North Carolina Administrative Code › Title 27 - STATE BAR › Chapter 02 - RULES OF PROFESSIONAL CONDUCT OF THE NORTH CAROLINA STATE BAR › Section .0100 - CLIENT LAWYER RELATIONSHIP › Section 02 RULE 0.02 - SCOPE

Current through Register Vol. 39, No. 2, July 15, 2024
(a) The Rules of Professional Conduct are
				rules of reason. They should be interpreted with reference to the purposes of
				legal representation and of the law itself. Some of the 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 professional judgment. 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's professional role.
				Many of the Comments use the term "should." Comments do not add obligations to
				the Rules but provide guidance for practicing in compliance with the
				Rules.
(b) The Rules presuppose a
				larger legal context shaping the lawyer's role. That context includes court
				rules and statutes relating to matters of licensure, laws defining specific
				obligations of lawyers, and substantive and procedural law in general. The
				Comments are sometimes used to alert lawyers to their responsibilities under
				such other law.
(c) 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.
(d) Furthermore, for purposes of determining
				the lawyer's authority and responsibility, principles of substantive law
				external to these Rules determine whether a client-lawyer relationship exists.
				Most of the 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. Rule 1.18. Whether a
				client-lawyer relationship exists for any specific purpose can depend on the
				circumstances and may be a question of fact.
(e) Under various legal provisions, 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. For 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 adverse judgment. 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 may
				be 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.
(f) Failure to
				comply with an obligation or prohibition imposed by a Rule is a basis 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 of the violation, extenuating factors, and whether there have been
				previous violations.
(g) Violation
				of a Rule should not give rise itself to a cause of action 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 to provide guidance to lawyers and to
				provide a structure for regulating conduct through disciplinary agencies. They
				are not designed to be a basis for civil liability. Furthermore, the purpose of
				the Rules can be subverted when they are invoked by opposing parties as
				procedural weapons. The fact that a Rule is a just basis for a lawyer's
				self-assessment, or for sanctioning a lawyer under the administration of a
				disciplinary authority, does not imply that an antagonist in a collateral
				proceeding or transaction has standing to seek enforcement of the Rule.
				Accordingly, nothing in the Rules should be deemed to augment any substantive
				legal duty of lawyers or the extra-disciplinary consequences of violating such
				a Rule.
(h) The Comment
				accompanying each Rule explains and illustrates the meaning and purpose of the
				Rule. The Preamble and this note on Scope provide general orientation. The
				Comments are intended as guides to interpretation, but the text of each Rule is
				authoritative. Research notes were prepared to compare counterparts in the
				original Rules of Professional Conduct (adopted 1985, as amended) and to
				provide selected references to other authorities. The notes have not been
				adopted, do not constitute part of the Rules, and are not intended to affect
				the application or interpretation of the Rules and Comments.
Authority
				  G.S.
				  84-23;
Eff. July 24,
				  1997;
Amended Eff. February 5, 2004; February 27,
				  2003.