Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › CLIENT-LAWYER RELATIONSHIP › Rule 1.0 - Terminology

Current through Register Vol. 54, No. 28, July 13, 2024
(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) "Confirmed in
						writing," when used in reference to the informed consent of a person, denotes
						an informed consent that is given in writing by the person or a writing that a
						lawyer promptly transmits to the person confirming an oral informed consent.
						See paragraph (e) 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.
(c)
						"Firm" or "law firm" denotes a lawyer or lawyers in a law partnership,
						professional corporation, sole proprietorship or other association authorized
						to practice law; or lawyers employed in a legal services organization or the
						legal department of a corporation or other organization.
(d) "Fraud" or "fraudulent" denotes conduct
						that is fraudulent under the substantive or procedural law of the applicable
						jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the consent 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.
(f) "Knowingly," "Known," or "Knows" denotes
						actual knowledge of the fact in question. A person's knowledge may be inferred
						from circumstances.
(g) "Partner"
						denotes an equity owner in a law firm, whether in the capacity of a partner in
						a partnership, a shareholder in a professional corporation, a member in a
						limited liability company, a beneficiary of a business trust, a member of an
						association authorized to practice law, or otherwise.
(h) "Reasonable" or "Reasonably" when used in
						relation to conduct by a lawyer denotes the conduct of a reasonably prudent and
						competent lawyer.
(i) "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.
(j) "Reasonably should know" when used in
						reference to a lawyer denotes that a lawyer of reasonable prudence and
						competence would ascertain the matter in question.
(k) "Screened" denotes the isolation of a
						lawyer from any participation in a matter through the timely imposition of
						procedures within a firm that are reasonably adequate under the circumstances
						to protect information that the isolated lawyer is obligated to protect under
						these Rules or other law.
(l)
						"Substantial" when used in reference to degree or extent denotes a material
						matter of clear and weighty importance.
(m) "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 argument by a
						party or parties, will render a binding legal judgment directly affecting a
						party's interests in a particular matter.
(n) "Writing" or "written" denotes a tangible
						or electronic record of a communication or representation, including
						handwriting, typewriting, printing, photostating, photography, audio or video
						recording, and electronic communications. A "signed" writing includes an
						electronic sound, symbol or process attached to or logically associated with a
						writing and executed or adopted by a person with the intent to sign the
						writing.
Comment:
Confirmed in Writing
(1) If it is not feasible to obtain or
						transmit a written confirmation at the time the client gives informed consent,
						then the lawyer must obtain or transmit it within a reasonable time thereafter.
						If a lawyer has obtained a client's informed consent, the lawyer may act in
						reliance on that agreement of consent so long as it is confirmed in writing
						within a reasonable time thereafter.
Firm
(2) The terms of any formal agreement between
						associated lawyers are relevant in determining whether they are a firm, as is
						the fact that they have mutual access to information concerning the clients
						they serve. Furthermore, it is relevant in doubtful cases to consider the
						underlying purpose of the Rule that is involved. A group of lawyers could be
						regarded as a firm for purposes of a rule that the same lawyer should not
						represent opposing parties in litigation, e.g., Rules
						1.7(a),
						1.10(a), while
						it might not be so regarded for purposes of a rule that information acquired by
						one lawyer is attributed to another, e.g., Rule 1.10(b).
(3) With respect to the law department of an
						organization, including the government, there is ordinarily no question that
						the members of the department constitute a firm within the meaning of the Rules
						of Professional Conduct. There can be uncertainty, however, as to the identity
						of the client. For example, it may not be clear whether the law department of a
						corporation represents a subsidiary or an affiliated corporation, as well as
						the corporation by which the members of the department are directly employed. A
						similar question can arise concerning an unincorporated association and its
						local affiliates.
(4) Similar
						questions can also arise with respect to lawyers in legal aid and legal
						services organizations. Depending upon the structure of the organization, the
						entire organization or different components of it may constitute a firm or
						firms for purposes of these Rules.
Fraud
(5) When used in these Rules, the terms
						"fraud" and "fraudulent" refer to conduct that is characterized as such under
						the substantive or procedural law of the applicable jurisdiction and has a
						purpose to deceive. This does not include merely negligent misrepresentation or
						negligent failure to apprise another of relevant information. For purposes of
						these Rules, it is not necessary that anyone has suffered damages or relied on
						the misrepresentation or failure to inform.
Informed Consent
(6) Many of the Rules of Professional Conduct
						require the lawyer to obtain the informed consent of a client or other person
						(e.g., a former client or, under certain circumstances, a prospective client)
						before accepting or continuing representation or pursuing a course of conduct.
						See, e.g., Rules
						1.2(c),
						1.6(a),
						1.7(b),
						1.8(a)(3), (b), (f) and
						(g),
						1.9(a) and (b),
						1.10 (d),
						1.11(a)(2) and
						(d)(2)(i),
						1.12(a) and
						1.18(d)(1). The
						communication necessary to obtain such consent will vary according to the Rule
						involved and the circumstances giving rise to the need to obtain informed
						consent. The lawyer must make reasonable efforts to ensure that the client or
						other person possesses information reasonably adequate to make an informed
						decision. Ordinarily, this will require communication that includes a
						disclosure of the facts and circumstances giving rise to the situation, any
						explanation reasonably necessary to inform the client or other person of the
						material advantages and disadvantages of the proposed course of conduct and a
						discussion of the client's or other person's options and alternatives. In some
						circumstances it may be appropriate for a lawyer to advise a client or other
						person to seek the advice of other counsel. A lawyer need not inform a client
						or other person of facts or implications already known to the client or other
						person; nevertheless, a lawyer who does not personally inform the client or
						other person assumes the risk that the client or other person is inadequately
						informed and the consent is invalid. In determining whether the information and
						explanation provided are reasonably adequate, relevant factors include whether
						the client or other person is experienced in legal matters generally and in
						making decisions of the type involved, and whether the client or other person
						is independently represented by other counsel in giving the consent. Normally,
						such persons need less information and explanation than others, and generally a
						client or other person who is independently represented by other counsel in
						giving the consent should be assumed to have given informed consent.
(7) Obtaining informed consent will usually
						require an affirmative response by the client or other person. In general, a
						lawyer may not assume consent from a client's or other person's silence.
						Consent may be inferred, however, from the conduct of a client or other person
						who has reasonably adequate information about the matter. Rule
						1.8 (a) requires
						that a client's consent be obtained in a writing signed by the client. For a
						definition of "signed," see paragraph (n). The term informed consent in Rule
						1.0 and the guidance provided in
						the Comment should be understood in the context of legal ethics and is not
						intended to incorporate jurisprudence of medical malpractice law.
Screened
(8) This definition applies to situations
						where screening of a personally disqualified lawyer is permitted to remove
						imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or
						1.18.
(9) The purpose of screening
						is to assure the affected parties that confidential information known by the
						personally disqualified lawyer remains protected. The personally disqualified
						lawyer should acknowledge the obligation not to communicate with any of the
						other lawyers in the firm with respect to the matter. Similarly, other lawyers
						in the firm who are working on the matter should be informed that the screening
						is in place and that they may not communicate with the personally disqualified
						lawyer with respect to the matter. Additional screening measures that are
						appropriate for the particular matter will depend on the circumstances. To
						implement, reinforce and remind all affected lawyers of the presence of the
						screening, it may be appropriate for the firm to undertake such procedures as a
						written undertaking by the screened lawyer to avoid any communication with
						other firm personnel and any contact with any firm files or other information,
						including information in electronic form, relating to the matter, written
						notice and instructions to all other firm personnel forbidding any
						communication with the screened lawyer relating to the matter, denial of access
						by the screened lawyer to firm files or other information, including
						information in electronic form, relating to the matter, and periodic reminders
						of the screen to the screened lawyer and all other firm personnel.
(10) In order to be effective, screening
						measures must be implemented as soon as practical after a lawyer or law firm
						knows or reasonably should know that there is a need for
						screening.