ BETH BAKER /S/ JIM RICE /S/ PATRICIA COTTER /S/ JAMES JEREMIAH SHEA /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON1 **MONTANA RULES OF PROFESSIONAL CONDUCT**

**PREAMBLE: A LAWYER’S RESPONSIBILITIES** (1) A lawyer shall always pursue the truth. (2) A lawyer, as a member of the legal profession, is a representative of clients, an officer ofthe legal system and a public citizen having special responsibility for the quality of justice. (3) As a representative of clients, a lawyer performs various functions. In performance of any functions a lawyer shall behave consistently with the requirements of honest dealings with others. As advisor, a lawyer endeavors to provide a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements under these Rules of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reportingabout them. (4) In addition to these representational functions, a lawyer may serve as a third

-party neutral, a nonrepresentational role helping theparties to resolve a dispute or other matter. Someof these Rules apply directly to lawyers who are or have served as third

-party neutrals. See, e.g., Rules 1.12 and 2.3. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4. (5) In all professional functions a lawyer should be competent, prompt and diligent

. Competence implies an obligation to keep abreast ofchanges in the law and its practice, including the benefits and risks associated with relevant technology. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. (6) A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. Alawyer should demonstrate respect for the legal system and for those who serve it, includingjudges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. (7) As apublic citizen, a lawyer should seek improvement ofthe law, access to the legal system, the administration ofjustice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the lawbeyond itsuse for clients, em ploy that knowledge inreform ofthe law andwork
to strengthen legal education. In addition, a lawyer should further the public’s understanding ofand confidence in the rule oflaw and thejustice system because legal institutions in a constitutional democracy depend onpopularparticipation and support to2

maintain their authority. A lawyer should be mindful of deficiencies in the administration ofjustice and ofthe fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system ofjustice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. (8) Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation ofprofessional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exem

plify the legal profession’s ideals of public service. (9) A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are harmonious. A lawyer can be a dedicated advocate on behalf of a client, even an unpopular one, but in doing so must comply with these Rules of Professional Conduct. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. (10) In the nature oflaw practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s
responsibilities to clients, to the legal system and to the lawyer’s own interest. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework ofthese Rules, however, many difficult issues ofprofessional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (11) The legal profession is self

-governing. Although other professions also have been grantedpowers ofself

-government, the legal profession isunique in thisrespectbecause of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested in the courts. (12) Self

-regulation helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. (13) The legal profession’s relative autonomy carries with it special responsibilities of self

-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self

-interested

concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other3

lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. (14) Lawyers play a vital role in the preservation ofsociety. The fulfillment ofthis role requires an understanding by lawyers of their relationship to our legal system. All lawyers understand that, as officers ofthe court, they have a duty to be truthful, which engenders trust in both the profession and the rule of law. The Rules of Professional Conduct, when properly applied, serve to define that relationship. Trust in the integrity of the system and those who operate it is a basic necessity ofthe rule oflaw; accordingly truthfulness must be the hallmark of the legal profession, and the stock

-in

-trade of all lawyers. (15) The Rules ofProfessional Conduct are rules ofreason. They should be interpreted with reference to the purposes oflegal representation and ofthe law itself. Some ofthe Rules are imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,”

are permissive and define areas under the Rules in which the lawyer has discretion to exercise professionaljudgment.No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the
nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’sprofessionalrole. Many ofthe Commentsuse the term “should.” Comments do
not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. (16) The Rules presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters oflicensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes usedto alert lawyers to their responsibilities under such other law. (17) Compliance with the Rules, as with all law in an open society, depends primarily
upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. (18) Furthermore, for purposes ofdetermining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client

-lawyer relationship exists. Most ofthe duties flowing from the client

-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client

-lawyer relationship shall be established. See Rule 1.20. Whether a client

-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of f act. (19)Undervarious legalprovisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal
matters that ordinarily reposes in the client in private client

-lawyer relationships. For4

example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adversejudgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same maybe
true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority. (20) Failure to complywith an obligation orprohibition imposedby a Rule is abasis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has
to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules
presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness ofthe violation, extenuating factors and whether there have been previous violations. (21) Violation ofa Rule should not itselfgive rise to a cause ofaction against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed
toprovide guidance to lawyers and toprovide a structure forregulating conduct through disciplinary agencies. They arenot designedtobe abasis for civil liability. Furthermore, thepurpose ofthe Rules canbe subverted when they are invokedby opposingparties as procedural weapons. The fact that a Rule provides just basis for self

-assessment by a lawyer of his/her conduct or a basis for sanctioning a lawyer under the disciplinary process does not imply that an opposing party or lawyer has standing to seek enforcement of the Rules in a collateral proceeding or transaction outside of the disciplinary process.

**RULE 1.0: TERMINOLOGY** (a) “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. (b) “Bona fide” denotes in or with good faith; honestly, openly, and sincerely; without deceit or fraud. (c) “Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of thematter in question. (d) “Confirmed in writing,” when used in reference to the informed consent ofa person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to theperson confirming an oral informed consent. Seeparagraph (g) 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. (e) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional5

corporation, sole proprietorship or other association authorized to practice law; or lawyers em

ployed in a legal services organization or the legal department of a corporation or other organization. (f) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. (g) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (h) “Knowingly,” “known” or “knows” denotes actual knowledge ofthe fact in question. A person’s knowledge may be inferred from circumstances. (i) “Partner” denotes a member of a law partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. (j) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. (k) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. (l) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matterin question. (m) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition ofprocedures 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. (n) “Substantial”whenused inreference to degree or extent denotes a material matter of clear and weighty importance. (o) “Tribunal” denotes a court, 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 argumentby aparty or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter. (p) “Writing” or “written” denotes a tangible or electronicrecord ofa communication or representation, including handwriting, typewriting, printing, Photostatting

, photography, audio or video recording, and electronic communications. A “signed” writing includes the electronic equivalent ofa signature, such as an electronic sound, symbol or process, which is attached to a writing and executed or adopted by a person with the intent to sign the writing.

**CLIENT**

**- LAWYER RELATIONSHIP** 

**RULE 1.1: COMPETENCE**6

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

**RULE 1.2:**  **S COPE**  **OF REPRESENTATION**  **AND ALLOCATION**  **OF AUTHORITY BETWEEN CLIENT AND LAWYER**  (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives ofrepresentation and, as required by Rule 1.4, shall consult with the client as to the meansbywhich they are tobepursued. A lawyermay take such action on behalf ofthe client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer’s representation ofa client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing. (1) The client’s informed consent must be confirmed in writing unless: (i) therepresentation of the client consists solely of telephone consultation; (ii) the representation is provided by a lawyer employed by a nonprofit legal services program or participating in a nonprofit court

-annexed legal services program and the lawyer’s representation consists solely of providing information and advice or the preparation of court

-approved legal forms; or (iii) the court appoints the attorney for a limitedpurpose that is set forth in the appointment order. (2) Ifthe client gives informed consent in writing signed by the client, there shall be a presumption that: (i) the representation is limited to the attorney and the services described in the writing; and (ii) the attorney does not represent the client generally or in matters other thanthose identified in the writing. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyerknows is criminal or fraudulent,but a lawyermay discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to

makeagood faith effort to determine the validity, scope, meaning or application ofthe law.

**RULE 1.3: DILIGENCE** A lawyer shall act with reasonable diligence and promptness in representing a client.7

**RULE 1.4: COMMUNICATION**  (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(g), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

**RULE 1.5: FEES** (a) A lawyer 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 feeinclude the following: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance ofthe particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability ofthe lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation andthe basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client 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 in writing. This paragraph does not apply in any matter in which it is reasonably foreseeable that total cost to a client, includingattorney fees, will be $500 or less. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shallbe in awriting signedby 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 such8

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 ofa 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. (d) A lawyer shall not enter into an arrangement for, charge or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing ofa divorce or upon the amount ofmaintenance or support or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division ofa feebetween lawyerswho arenot in the same firm maybe made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.

**RULE 1.6: CONFIDENTIALITY OF INFORMATION**  (a) A lawyer shall not reveal information relating to the representation ofa client unless the client gives informed consent, the disclosure is impliedly authorized in orderto carry out the representation or the disclosureis permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to secure legal advice about the lawyer’s compliance with these Rules; (3) 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; or (4) to comply with other law or a court order. (c) 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.

**RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS** (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict ofinterest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation ofone or more clients will be9

materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

**RULE 1.8:**  **C ONFL** **ICT OF**  **INTEREST: CURRENT**  **CLIENTS: SPECIFIC**  **RULES** (a) 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: (1) the transaction andterms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (2) in matters in which a lawyer wishes to assert a retaining lien against client property,papers or materials in the lawyer’spossession to securepayment forthe lawyer’s services and costs advanced relating to such property, papers or materials, a written agreement for such a lien shall expressly set forth the limitations contained in paragraph (i)(3); (3) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (4) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gif t, or prepare on behalf of 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. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shallnotprovide financial assistance to a client in connectionwithpending or contemplated litigation, except that:10

(1) a lawyermay advance court costs and expenses oflitigation, the repayment of which may be contingent on the outcome of the matter; (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; (3) a lawyer may, for the sole purpose of providing basic living expenses, guarantee a loan from a regulated financial institution whose usual business involves making loans if such loan is reasonably needed to enable the client to withstand delay in litigation that would otherwise put substantial pressure on the client to settle a case because of financial hardship rather than on the merits, provided the client remains ultimately liable for repayment of the loan without regard to the outcome of the litigation and, further provided that neither the lawyer

nor anyone on his/her behalf offers, promises or advertises such financial assistance before being retained by the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives written informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client

-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in awriting signedby the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and ofthe participation of each person in the settlement. (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client

or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice ofindependent legal counsel in connection therewith. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer: (1) may acquire and assert a charging lien only against causes of action or counterclaims in litigation pursuant to and only to the extent specified in MCA37

- 61

-420(2); such a charging lien does not extend to other clientproperty,papers or materials in the lawyer’s possession, to any matter not in litigation, or to any matter otherwise not covered by the specific language of MCA 37

-61

-420(2); (2) may contract with a client for a reasonable contingent fee in a civil case; and (3) may not acquire or assert a retaining lien to secure payment due for the11

lawyer’s services against any client property, papers or materials other than those related to the matter f

orwhichpaymenthasnotbeen made and,upon termination of representation, shall deliver to the client any client property, papers or materials reasonably necessary to protect the client’s interest in the matter to which the property, papers or materialsrelate as provided in Rule 1.16(d). (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client

-lawyer relationship commenced. (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

**RULE 1.9: DUTIES TO FORMER CLIENTS** (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests ofthe former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related
matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired inf ormation protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

**RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE** (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 unless the prohibition is based on a personal interest ofthe prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and12

1.9(c) that is material to the matter. (c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowinglyrepresent a person in a matter in which that lawyer is disqualifiedunder Rule 1.9 unless: (1) thepersonally disqualified lawyer is timely screened from anyparticipation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule. (d) A disqualificationprescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7. (e) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

**RULE 1.11:**  **S PECIAL**  **CONFLICTS OF**  **INTEREST FOR**  **FORMER AND**  **CURRENT GOVERNMENT OFFICERS AND EMPLOYEES** (a) Except as law may otherwise expressly permit, a lawyer who has formerly served asa public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or em ployee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule. (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or em ployee, may not represent a private client whose interests are adverse to thatperson in a matter inwhich the information couldbeused 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 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. (d) Except as law may otherwise expresslypermit, a lawyer currently serving as apublic officer or employee:13

(1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental em ployment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii)negotiate forprivate em ploymentwith anypersonwho is involved as a party or as lawyer for a party in a matter in which the lawyer is participatingpersonally and substantially, except that a lawyer serving as a law clerk to ajudge, other adjudicative officer or arbitrator may negotiate for private em

ployment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b). (e) As used in this Rule, the term “matter” includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency.

**RULE 1.12:**  **F ORMER**  **JUDGE, ARBITRATOR,**  **SETTLEMENT MASTER,**  **MEDIATOR, OR OTHER THIRD**

**- PARTY NEUTRAL**  (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as ajudge or other adjudicative officer or law clerk to such a person or as an arbitrator, settlement master, mediator or other third

-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (b) A lawyer shall not negotiate for em ployment 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 as ajudge or other adjudicative officer or as an arbitrator, settlement master, mediator or other third

-party neutral. A lawyer serving as a law clerk to ajudge

or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer. (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule. (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.14

**RULE 1.13: ORGANIZATION AS CLIENT** (a) A lawyer em

ployed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, em ployee or other person associatedwith the organization is engaged in action, intends to act orrefuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature ofthe lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others: (1) asking for reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act on behalf of the organization as determined by applicable law. (c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalfofthe organization insists upon action, or a refusal to act, that is clearly a violation oflaw and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16. (d) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity ofthe client when the lawyerknows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing. (e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. Ifthe organization’s consent to the dual representation is required by Rule 1.7, the
consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

**RULE 1.14: CLIENT WITH DIMINISHED CAPACITY** (a) When a client’s capacity to make adequately considered decisions in connectionwith

a representation is diminished, 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. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot15

adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consultingwith individuals or entities thathave the ability to take action to protect the client and, in appropriate cases, seeking the appointment ofa guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When 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.

**RULE 1.15: SAFEKEEPIN G PROPERTY**  (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in accordancewith Rule 1.18 and this Rule. Otherproperty shallbe identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shallpromptlynotify the client orthirdperson. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall
prom ptly deliver to the client or third person any funds or other 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 accounting regarding such property. (c) When in the course ofrepresentation a lawyer is in possession ofproperty in which both the lawyer and another person claim interests, the property shallbe kept separate by the lawyeruntil there is an accounting and severance oftheir interests. Ifa dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

**RULE 1.16: DECLINING OR TERMINATING REPRESENTATION** (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) therepresentation willresult in violation of the Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the clientpersists in a course ofaction involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud;16

(4) the clientinsists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must com

ply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d)Upon termination ofrepresentation, a lawyer shall take steps to the extentreasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for em

ployment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has
notbeen earned or incurred. A lawyer is entitled toretain and isnot obligedto deliverto

a client or former clientpapers or materialspersonal to the lawyer or created or intended for internal use by the lawyer except as required by the limitations on the retaining lien in Rule 1.8(i). Except for those client papers which a lawyer may properly retain under the preceding sentence, a lawyer shall deliver either the originals or copies of papers or materials requested or required by a client or former client and bear the copying costs involved.

**RULE 1.17: GOVERNMENT EMPLOYMENT** An attorney em

ployed full time by the State ofMontana or a political subdivision shall
not accept other employment during the course ofwhich it would be possible to use or otherwise rely on information obtained by reason of government em ployment that is injurious, confidential or privileged and not otherwise discoverable.

**RULE 1.18:**  **I NTEREST**  **ON LAWYER**  **TRUST ACCOUNTS**  **(IOLTA) PROGRAM**  (a) Purpose. The purpose ofthe Interest on Lawyer Trust Accounts (IOLTA) program is
to provide funds for the Montana Justice Foundation to pay the reasonable costs of administering the program and to make grants to entities with missions within the following general categories: (1) Providing legal services, through both paid staff program(s) and pro bono program(s), to Montana’s low income citizens who would otherwise be unable to obtain legal assistance; (2) promoting a knowledge and awareness of the law; and (3) improving the administration of justice. (b) Required participation. IOLTA program participation is mandatory, except as provided in subsection (d), below. Every non

-exempt lawyer admitted to practice in17

Montana, and/or every law firm composed of any such lawyers, which receives client funds, shall establish and maintain an interest

-bearing trust account for pooled client funds, termed an “IOLTA Trust Account.” Each lawyer/firm shall also establish separate interest

-bearing trust accounts for individual clients, termed “Client Trust Accounts,” when appropriate pursuant to this Rule. (c) Administration. (1) Deposits of clients’ funds. (A) All client funds paid to a lawyer/firm, including advances for costs and
expenses, shall be deposited and maintained in one or more identifiable interest

-bearing trust accounts (Trust Accounts) in the State of Montana. No funds belonging to the lawyer/firm shall be deposited into a Trust Account except: (i) funds reasonably sufficient to pay account charges not offset by interest; (ii) an amount to meet a minimum balance requirement for the waiver of service charges; and/or (iii) funds belonging in part to a client and in part presently or potentially to the lawyer/firm, but the portion belonging to the lawyer/firm shall be withdrawn when due unless the right of the lawyer/firm to such funds is disputed by the client, in which event the disputed portion shall remain in the account until the dispute is resolved. (B) The lawyer/firm shall comply with all Rules relating to preserving the identity of clients’ funds and property. (C) Every Trust Account shall be established with a federally

-insured and
state or federally regulated financial institution authorized by federal or state law to do business in Montana. Funds in each Trust Account shall be subject to immediate withdrawal. (D) The interest rate payable on a Trust Account shall not be less than the
rate paid to non

-lawyer depositors. Higher rates offered for deposits meeting certain criteria, such as certificates of deposit, maybe obtained on Trust Account funds ifimmediate withdrawal is available. (E) Every Trust Account shall bear the name of the lawyer/firm and be clearly designated as either an IOLTA Trust Account or a Client Trust Account established under this Rule. (2) IOLTA Trust Accounts. Every IOLTA Trust Account shall comply with the following provisions: (A) The lawyer/firm shall maintain all client funds that are either nominal in amount or to be held for a short period of time in an IOLTA Trust Account. (B) No client may elect whether his/her funds should be deposited in an IOLTA Trust Account, receive interest or dividends earned on funds in an IOLTA Trust Account, or compel a lawyer/firm to invest funds that are18 nominal in amount or to be held for a short period of time in a Client Trust Account. (C) The determination of whether a client’s funds are nominal in amount or
to be held for a short period oftime rests solely in the soundjudgment of each lawyer/firm. No charge of professional misconduct or ethical impropriety shallresult from a lawyer’s exercise ofgood faithjudgment in that regard. (D) To determine if a client’s funds should be deposited in an IOLTA Trust Account, a lawyer/firm may be guided by considering: (i) the amount of interest the funds would earn during the period they are expectedto be deposited; (ii) the costs of establishing and administering the account, including the lawyer’s/firm’s fees, accounting fees and tax reporting requirements; (iii) the amount of funds involved, the period of time they are expected to be held and the financial institution’s minimum balance requirements and service charges; (iv) the financial institution’s ability to calculate and pay interest to individual clients; and (v) the likelihood of delay in the relevant transaction or proceeding. (E) The lawyer/firm shall require the financial institution in which the IOLTA Trust Account is established to: (i) remit to the Montana Justice Foundation, at least quarterly, all interest or dividends on the average monthly balance in the IOLTA Trust Account, or as otherwise computed according to the institution’s standard accounting practices, less reasonable service fees, if any; (ii) with each remittance, provide the Montana Justice Foundation and the lawyer/firm with a statement showing for which lawyer/firm the remittance is sent, the period covered, the rate of interest applied, the total amount ofinterest earned, any service fees assessed against the account and the net amount of interest remitted; (iii) charge no fees against an IOLTA Trust Account greater than fees charged to non

-lawyer depositors for similar accounts, or which are otherwise unreasonable; and (iv) collectno fees from the principal deposited in the IOLTA Trust Account. (F) Annually the Montana Justice Foundation shall make available a list of all financial institutions offering IOLTA accounts and meeting this Rule’s IOLTA depository qualifying requirements. Lawyers/firms shall be entitled
to rely on the most recently published list for purposes of IOLTA Rule compliance. The Montana Justice Foundation shall pay all service charges incurred in operating an IOLTA Trust Account from IOLTA funds, to the19 extent the charges exceed those incurred in operating non

-interest

-bearing checking accounts at the same financial institution. (G) Confidentiality. The Montana Justice Foundation shall protect the confidentiality of information regarding Trust Accounts pursuant to this Rule. (3) Non

-IOLTA client Trust Accounts. All client funds shall be deposited in an IOLTA Trust Account, unless they are deposited in a separate interest

-bearing account for a particular client’s matter with the net interest paid to the client. Such interest must be held in trust as the property ofthe client as provided in this Rule for the principal funds of the client. (d) A lawyer/firm is exempt from this Rule’s requirements if: (1) the nature of their practice is such that no client funds are ever received requiring a Trust Account; (2) the lawyer practices law in another jurisdiction and not in Montana; (3) the lawyer is a full

-time judge, or government, military or inactive lawyer; or (4) the Montana Justice Foundation’s Board of Directors, on its own motion, exempts the lawyer/firm from participation in the program for a period of no more than two years when: (A) service charges on the lawyer’s/firm’s Trust Account equal or exceed any interest generated; or (B) no financial institution in the county where the lawyer/firm does business will accept IOLTA accounts. (e) Lawyer filings and records. (1) Filings. Each lawyer/firm shall file an annual certificate ofcompliancewith or exemption from this Rule with the Montana Justice Foundation. The certification
must include the name of the lawyer/firm listed on the account, the account number, and the financial institution name and address. The certification may be made in conjunction with the annual dues billing process. Failure to provide the certification may result in suspension from the practice of law in this state until the lawyer complies with the requirements of this Rule. (2) Records. Lawyer trust accounts shall be maintained as prescribed by the Montana Supreme Court in the “Trust Account Maintenance and Audit Requirements” (adopted February 27, 1989). (f) Implementation. Implementation will be effected through this Rule and the Rules of the State Bar of Montana, all as amended and approved by the Montana Supreme Court.

**RULE 1.19: SALE OF LAW PRACTICE** A lawyer or a law firm may sell or purchase a law practice, including good will, ifthe following conditions are satisfied: (a) The seller ceases to engage in the private practice oflaw in the geographic area in which the practice has been conducted. (b) The entire practice is sold to one or more lawyers or law firms. (c) Actual written notice is given to each of the seller’s clients regarding:20

(1) the proposed sale; (2) the client’s right to retain other counsel or to take possession of the file; and (3) the fact that the client’s consent to the salewillbepresumed ifthe client does
not take any action or does not otherwise objectwithinninety (90) days ofreceipt of the notice. Ifa client cannot be given notice, the representation ofthat client may be transferred to the purchaser only upon entry ofan order so authorizing by a court havingjurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file. (d) The fees charged clients shall not be increased by reason of the sale.

**RULE 1.20: DUTIES TO PROSPECTIVE CLIENTS**  (a) A person who consults with or has had consultations 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 consultations with a prospective client shall not use or reveal information learned in the consultation(s), except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject toparagraph (b) shallnotrepresent a clientwith interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). Ifa 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) Representation is permissible if both the affected client and the prospective client have given informed consent, confirmed in writing, or: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the prospective client.

**COUNSELOR**

**RULE 2.1: ADVISOR** In representing a client, a lawyer shall exercise independent professionaljudgment 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.

**RULE 2.2: EVALUATION FOR USE BY THIRD PERSONS** (a) A lawyer may provide an evaluation of a matter affecting a client for the use of

someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.21

(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

**RULE 2.3: LAWYERS SERVING AS THIRD**

**- PARTY NEUTRAL**  (a) A lawyer serves as a third

-partyneutralwhen the lawyer assists two or morepersons who are not clients of the 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, settlement master, mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. (b) A lawyer serving as a third

-party neutral shall inform all parties that the lawyer is not representing them. The lawyer shall explain the difference between the lawyer’s role as a third

-party neutral and a lawyer’s roleas one who represents a client.

**ADVOCATE**

**RULE 3.1: MERITORIOUS CLAIMS AND CONTENTIONS** (a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein: (1) without having first determined through diligent investigation that there is a bona fide basis in law and fact for the position to be advocated; (2) for the purpose ofharassment, delay, advancement ofa nonmeritorious claim or solely to gain leverage; or (3) to extend, modify or reverse existing law unless a bona fide basis in law and fact exists for advocating doing so. (b) A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

**RULE 3.2: EXPEDITING LITIGATION**  A lawyer shall makereasonable efforts to expedite litigation consistentwith the interests of the client.

**RULE 3.3: CANDOR TOWARD THE TRIBUNAL** (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position ofthe client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s22

client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial
measures, including, ifnecessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, ifnecessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyerthatwill enable the tribunal to make an informed decision,whether or not the facts are adverse.

**RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL** A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence, unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge offacts 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 (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyerreasonablybelieves that theperson’s interests willnotbe adversely affected by refraining from giving such information.

**RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL** A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person except as permitted by law; or23

(c) engage in conduct intended to disrupt a tribunal.

**RULE 3.6: TRIAL PUBLICITY** (a) Alawyerwho is participating or has participated in the investigation or litigation of a
matter shall not makean extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means ofpublic communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) awarning ofdanger concerning thebehavior ofaperson involved,when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation andfamily status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity ofinvestigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect ofrecent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

**RULE 3.7: LAWYER AS WITNESS** (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value oflegal services rendered in the
case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.24

**RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR** The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised ofthe right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt ofthe accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public ofthe nature and extent ofthe prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accusedand exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule consistent with the Confidential Criminal Justice Information Act.

**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 ofRules 3.3(a) through (c), 3.4(a) through (c), and 3.5.

**OTHER THAN CLIENTS**

**RULE 4.1: TRUTHFULNESS IN STATEMENT TO OTHERS** In the courseof representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a thirdpersonwhen disclosure isnecessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule25

1.6.

**RULE 4.2:**  **C OMMUNICATION**  **WITH PERSON**  **REPRESENTED BY**  **COUNSEL** (a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knowsto be represented by another lawyer in the matter,unless the lawyerhas the consent ofthe other lawyer or is authorized to do soby law or a court order. (b) An otherwiseunrepresentedperson towhom limitedrepresentation isbeingprovided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for
purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which,he or she is to communicate onlywith the limitedrepresentation lawyer as to the subject matter within the limited scope of the representation.

**RULE 4.3: DEALING WITH UNREPRESENTED PERSON** (a) In dealing on behalfof 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 misunderstands 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, ifthe 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. (b) An otherwiseunrepresentedperson towhom limitedrepresentation isbeingprovided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for
purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which,he or she is to communicate onlywith the limitedrepresentation lawyer as to the subject matter withinthe limited scope of the representation.

**RULE 4.4: RESPECT FOR RIGHTS OF THIRD PERSONS** (a) In representing a client, a lawyer shall notuse means that have no substantial purpose other than to em

barrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

**LAW FIRMS AND ASSOCIATIONS**

**RULE 5.1:**  **R ESPONSIBILITIES**  **OF PARTNERS,**  **MANAGERS, AND** 26

**SUPERVISORY LAWYERS** (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules ofProfessional Conduct. (c) A lawyerwithin a firm shallberesponsible for another lawyer in the firm’s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies or ignores the conduct involved; or (2) the lawyer is apartner orhas comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows ofthe conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

**RULE 5.2: RESPONSIBILITIES OF A SUBORDINATE LAWYER**  (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if the lawyer
acts in accordance with the supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

**RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS** With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall makereasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that theperson’s conduct is compatiblewith theprofessional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge ofthe specific conduct, ratifies or ignores the conduct involved; or (2) the lawyer is apartner orhas comparable managerial authority in the law firm in which the person is em ployed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.27

**RULE 5.4: PROFESSIONAL INDEPENDENCE OF A LAWYER** (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled or disappeared lawyer may, pursuant to the provisions of Rule 1.19, pay to the estate or other representative of that lawyer the agreed

-upon purchase price; (3) a lawyer or law firm may include nonlawyer em ployees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit

sharing arrangement; and (4) a lawyer may share court

-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. (b) A lawyer shallnot form a partnership with anonlawyer ifany ofthe activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professionaljudgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereofor occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professionaljudgment of a lawyer.

**RULE 5.5: UNAUTHORIZED PRACTICE OF LAW** (a) A lawyer shall not: (1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (2) assist a person who is not a member ofthe bar in the performance ofactivity that constitutes the unauthorized practice of law. (b) A lawyer admitted in another jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this state to the lawyer’s employer or its organizational affiliates provided that those legal services are not services for which Montana requires pro hac vice admission and, when provided by a foreign lawyer and requiring advice on the law of this or another jurisdiction of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice. For purposes of this subsection, the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted28

to practice as lawyers or counselors at law orthe equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.

**RULE 5.6: RESTRICTIONS ON RIGHT TO PRACTICE** A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, em ployment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.

**PUBLIC SERVICE**

**RULE 6.1: PRO BONO PUBLICO SERVICE** Every lawyer has a professional responsibility to provide legal services to those unable to
pay. A lawyer should render at least fifty (50) hours ofpro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority ofthe fifty (50) hours oflegal services without fee or expectation of fee to: (1) persons of limited means; or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and (b) provide additional services through: (1) delivery oflegal services at no fee or substantially reduced fee to individuals,
groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate; (2) delivery oflegal services at a substantially reduced fee to persons oflimited

means; or (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

**RULE 6.2 : ACCEPTING APPOINTMENTS**  A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the29

lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client

lawyer relationship or the lawyer’s ability to represent the client.

**RULE 6.3: MEMBERSHIP IN LEGAL SERVICES ORGANIZATION** A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves personshaving interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision would be incompatible with the lawyer’s obligations to a client under Rule 1.7; or (b) where the decision could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

**RULE 6.4: LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS** A lawyer may serve as a director, officer or member of an organization involved in reform ofthe law or its administration notwithstanding that the reform may affect the interests ofa client ofthe lawyer. When the lawyer knows that the interests ofa client
may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

**RULE 6.5:**  **N ONPROFIT**  **AND COURT** 

**- ANNEXED**  **LIMITED LEGAL**  **SERVICES PROGRAMS** (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization

or court, provides short

-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the
matter:(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter. (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.

**INFORMATION ABOUT LEGAL SERVICES**

**RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES** A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false if it contains a material misrepresentation of fact or law. A misleading communication includes, but is not limited to those that: (a) omits a fact as a result ofwhich the statement considered as a whole is materially misleading;30

(b) is likely to create an unjustified expectation about results the lawyer can achieve; (c) proclaims results obtained on behalf of clients, such as the amount of a damage award

orthe lawyer’srecord in obtaining favorable verdicts or settlements,without stating that past results afford no guarantee of future results and that every case is different andmust be judged on its own merits; (d) states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; (e) compares the quality of a lawyer’s or a law firm’s services with other lawyers’ services, unless the comparison can be factually substantiated; (f) advertises for a specific type of case concerning which the lawyer has neither experience nor competence; (g) indicates an area of practice in which the lawyer routinely refers matters to other lawyers, without conspicuous identification of such fact; (h) contains any paid testimonial about, or endorsement of, the lawyer without conspicuous identification ofthe fact that payments have been made for the testimonial or endorsement; (i) contains any simulated portrayal of a lawyer, client, victim, scene, or event without

conspicuous identification of the fact that it is a simulation; (j) provides an office address for an office staffed only part time or by appointment only, without conspicuous identification of such fact; (k) states that legal services are available on a contingent or no

-recovery, no

-fee basis without stating conspicuously that the client mayberesponsible for costs or expenses, if that is the case; or (l) advertises for legal services without identifying the jurisdictions in which the lawyer is licensed topractice.

**RULE 7.2: ADVERTISING** (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) Alawyer shall not give anything ofvalue to a person for recommending the lawyer’s services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2)pay theusual charges of a legal serviceplan or anot

-for

-profit lawyerreferral service; and (3) pay for a law practice in accordance with Rule 1.19. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

**RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CL IENTS**  (a) A lawyer shall not by in

-person, live telephone or real

-time electronic contact solicit professional em

ployment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:31

(1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional em ployment from a prospective client by written, recorded or electronic communication or by in

-person, telephone or real

-time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; (2) the solicitation involves coercion, duress or harassment; (3) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person cannot exercise reasonable judgment in employing a lawyer; or (4) the lawyer reasonably should know that the person is already represented by another lawyer. (c) Every written, recorded or electronic communication from a lawyer soliciting professional em

ployment from aprospective client known tobe inneed oflegal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a) (2). (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in

-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. Lawyers who participate in a legal services plan
must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See Rule 8.4(a)

.

**RULE 7.4:**  **C OMMUNICATION**  **OF FIELDS**  **OF PRACTICE**  **AND SPECIALIZATION**  (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may also communicate that his/her practice is limited to

or concentrated in a particular field of law, if such communication does not imply an unwarranted expertise in the field so as to be false or misleading under Rule 7.1. (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Of

fice may use the designation “Patent Attorney” or a substantially similar designation. (c) A lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty” or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and32

(2) the name of the certifying organization is clearly identified in the communication.

**RULE 7.5: FIRM NAMES AND LETTERHEADS** (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1. (b) A law firm with offices in more than one jurisdiction may use the same name or other professional (e.g., website) designation in each jurisdiction, but identification of the lawyers in an office ofthe firm shall indicate thejurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name ofa lawyer holding a public office shall not be used in the name ofa law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

**MAINTAINING THE INTEGRITY OF THE PROFESSION**

**RULE 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS** An applicant for admission to the bar, or a lawyer in connection with a bar admission application or inconnection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a factnecessary to correct a misapprehension knownby the person to have arisen in the matter, or 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.

**RULE 8.2: JUDICIAL AND LEGAL OFFICIALS** (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or ofa candidate for election or appointment to judicial or legal office. (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the code of judicial conduct.

**RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT** (a) A lawyer who knows that another lawyer has committed a violation ofthe Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that ajudge has committed a violation of applicable code of33

judicial conduct thatraises a substantial question as to thejudge’s fitness for office shall inform the appropriate authority. (c) This Rule does notrequire disclosure ofinformation otherwiseprotectedby Rule 1.6

or information gained by a lawyer orjudge while participating in an approved lawyers assistance program.

**RULE 8.4: MISCONDUCT** It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules ofProfessional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist ajudge orjudicial officer in conduct that is a violation ofapplicable code of judicial conduct or other law.

**RULE 8.5: JURISDICTION AND CERTIFICATION**  Alawyer who is not an active member in good standing ofthe State Bar of Montana and who seeks to practice in any state or federal court located in this State pro hac vice, by motion, or before being otherwise admitted to the practice of law in this State, shall, prior
to engaging in the practice oflaw in this State, certify in writing and under oath to this Court that, except as to Rules 6.1 through 6.4,he or shewillbeboundby these Rules of Professional Conduct inhis orherpractice oflaw in this State and willbe subject to the disciplinary authority of this State. A copy of said certification shall be mailed, contemporaneously, to the business offices of the State Bar of Montana in Helena, Montana. A lawyer not admitted to practice in this State is subject to the disciplinary authority of this State for conduct that constitutes a violation of these Rules and that: (1) involves the practice oflaw in this State by that lawyer; (2) involves that lawyer holding himselfor herselfout as practicing law in this State; (3) advertises, solicits, or offers legal services in this State; or (4) involves the practice of law in this State by another lawyer over whom that lawyer has the obligation of supervision or control. A lawyer shall not be subject to discipline ifthe lawyer’s conduct conforms to the rules of ajurisdiction in which the lawyer reasonably believes the predominant effect ofthe lawyer’s conduct will occur.