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Complete Home & Office Legal Guide
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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-08-16
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/* The Florida adopted text of the Model Rules of Professional
Conduct follow. As usual, the "model" codes are anything but
model in implementation. However, this is a very generic form of
adoption, and in all material respects follow the model text.
These rules are the legal professions attempt to "modernize" the
view of the legal profession in the early 1980's. The former Code
of Professional Responsibility spoke solely to the attorney as an
advocate and representative of his or her client. The Model Rules
add new roles of intermediary, negotiator to that of advocate. */
RULES OF PROFESSIONAL CONDUCT
PREAMBLE: A LAWYER'S RESPONSIBILITIES
A lawyer is a representative of clients, an officer of the
legal system, and a public citizen having special responsibility
for the quality of justice.
As a representative of clients, a lawyer performs various
functions. As an adviser, a lawyer provides a client with an
informed understanding of the client's legal rights and
obligations and explains their practical implications. As an
advocate, a lawyer zealously asserts the client's position under
the rules of the adversary system. As a negotiator, a lawyer
seeks a result advantageous to the client but consistent with
requirements of honest dealing with others. As an intermediary
between clients, a lawyer seeks to reconcile their interests as
an adviser and, to a limited extent, as a spokesman for each
client. A lawyer acts as an evaluator by examining a client's
legal affairs and reporting about them to the client or to
others.
In all professional functions a lawyer should be competent,
prompt, and diligent. A lawyer should maintain communications
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 by law.
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. A lawyer should demonstrate respect for the
legal system and for those who serve it, including judges, 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.
As a public citizen, a lawyer should seek improvement of the
law, the administration of justice, and the quality of service
rendered by the legal profession. As a member of a learned
profession, a lawyer should cultivate knowledge of the law beyond
its use for clients, employ that knowledge in reform of the law,
and work to strengthen legal education. A lawyer should be
mindful of deficiencies in the administration of justice and of
the fact that the poor, and sometimes persons who are not poor,
cannot afford adequate legal assistance, and should therefore
devote professional time and civic influence in their behalf. A
lawyer should aid the legal profession in pursuing these
objectives and should help the bar regulate itself in the public
interest.
Many of the lawyer's professional responsibilities are
prescribed in the Rules of Professional Conduct and in
substantive and procedural law. A lawyer should strive to attain
the highest level of skill, to improve the law and the legal
profession, and to exemplify the legal profession's ideals of
public service.
A lawyer's responsibilities as a representative of clients,
an officer of the legal system, and a public citizen are usually
harmonious. Zealous advocacy is not inconsistent with justice.
Moreover, unless violations of law or injury to another or his
property are involved, preserving client confidences ordinarily
services 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.
In the practice of law conflicting responsibilities are often
encountered. Difficult ethical problems may arise from a
conflict between a lawyer's responsibility to a client and the
lawyer's own sense of personal honor, including obligations to
society and the legal profession. The Rules of Professional
Conduct prescribe terms for resolving such conflicts. Within the
framework of these rules many difficult issues of professional
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.
Lawyers are officers of the court and they are responsible to
the judiciary for the propriety of their professional activities.
Within that context, the legal profession has been granted powers
of self-government. Self-regulation helps maintain the legal
profession's independence from undue government domination. An
independent legal profession is an important force in preserving
government under law, for abuse to legal authority is more
readily challenged by a profession whose members are not
dependent on the executive and legislative branches of government
for the right to practice. Supervision by an independent
judiciary, and conformity with the rules the judiciary adopts for
the profession, assures both independence and responsibility.
Thus, every lawyer is responsible for observance of the Rules
of Professional Conduct. A lawyer should also aid in securing
their observance by other lawyers. Neglect of these
responsibilities compromises the independence of the profession
and the public interest which it serves.
Scope:
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 of "shall" or "shall not." These
define proper conduct for purposes of professional discipline.
Others, generally cast in the terms "may," are permissive and
define areas under the rules in which the lawyer has professional
discretion. 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.
/* When is a rule not a rule? When it is a recommendation, or as
one learned scholar put it, an "official nag." */
The comment accompanying each rule explains and illustrates
the meaning and purpose of the rule. The comments are intended
only as guides to interpretation, whereas the text of each rule
is authoritative. Thus, comments, even when they use the term
"should," do not add obligations to the rules but merely provide
guidance for practicing in compliance with the rules.
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. Compliance with the rules, as with all law in an open
society, depends primarily upon understanding and voluntary
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 no however, exhaust the moral and
ethical considerations that should inform a lawyer, for no
worthwhile human activity can be completely defined by the legal
rules. The rules simply provide a framework for the ethical
practice of law.
Furthermore, for purposes of