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 › Section 81.2 - Scope

Current through Register Vol. 54, No. 28, July 13, 2024
(14) 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" or "should," 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.
(15) 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.
					 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.
(16) 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.
					 See 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.
(17)
					 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.
(18) 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.
(19) Violation of a
					 Rule should not itself give rise 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 duty.
(20) These Rules were first
					 derived from the Model Rules of Professional Conduct adopted by the American
					 Bar Association in 1983 as amended. Those Rules were subject to thorough review
					 and restatement through the work of the ABA Commission on Evaluation of the
					 Rules of Professional Conduct ("Ethics 2000 Commission"), and have been subject
					 to certain modifications in their adoption in Pennsylvania. The Rules omit some
					 provisions that appear in the ABA Model Rules of Professional Conduct. The
					 omissions should not be interpreted as condoning behavior proscribed by the
					 omitted provision.
(21) 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.