1 McGeorge School of Law Sacramento MCLE Friday, January 29, 2016 Emcee Allison L. Harvey, 07 The Law Office of Allison L. Harvey McGeorge Schoool of Law 3200 Fifth Ave. Sacramento, CA 95817
3 Agenda 8:30 a.m. Check-In 8:50 a.m. Welcome Allison L. Harvey, Esq. 07, The Law Office of Allison L. Harvey 9:00 a.m. Sherlock Holmes and the Threat to the Rule of Law Anthony M. Kennedy Inns of Court Team MCLE Category: Ethics 11:00 a.m. Break 11:15 a.m. Elimination of Bias: A Brief Introduction to Transgender Legal Issues Professor Larry Levine, McGeorge School of Law and special guests Jo Michael, Esq. 12, and Mikayla Connell from Equality California MCLE Category: Elimination of Bias 12:15 p.m. Break for Lunch 1:00 p.m. Ethical Dilemmas Professor John Sprankling, McGeorge School of Law MCLE Category: Ethics 2:00 p.m. International Guidance on Lawyers Rights, Responsibilities and Professional Conduct Dr. Hong Tang, Esq. 05 MCLE Category: Ethics 3:00 p.m. Break 3:15 p.m. Substance Abuse in the Legal Profession John Davidson, Esq. 13, Colantuono, Highsmith & Whatley MCLE Category: Competence Issues 4:15 p.m. Closing Remarks
5 sherlock holmes and the threat to the rule of law Anthony M. Kennedy Inns of Court Team
6 SHERLOCK HOLMES AND THE THREAT TO THE RULE OF LAW Anthony M. Kennedy American Inns of Court - Team 3 Nov 17, 2015 RULES OF PROFESSIONAL CONDUCT Rule Advising the Violation of Law A member shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid. A member may take appropriate steps in good faith to test the validity of any law, rule, or ruling of a tribunal. Rule Trial Conduct In presenting a matter to a tribunal, a member: (D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and STATUTES Business and Professions Code section It is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state. California Code of Civil Procedure section In any case in which a notice was required pursuant to subdivision (e) of Section 664.5, the Attorney General shall have the right to intervene and participate in any appeal taken therefrom. These rights shall apply regardless of whether the Attorney General participated in the case in the trial court. However, the Attorney General has no direct right to appeal. If the Attorney General elects not to intervene and participate in the appeal, he or she shall file a statement with the Legislature and the Judicial Council stating the reason or reasons for the decision not to intervene and participate in the appeal. This statement may be in the form of an annual report to the Legislature and Judicial Council and that report shall be a matter of public record. California Code of Civil Procedure section (e) The Judicial Council shall, by January 1, 1999, adopt a rule of court for the purposes of providing that, upon entry of judgment in a contested action or special proceeding in which a state statute or regulation has been declared unconstitutional by the court, the Attorney General is promptly notified of the judgment and that a To access Inn of Court Members Website 1. Go to 2. To get to Members only section, click on Members Only 3. Log in using generic member name (i.e., Kennedy) 4. Password Ethics 5. Click on Presentation Materials and then click on the presentation s title to access materials.
7 certificate of that mailing is placed in the court's file in the cause. CASES Perry v. Brown, (2011), 52 Cal.4 th 1116 Because of the risk that public officials may not defend an initiative's validity with vigor, a court should ordinarily permit the official proponents of an initiative measure to intervene in an action challenging the validity of the measure in order to guard the people's right to exercise initiative power. Because official initiative proponents are permitted to intervene in order to supplement the efforts of public officials who may not defend the measure with vigor, it is appropriate to view the proponents as acting in an analogous and complementary capacity to those public officials, namely as asserting the people's interest (or, in other words, the State's interest) in the validity of a duly enacted law. Because permitting intervention by the initiative proponents would serve to guard the people's right to exercise initiative power, it is apparent that the official proponents of the initiative are participating on behalf of the people's interest, and not solely on behalf of the proponents' own personal interest. State of Texas, et al v. Johnson (USA), et al. Filed Nov 9, 2015, Fifth Circuit, case No ARTICLES Personal Responsibility and Work Opportunity Reconciliation Act of 1996 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 California Health and Safety Code section Compassionate Use Act of 1996 Controlled Substances Act - 21 U.S.C. 801 et. seq. Dream on: The Obama Administration s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause. The Bar Association of San Francisco, Opinion ; Issue May a California lawyer ethically represent a client in respect to a medical marijuana enterprise in California? The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No , interpreting Rules 3-110, and of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code sections 6067, 6068, subdivisions (a) and (c), and To access Inn of Court Members Website 1. Go to 2. To get to Members only section, click on Members Only 3. Log in using generic member name (i.e., Kennedy) 4. Password Ethics 5. Click on Presentation Materials and then click on the presentation s title to access materials.
9 elimination of bias: a brief introduction to transgender legal issues * Professor Larry Levine, McGeorge School of Law and special guests Jo Michael, Esq. 12, and Mikayla Connell from Equality California *Course materials will be available day of the event.
11 ethical dilemmas Professor John Sprankling, McGeorge School of Law
12 Ethical Dilemmas Professor John Sprankling January 29, Attorney Adam represents Sarah, the owner of a large apartment complex. Attorney Alice represents Bob, a potential buyer of the property. Alice sends Adam a written offer from Bob to purchase the property for $11,200,000 in cash. Adam phones Alice in response and says: Look Alice, Bob s price is far too low. Let s not kid around. Is this the highest price he is willing to offer? Alice replies: Yes. That s the most he would ever be willing to offer. Adam responds: Well, Bob better decide soon whether he really wants it or not. We ve got another buyer who will be submitting an offer next week. Assume (a) Alice knows Bob would offer up to $12,500,000 and (b) Adam is unaware of any other possible buyer or offer. 2. After a marathon bargaining session, Sarah and Bob reach agreement on the key points of a purchase agreement; they ask their respective attorneys to reduce the deal to writing. Adam and Alice negotiate smaller issues, including who will bear the risk of loss before close of escrow. They orally agree that Bob, the buyer, will bear the risk of loss. Sarah and Bob then meet together privately, discuss all the terms negotiated between Adam and Alice, and orally agree to all of these terms. Adam drafts a purchase agreement which contains all of the terms orally agreed upon, but accidentally omits the risk of loss clause. Alice notices the omission, but says nothing. Sarah and Bob execute the agreement. Assume that under state law the seller bears the risk of loss unless there is a contrary provision in the agreement.
13 Ethical Dilemmas: page 2 3. Before close of escrow, Adam discovers the omission of the risk of loss clause and demands that Alice have her client Bob execute a replacement agreement which contains the clause. Alice replies: I don t think I m going to advise Bob to do that. We knew the clause was missing when he signed the agreement. Adam responds: Then your dishonesty is the only reason the agreement was signed in that form. If you can t be reasonable about this, I m afraid that the State Bar may have to look into the matter. Women just can t be trusted! 4. Adam, billing at $500 per hour, sends his monthly bill to Sarah for his work on the transaction. The bill for his busiest day includes the following entries: (a) develop negotiation strategy during drive from home to airport: 0.9 ; (b) breakfast at airport: 0.7 ; (c) air travel from Sacramento to LA: 1.3 ; (d) lunch meeting with Alice: 1.0 ; (e) waiting time at airport before return flight: 2.1 ; (f) call to Alice from airport: 0.5 ; and (g) air travel from LA to Sacramento: 1.4. During the flight from Sacramento to Los Angeles, Adam worked on a matter for another client and billed 1.3 hours on that file; Adam did no work of any kind during his return flight. Adam was unable to reach Alice when he called her from the airport; although the incomplete phone call actually consumed 10 seconds, the policy of Adam s firm requires that he bill a minimum of 0.5 hours for any telephone call, completed or not.
14 Ethical Dilemmas: page 3 5. The uninsured apartment complex burns down, and Bob refuses to perform the agreement. Sarah, represented by Adam, sues Bob for breach of contract. Sarah s deposition is about to be taken, so she meets with Adam for a private preparation session. When Adam asks Sarah about the discussions she had with Bob concerning the risk of loss clause, Sarah responds: I really don t recall discussing it with him. Adam replies: Use your common sense. You must have known that you wanted the buyer to have the risk of loss. Wouldn t that have been your position? And so you must have discussed it with Bob. Sarah says: Well, I guess you re right. But don t worry about Bob. He won t live long enough to testify.
15 international guidance on lawyers rights, responsibilities and professional conduct Dr. Hong Tang, Esq. 05
17 Basic Principles on the Role of Lawyers Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990 Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia, their determination to establish conditions under which justice can be maintained, and proclaim as one of their purposes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion, Whereas the Universal Declaration of Human Rights enshrines the principles of equality before the law, the presumption of innocence, the right to a fair and public hearing by an independent and impartial tribunal, and all the guarantees necessary for the defence of everyone charged with a penal offence, Whereas the International Covenant on Civil and Political Rights proclaims, in addition, the right to be tried without undue delay and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, Whereas the International Covenant on Economic, Social and Cultural Rights recalls the obligation of States under the Charter to promote universal respect for, and observance of, human rights and freedoms, Whereas the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that a detained person shall be entitled to have the assistance of, and to communicate and consult with, legal counsel, Whereas the Standard Minimum Rules for the Treatment of Prisoners recommend, in particular, that legal assistance and confidential communication with counsel should be ensured to untried prisoners, Whereas the Safe guards guaranteeing protection of those facing the death penalty reaffirm the right of everyone suspected or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings, in accordance with article 14 of the International Covenant on Civil and Political Rights, Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power recommends measures to be taken at the international and national levels to improve access to justice and fair treatment, restitution, compensation and assistance for victims of crime, Whereas adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession, Whereas professional associations of lawyers have a vital role to play in upholding professional standards and ethics, protecting their members from persecution and improper
18 restrictions and infringements, providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest, The Basic Principles on the Role of Lawyers, set forth below, which have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general. These principles shall also apply, as appropriate, to persons who exercise the functions of lawyers without having the formal status of lawyers. Access to lawyers and legal services 1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings. 2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status. 3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources. 4. Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers. Special safeguards in criminal justice matters 5. Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence. 6. Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services. 7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than fortyeight hours from the time of arrest or detention. 8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a
19 lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials. Qualifications and training 9. Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law. 10. Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory. 11. In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups. Duties and responsibilities 12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice. 13. The duties of lawyers towards their clients shall include: (a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients; (b) Assisting clients in every appropriate way, and taking legal action to protect their interests; (c) Assisting clients before courts, tribunals or administrative authorities, where appropriate. 14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession. 15. Lawyers shall always loyally respect the interests of their clients. Guarantees for the functioning of lawyers 16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad;
20 and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics. 17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities. 18. Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions. 19. No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles. 20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority. 21. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time. 22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential. Freedom of expression and association 23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession. Professional associations of lawyers 24. Lawyers shall be entitled to form and join self governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference. 25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics. Disciplinary proceedings
21 26. Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms. 27. Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice. 28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review. 29. All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.
24 Resolution ICC-ASP/4/Res.1 Adopted at the 3 rd plenary meeting on 2 December 2005, by consensus ICC-ASP/4/Res.1 Code of Professional Conduct for counsel The Assembly of State Parties, Having regard to rule 8 of the Rules of Procedure and Evidence; Having regard to rule 20, sub-rule 3; Having regard to the consultations conducted by the Registrar with independent representative bodies of counsel or legal associations; Recognizing the general principles governing the practice and ethics of the legal profession; Recalling resolution ICC-ASP/3/Res.3, of 10 September 2004, whereby the Assembly of States Parties requested the Bureau of Assembly of States Parties to prepare an amended draft Code for adoption by the Assembly at its fourth session; Having regard to the Report of the Bureau on the draft Code of Professional Conduct for counsel, 1 submitted pursuant to the above resolution; Decides to adopt the Code of Professional Conduct for counsel, the text of which is annexed hereto. 1 ICC-ASP/4/21.
25 Annex Code of Professional Conduct for counsel Contents Chapter 1 General provisions Article 1 Scope Article 2 Use of terms Article 3 Amendment procedure Article 4 Primacy of the Code of Professional Conduct for counsel Article 5 Solemn undertaking by counsel Article 6 Independence of counsel Article 7 Professional conduct of counsel Article 8 Respect for professional secrecy and confidentiality Article 9 Counsel-client relationship Article 10 Advertising Chapter 2 Representation by counsel Article 11 Establishment of the representation agreement Article 12 Impediments to representation Article 13 Refusal by counsel of a representation agreement Article 14 Performance in good faith of a representation agreement Article 15 Communication between counsel and the client Article 16 Conflict of interest Article 17 Duration of the representation agreement Article 18 Termination of the representation Article 19 Conservation of files Article 20 Counsel s fees Article 21 Prohibitions Article 22 Remuneration of counsel in the framework of legal assistance Chapter 3 relations with the Court and others Article 23 Communications with the Chambers and judges Article 24 Duties towards the Court Article 25 Evidence Article 26 Relations with unrepresented persons Article 27 Relations with other counsel Article 28 Relations with persons already represented by counsel Article 29 Relations with witnesses and victims Chapter 4 Disciplinary regime Article 30 Conflict with other disciplinary regimes Article 31 Misconduct Article 32 Liability for conduct of assistants or other staff Article 33 The Commissioner Article 34 Filing a complaint of misconduct Article 35 Limitation period Article 36 Composition and management of the Disciplinary Board Article 37 Preliminary procedures Article 38 Complementarity of disciplinary measures
26 Article 39 Disciplinary procedure Article 40 Rights of counsel subject to the disciplinary procedure Article 41 Decisions by the Disciplinary Board Article 42 Sanctions Article 43 Appeals Article 44 Composition and management of the Disciplinary Appeals Board Chapter 5 Final Provisions Article 45 Entry into force Article 46 Publications
27 Code of Professional Conduct for counsel Chapter 1 General provisions Article 1 Scope This Code shall apply to defence counsel, counsel acting for States, amici curiae and counsel or legal representatives for victims and witnesses practising at the International Criminal Court, hereinafter referred to as counsel. Article 2 Use of terms 1. Unless otherwise defined in this Code, all terms are used as defined in the Statute, the Rules of Procedure and Evidence and the Regulations of the Court. 2. In this Code: - Court refers to the International Criminal Court; - associate refers to lawyers who practise in the same law firm as counsel; - national authority refers to the bar association of which counsel is a member or any other organ competent to regulate and control the activity of lawyers, judges, prosecutors or professors of law, or other qualified counsel according to rule 22, paragraph 1, of the Rules of Procedure and Evidence; - client refers to all those assisted or represented by counsel; - defence team refers to counsel and all persons working under his or her oversight; and - agreement refers to the oral or written legal relationship which binds counsel to his or her client before the Court. Article 3 Amendment procedure 1. States Parties, judges, the Registrar, counsel and independent organizations representing lawyers associations and counsel may submit proposals for amendments to this Code. Any proposal for amendments to this Code shall be submitted to the Registrar, together with explanatory material, in one or both working languages of the Court. 2. The Registrar shall transmit the proposals to the Presidency, together with a reasoned report prepared after consultation with the Prosecutor and, as appropriate, with any independent organization representing lawyers associations and counsel. 3. Any proposal to amend this Code, submitted by one or more States Parties, shall be transmitted by the Presidency to the Assembly of States Parties together with any comments the Presidency may have, taking into account the report of the Registrar.
28 4. Any proposal to amend this Code, other than one submitted by one or more States Parties, shall be transmitted by the Presidency to the Assembly of States Parties together with any comments the Presidency may have, taking into account the report of the Registrar. In such circumstances, the Presidency shall provide the Assembly of States Parties with the Presidency s reasoned recommendations as to whether or not any such proposal should be adopted. If the Presidency recommends adoption, it shall submit a draft amendment in relation to that proposal to the Assembly of States Parties for the purpose of adoption. 5. Amendments to this Code shall be adopted by the Assembly of States Parties in accordance with article 112, paragraph 7, of the Statute. Article 4 Primacy of the Code of Professional Conduct for counsel Where there is any inconsistency between this Code and any other code of ethics or professional responsibility which counsel are bound to honour, the terms of this Code shall prevail in respect of the practice and professional ethics of counsel when practising before the Court. Article 5 Solemn undertaking by counsel Before taking office, counsel shall give the following solemn undertaking before the Court: I solemnly declare that I will perform my duties and exercise my mission before the International Criminal Court with integrity and diligence, honourably, freely, independently, expeditiously and conscientiously, and that I will scrupulously respect professional secrecy and the other duties imposed by the Code of Professional Conduct for Counsel before the International Criminal Court. Article 6 Independence of counsel 1. Counsel shall act honourably, independently and freely. 2. Counsel shall not: (a) Permit his or her independence, integrity or freedom to be compromised by external pressure; or (b) Do anything which may lead to any reasonable inference that his or her independence has been compromised. Article 7 Professional conduct of counsel 1. Counsel shall be respectful and courteous in his or her relations with the Chamber, the Prosecutor and the members of the Office of the Prosecutor, the Registrar and the members of the Registry, the client, opposing counsel, accused persons, victims, witnesses and any other person involved in the proceedings. 2. Counsel shall maintain a high level of competence in the law applicable before the Court. He or she shall participate in training initiatives required to maintain such competence. 3. Counsel shall comply at all times with the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and such rulings as to conduct and procedure as may be made by the Court, including the enforcement of this Code.
29 4. Counsel shall supervise the work of his or her assistants and other staff, including investigators, clerks and researchers, to ensure that they comply with this Code. Article 8 Respect for professional secrecy and confidentiality 1. Counsel shall respect and actively exercise all care to ensure respect for professional secrecy and the confidentiality of information in accordance with the Statute, the Rules of Procedure and Evidence and the Regulations of the Court. 2. The relevant provisions referred to in paragraph 1 of this article include, inter alia, article 64, paragraph 6 (c), article 64, paragraph 7, article 67, paragraph 1 (b), article 68, and article 72 of the Statute, rules 72, 73, and 81 of the Rules of Procedure and Evidence and regulation 97 of the Regulations of the Court. Counsel shall also comply with the relevant provisions of this Code and any order of the Court. 3. Counsel may only reveal the information protected under paragraphs 1 and 2 of this article to co-counsel, assistants and other staff working on the particular case to which the information relates and solely to enable the exercise of his or her functions in relation to that case. 4. Subject to paragraph 3 of this article, counsel may only disclose the information protected under paragraphs 1 and 2 of this article, where such disclosure is provided for by a particular provision of the Statute, the Rules of Procedure and Evidence, the Regulations of the Court or this Code or where such disclosure is ordered by the Court. In particular, Counsel shall not reveal the identity of protected victims and witnesses, or any confidential information that may reveal their identity and whereabouts, unless he or she has been authorized to do so by an order of the Court. Article 9 Counsel-client relationship 1. Counsel shall not engage in any discriminatory conduct in relation to any other person, in particular his or her client, on grounds of race, colour, ethnic or national origin, nationality, citizenship, political opinions, religious convictions, gender, sexual orientation, disability, marital status or any other personal or economic status. 2. In his or her relations with the client, counsel shall take into account the client s personal circumstances and specific needs, in particular where counsel is representing victims of torture or of physical, psychological or sexual violence, or children, the elderly or the disabled. 3. Where a client s ability to make decisions concerning representation is impaired because of mental disability or for any other reason, counsel shall inform the Registrar and the relevant Chamber. Counsel shall also take the steps necessary to ensure proper legal representation of the client according to the Statute and the Rules of Procedure and Evidence. 4. Counsel shall not engage in any improper conduct, such as demanding sexual relations, coercion, intimidation, or exercise any other undue influence in his or her relations with a client. Article 10 Advertising Counsel may advertise provided the information is:
30 (a) (b) Accurate; and Respectful of counsel s obligations regarding confidentiality and privilege. Chapter 2 Representation by counsel Article 11 Establishment of the representation agreement The agreement is established when counsel accepts a request from a client seeking representation or from the Chamber. Article 12 Impediments to representation 1. Counsel shall not represent a client in a case: (a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or (b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court. 2. In the case of paragraph 1 (a) of this article, where consent has been obtained after consultation, counsel shall inform the Chamber of the Court seized with the situation or case of the conflict and the consent obtained. Such notice shall be provided in a manner consistent with counsel s duties of confidentiality pursuant to article 8 of this Code and rule 73, sub-rule 1 of the Rules of Procedure and Evidence. 3. Counsel shall not act in proceedings in which there is a substantial probability that counsel or an associate of counsel will be called to appear as a witness unless: (a) The testimony relates to an uncontested issue; or (b) The testimony relates to the nature and value of legal services rendered in the case. 4. This article is without prejudice to article 16 of this Code. Article 13 Refusal by counsel of a representation agreement 1. Counsel has the right to refuse an agreement without stating reasons. 2. Counsel has a duty to refuse an agreement where: (a) There is a conflict of interest under article16 of this Code; (b) Counsel is incapable of dealing with the matter diligently; or
31 (c) Counsel does not consider that he or she has the requisite expertise. Article 14 Performance in good faith of a representation agreement 1. The relationship of client and counsel is one of candid exchange and trust, binding counsel to act in good faith when dealing with the client. In discharging that duty, counsel shall act at all times with fairness, integrity and candour towards the client. 2. When representing a client, counsel shall: (a) Abide by the client s decisions concerning the objectives of his or her representation as long as they are not inconsistent with counsel s duties under the Statute, the Rules of Procedure and Evidence, and this Code; and (b) Consult the client on the means by which the objectives of his or her representation are to be pursued. Article 15 Communication between counsel and the client 1. Counsel shall provide the client with all explanations reasonably needed to make informed decisions regarding his or her representation. 2. When counsel is discharged from or terminates the agreement, he or she shall convey as promptly as possible to the former client or replacement counsel any communication that counsel received relating to the representation, without prejudice to the duties which subsist after the end of the representation. 3. When communicating with the client, counsel shall ensure the confidentiality of such communication. Article 16 Conflict of interest 1. Counsel shall exercise all care to ensure that no conflict of interest arises. Counsel shall put the client s interests before counsel s own interests or those of any other person, organization or State, having due regard to the provisions of the Statute, the Rules of Procedure and Evidence, and this Code. 2. Where counsel has been retained or appointed as a common legal representative for victims or particular groups of victims, he or she shall advise his or her clients at the outset of the nature of the representation and the potential conflicting interests within the group. Counsel shall exercise all care to ensure a fair representation of the different yet consistent positions of his or her clients. 3. Where a conflict of interest arises, counsel shall at once inform all potentially affected clients of the existence of the conflict and either: (a) (b) Withdraw from the representation of one or more clients with the prior consent of the Chamber; or Seek the full and informed consent in writing of all potentially affected clients to continue representation.
32 Article 17 Duration of the representation agreement 1. Counsel shall advise and represent a client until: (a) The case before the Court has been finally determined, including all appeals; (b) Counsel has withdrawn from the agreement in accordance with article 16 or 18 of this Code; or (c) A counsel assigned by the Court has been withdrawn. 2. The duties of counsel towards the client continue until the representation has ended, except for those duties which subsist under this Code. Article 18 Termination of the representation 1. With the prior consent of the Chamber, counsel may withdraw from the agreement in accordance with the Regulations of the Court if: (a) (b) The client insists on pursuing an objective that counsel considers repugnant; or The client fails to fulfil an obligation to counsel regarding counsel s services and has been given reasonable warning that counsel will withdraw unless the obligation is fulfilled. 2. Where counsel withdraws from the agreement, he or she remains subject to article 8 of this Code, as well as any provisions of the Statute and the Rules of Procedure and Evidence relating to confidentiality. 3. Where counsel is discharged by the client, counsel may be discharged in accordance with the Regulations of the Court. 4. Where counsel s physical or mental condition materially impairs his or her ability to represent the client, counsel may be withdrawn by the Chamber at his or her request or at the request of the client or the Registrar. 5. In addition to complying with the duties imposed by article 15, paragraph 2, of this Code, counsel shall convey to replacement counsel the entire case file, including any material or document relating to it. Article 19 Conservation of files Following the termination of the representation, counsel shall keep files containing documents and records of work carried out in fulfilment of the agreement for five years. Counsel shall allow the former client to inspect the file unless he or she has substantial grounds for refusing to do so. After this time counsel shall seek instructions from the former client, his or her heirs or the Registrar on the disposal of the files, with due regard to confidentiality.
33 Article 20 Counsel s fees Prior to establishing an agreement, counsel shall inform the client in writing of the rate of fees to be charged and the criteria for setting them, the basis for calculating the costs, the billing arrangements and the client s right to receive a bill of costs. Article 21 Prohibitions 1. Notwithstanding article 22, counsel shall not accept remuneration, in cash or in kind, from a source other than the client unless the client consents thereto in writing after consultation and counsel s independence and relationship with the client are not thereby affected. 2. Counsel shall never make his or her fees contingent on the outcome of a case in which he or she is involved. 3. Counsel shall not mix funds of a client with his or her own funds, or with funds of counsel s employer or associates. Counsel shall not retain money received on behalf of a client. 4. Counsel shall not borrow monies or assets from the client. Article 22 Remuneration of counsel in the framework of legal assistance 1. The fees of counsel where his or her client benefits from legal assistance shall be paid exclusively by the Registry of the Court. Counsel shall not accept remuneration in cash or in kind from any other source. 2. Counsel shall neither transfer nor lend all or part of the fees received for representation of a client or any other assets or monies to a client, his or her relatives, acquaintances, or any other third person or organization in relation to which the client has a personal interest. 3. Counsel shall sign an undertaking to respect the obligations under this article when accepting the appointment to provide legal assistance. The signed undertaking shall be sent to the Registry. 4. Where counsel is requested, induced or encouraged to violate the obligations under this article, counsel shall advise the client of the prohibition of such conduct. 5. Breach of any obligations under this article by Counsel shall amount to misconduct and shall be subject to a disciplinary procedure pursuant to this Code. This may lead to a permanent ban on practising before the Court and being struck off the list of counsel, with transmission to the respective national authority.
34 Chapter 3 Relations with the Court and others Article 23 Communications with the Chambers and judges Unless the judge or the Chamber dealing with a case permits counsel to do so in exceptional circumstances, counsel shall not: (a) (b) Make contact with a judge or Chamber relative to the merits of a particular case other than within the proper context of the proceedings; or Transmit evidence, notes or documents to a judge or Chamber except through the Registry. Article 24 Duties towards the Court 1. Counsel shall take all necessary steps to ensure that his or her actions or those of counsel s assistants or staff are not prejudicial to the ongoing proceedings and do not bring the Court into disrepute. 2. Counsel is personally responsible for the conduct and presentation of the client s case and shall exercise personal judgement on the substance and purpose of statements made and questions asked. 3. Counsel shall not deceive or knowingly mislead the Court. He or she shall take all steps necessary to correct an erroneous statement made by him or her or by assistants or staff as soon as possible after becoming aware that the statement was erroneous. 4. Counsel shall not submit any request or document with the sole aim of harming one or more of the participants in the proceedings. 5. Counsel shall represent the client expeditiously with the purpose of avoiding unnecessary expense or delay in the conduct of the proceedings. Article 25 Evidence 1. Counsel shall at all times maintain the integrity of evidence, whether in written, oral or any other form, which is submitted to the Court. He or she shall not introduce evidence which he or she knows to be incorrect. 2. If counsel, while collecting evidence, reasonably believes that the evidence found may be destroyed or tampered with, counsel shall request the Chamber to issue an order to collect the evidence pursuant to rule 116 of the Rules of Procedure and Evidence. Article 26 Relations with unrepresented persons 1. When required in the course of representation, counsel may communicate with and meet an unrepresented person in the client s interest. 2. When counsel communicates with unrepresented persons he or she shall: (a) Inform them of their right to assistance from counsel and, if applicable, to their right to legal assistance; and
35 (b) Without infringing upon the confidentiality of counsel-client privilege, inform them of the interest that counsel represents and the purpose of the communication. 3. If counsel becomes aware of a potential conflict of interest in the course of a communication or meeting with an unrepresented person, he or she shall, notwithstanding paragraph 1 of this article, refrain immediately from engaging in any further contact or communication with the person. Article 27 Relations with other counsel 1. In dealing with other counsel and their clients, counsel shall act fairly, in good faith and courteously. 2. All correspondence between counsel representing clients with a common interest in a litigated or non-litigated matter and who agree on exchanging information concerning the matter, shall be presumed confidential and privileged by counsel. 3. When counsel does not expect particular correspondence between counsel to be confidential, he or she shall state clearly at the outset that such correspondence is not confidential. Article 28 Relations with persons already represented by counsel Counsel shall not address directly the client of another counsel except through or with the permission of that counsel. Article 29 Relations with witnesses and victims 1. Counsel shall refrain from intimidating, harassing or humiliating witnesses or victims or from subjecting them to disproportionate or unnecessary pressure within or outside the courtroom. 2. Counsel shall have particular consideration for victims of torture or of physical, psychological or sexual violence, or children, the elderly or the disabled. Chapter 4 Disciplinary regime Article 30 Conflict with other disciplinary regimes Subject to article 38 of this Code, the present chapter is without prejudice to the disciplinary powers of any other disciplinary authority that may apply to counsel subject to this Code. Article 31 Misconduct Counsel commits misconduct when he or she:
36 (a) (b) (c) Violates or attempts to violate any provisions of this Code, the Statute, the Rules of Procedure and Evidence and the Regulations of the Court or of the Registry in force imposing a substantial ethical or professional duty on him or her; Knowingly assists or induces another person to commit any misconduct, referred to in paragraph (a) of this article, or does so through the acts of another person; or Fails to comply with a disciplinary decision rendered pursuant to this chapter. Article 32 Liability for conduct of assistants or other staff 1. Counsel shall be liable for misconduct under article 31 of this Code by his or her assistants or staff when he or she: (a) Orders or approves the conduct involved; or (b) Knows or has information suggesting that violations may be committed and takes no reasonable remedial action. 2. Counsel shall instruct his or her assistants or staff in the standards set by this Code. Article 33 The Commissioner 1. A Commissioner responsible for investigating complaints of misconduct in accordance with this chapter shall be appointed for four years by the Presidency. The Commissioner shall be chosen from amongst persons with established competence in professional ethics and legal matters. 2. The Commissioner shall not be eligible for re-appointment. A Commissioner who is involved in an investigation when his or her mandate expires shall continue to conduct such an investigation until it is concluded. Article 34 Filing a complaint of misconduct 1. Complaints against counsel regarding misconduct as referred to in articles 31 and 32 of this Code may be submitted to the Registry by: (a) The Chamber dealing with the case; (b) The Prosecutor; or (c) Any person or group of persons whose rights or interests may have been affected by the alleged misconduct. 2. The complaint shall be made in writing or, if the complainant is unable to do so, orally before a staff member of the Registry. It shall identify the complainant and the counsel against whom the complaint is made and shall describe in sufficient detail the alleged misconduct. 3. The Registrar shall transmit the complaint to the Commissioner. 4. The Registrar may, on his or her own initiative, make complaints to the Commissioner regarding the misconduct referred to in articles 31 and 32 of this Code.
37 5. All complaints shall be kept confidential by the Registry. Article 35 Limitation period The right to file a complaint against counsel for misconduct shall lapse five years after the termination of the representation agreement. Article 36 Composition and management of the Disciplinary Board 1. The Disciplinary Board shall comprise three members, two of whom shall be permanent and one ad hoc. 2. The members of the Disciplinary Board shall perform their functions under this Code in an independent and impartial manner. 3. The Registry shall make appropriate arrangements for the elections, provided for in paragraph 4 of this article, in consultation with counsel and, as appropriate, national authorities. 4. The two permanent members, as well as one alternate member who may serve as a replacement in accordance with paragraph 10 of this article, shall be elected for four years by all counsel entitled to practise before the Court. They shall be chosen from amongst persons with established competence in professional ethics and legal matters. 5. The ad hoc member shall be a person appointed by the national authority competent to regulate and control the activities of counsel subject to the disciplinary procedure. 6. The permanent members shall not be eligible for re-election. 7. Notwithstanding paragraph 4 of this article, at the first election one of the permanent members shall be selected by lot to serve for a term of six years. 8. After each election and in advance of the first meeting of the newly-elected Disciplinary Board, the permanent and alternate members shall elect one of the permanent members as a chairperson. 9. All members of the Disciplinary Board shall have the same rights and votes. The Disciplinary Board shall decide by majority vote. An alternate member serving on a case pursuant to paragraph 10 of this article shall have the same rights and votes as permanent and ad hoc members serving on the same case. 10. If one of the permanent members is unavailable to deal with the case or serve on the Disciplinary Board, the chairperson or, where the chairperson is the permanent member concerned, the other permanent member, shall request the alternate member to serve as a replacement on the Disciplinary Board. 11. Permanent members or the alternate member whose mandates have expired shall continue to deal with the cases they already have under consideration until such cases are finally determined including all appeals. 12. The Registrar shall appoint a staff member of the Registry who will render secretariat services to the Disciplinary Board. Once appointed, the relevant staff member of the Registry shall act at arm s length from the Registry and, subject to article 44, paragraph 12 of this Code, solely as the secretariat of the Disciplinary Board.
38 Article 37 Preliminary procedures 1. If the complaint filed meets the requirements in article 34 of this Code, the Commissioner shall forward it to counsel subject to the disciplinary procedure, who shall submit a response within sixty days from the date the complaint is forwarded. 2. The response shall indicate whether the alleged misconduct has been or is the subject of a disciplinary procedure before the national authority. If so, it shall include: (a) The identity of the national authority deciding on the alleged misconduct; and (b) A certified communication by the national authority stating the alleged facts that are the basis of the disciplinary procedure before it. Article 38 Complementarity of disciplinary measures 1. The disciplinary procedure in this Code shall be applied by the Disciplinary Board. 2. The ad hoc member of the Disciplinary Board shall serve as the contact point with the relevant national authority for all communication and consultation regarding the procedure.
39 3. Counsel subject to the disciplinary procedure shall request the national authority dealing with the matter to inform the Disciplinary Board of the progress of any national disciplinary procedure concerning the alleged misconduct and of its final decision, and shall take all measures necessary to facilitate such communication. 4. When the alleged misconduct is the basis of a disciplinary procedure which has already been initiated before the relevant national authority, the procedure before the Disciplinary Board shall be suspended until a final decision is reached regarding the former procedure, unless: (a) (b) (c) the national authority does not respond to communications and consultations in accordance with paragraph 2 of this article within a reasonable time; the Disciplinary Board considers that the information received is not satisfactory; or the Disciplinary Board considers that, in the light of the information received, the national authority is unable or unwilling to conclude the disciplinary procedure. 5. As soon as it receives the decision of the national authority, the Disciplinary Board shall: (a) (b) declare the procedure closed, unless the decision adopted does not adequately address a complaint of misconduct under this Code; or declare that the decision of the national authority does not cover or only partially covers the misconduct brought before the Disciplinary Board and that therefore the procedure is to be continued. 6. In the case of paragraphs 3 and paragraph 4 (b) of this article, the Disciplinary Board may ask counsel subject to the disciplinary procedure to provide detailed information about the procedure, including any minute or evidence which might have been submitted. 7. A decision by the Disciplinary Board based on this article may be appealed before the Disciplinary Appeals Board. Article 39 Disciplinary procedure 1. The Commissioner conducting the investigation may dismiss a complaint without any further investigation if he or she considers on the basis of the information at his or her disposal that the allegation of misconduct is unfounded in fact or in law. He or she shall notify the complainant accordingly. 2. Should the Commissioner consider otherwise, he or she shall promptly investigate the counsel s alleged misconduct and decide either to submit a report to the Disciplinary Board or to bring the procedure to an end. 3. The Commissioner shall take into consideration all evidence, whether oral, written or any other form, which is relevant and has probative value. He or she shall keep all information concerning the disciplinary procedure confidential. 4. The Commissioner may try to find an amicable settlement if he or she deems it appropriate. The Commissioner shall report the outcome of any such efforts to reach an amicable settlement to the Disciplinary Board, which may take it into consideration. Any amicable settlement shall be without prejudice to the competence or powers of the Disciplinary Board under this Code.
40 5. The report of the Commissioner shall be submitted to the Disciplinary Board. 6. The Disciplinary Board hearing shall be public. However, the Disciplinary Board may decide to hold a hearing or parts of it in closed session, in particular to safeguard the confidentiality of information in the report of the Commissioner or to protect victims and witnesses. 7. The Commissioner and the counsel subject to the disciplinary procedure shall be called and heard. The Disciplinary Board may also call and hear any other person deemed useful for the establishment of the truth. 8. In exceptional cases, where the alleged misconduct is of such a nature as to seriously prejudice the interests of justice, the Commissioner may lodge an urgent motion with the Chamber before which the counsel who is the subject of the complaint is appearing, so that it may, as appropriate, declare a temporary suspension of such counsel. Article 40 Rights of counsel subject to the disciplinary procedure 1. Counsel subject to the disciplinary procedure shall be entitled to assistance from other counsel. 2. Counsel shall have the right to remain silent before the Disciplinary Board, which may draw any inferences it deems appropriate and reasonable from such silence in the light of all the information submitted to it. 3. Counsel shall have the right to full disclosure of the information and evidence gathered by the Commissioner as well as the Commissioner s report. 4. Counsel shall be given the time required to prepare his or her defence. 5. Counsel shall have the right to question, personally or through his or her counsel, any person called by the Disciplinary Board to testify before it. Article 41 Decisions by the Disciplinary Board 1. The Disciplinary Board may conclude the procedure finding no misconduct on the basis of the evidence submitted to it or finding that counsel subject to disciplinary procedure committed the alleged misconduct. 2. The decision shall be made public. It shall be reasoned and issued in writing. 3. The decision shall be notified to counsel subject to the disciplinary procedure and to the Registrar. 4. When the decision is final, it shall be published in the Official Journal of the Court and transmitted to the national authority. Article 42 Sanctions 1. When misconduct has been established, the Disciplinary Board may impose one or more of the following sanctions: (a) Admonishment; (b) Public reprimand with an entry in counsel s personal file;
41 (c) Payment of a fine of up to 30,000; (d) Suspension of the right to practise before the Court for a period not exceeding two years; and (e) Permanent ban on practising before the Court and striking off the list of counsel. 2. The admonishment may include recommendations by the Disciplinary Board. 3. The costs of the disciplinary procedure shall be within the discretion of the Disciplinary Board. Article 43 Appeals 1. Sanctioned counsel and the Commissioner shall have the right to appeal the decision of the Disciplinary Board on factual or legal grounds. 2. The appeal shall be notified to the secretariat of the Disciplinary Board within thirty days from the day on which the decision has been delivered. 3. The secretariat of the Disciplinary Board shall transmit the notification of the appeal to the secretariat of the Disciplinary Appeals Board. 4. The Disciplinary Appeals Board shall decide on the appeal according to the procedure followed before the Disciplinary Board. Article 44 Composition and management of the Disciplinary Appeals Board 1. The Disciplinary Appeals Board shall decide on appeals against decisions of the Disciplinary Board. 2. The members of the Disciplinary Appeals Board shall perform their functions under this Code in an independent and impartial manner. 3. The Registry shall make appropriate arrangements for the elections provided for in paragraph 5 of this article, in consultation with counsel and, as appropriate, national authorities. 4. The Disciplinary Appeals Board shall comprise five members: (a) The three judges of the Court who take precedence under regulation 10 of the Regulations of the Court, not including: (i) the judges dealing with the case from which the complaint subject to the disciplinary procedure arose; or (ii) any members or former members of the Presidency who appointed the Commissioner. (b) Two persons elected in accordance with paragraph 5 of this article. 5. The two members of the Disciplinary Appeals Board referred to in paragraph 4 (b) of this article, as well as an alternate member who may serve as a replacement in accordance with paragraph 6 of this article, shall be elected for four years by all counsel entitled to practise before the Court. They shall be chosen from amongst persons with established competence in professional ethics and legal matters.
42 6. If one of the elected members is unavailable to deal with the case or serve on the Disciplinary Appeal Board, the chairperson shall request the alternate member to serve as a replacement on the Disciplinary Appeals Board. 7. The functions of members of the Disciplinary Appeals Board are incompatible with those of members of the Disciplinary Board. 8. The elected members shall not be eligible for re-election. 9. The judge who takes precedence among the three judges referred to in paragraph 4 (a) of this article shall be the chairperson of the Disciplinary Appeals Board. 10. All members of the Disciplinary Appeals Board shall have the same rights and votes. The Disciplinary Appeals Board shall decide by majority vote. An alternate member serving on a case pursuant to paragraph 6 of this article shall have the same rights and votes as other members serving on the same case. 11. Members whose mandates have expired shall continue to deal with the cases they already have under consideration until such cases are finally determined. 12. The staff member of the Registry appointed by the Registrar pursuant to article 36, paragraph 12, of this Code to provide secretariat services to the Disciplinary Board shall also act as the secretariat of the Disciplinary Appeals Board. Once appointed, the relevant staff member of the Registry shall act at arm s length from the Registry. Chapter 5 Final provisions Article 45 Entry into force This Code and any amendments to it shall enter into force 30 days after their adoption by the Assembly of States Parties in accordance with article 112, paragraph 2, of the Rome Statute. Article 46 Publication The Code adopted by the Assembly of States Parties shall be published in the Official Journal of the Court.
43 Home > ABA Groups > Center for Professional Responsibility > Publications > Model Rules of Professional Conduct > Model Rules of Professional Conduct: Table of Contents Model Rules of Professional Conduct: Table of Contents MODEL RULES OF PROFESSIONAL CONDUCT Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. Russian Translation (2009) Other Model Rules Resources 2013 by the American Bar Association. All rights reserved. Table of Contents Subject Matter Index Preface Commission on Evaluation of Professional Standards Chair's Introduction Commission on Evaluation of the Rules of Professional Conduct ("Ethics 2000") Chair's Introduction Preamble and Scope Rules Rule 1.0 Terminology Client Lawyer Relationship Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer Rule 1.3 Diligence Rule 1.4 Communications Rule 1.5 Fees Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 1.9 Duties to Former Clients Rule 1.10 Imputation of Conflicts of Interest: General Rule Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third Party Neutral
44 Rule 1.13 Rule 1.14 Rule 1.15 Rule 1.16 Rule 1.17 Rule 1.18 Organization as Client Client with Diminished Capacity Safekeeping Property Declining or Terminating Representation Sale of Law Practice Duties to Prospective Client Counselor Rule 2.1 Rule 2.2 Rule 2.3 Rule 2.4 Advisor (Deleted) Evaluation for Use by Third Persons Lawyer Serving as Third Party Neutral Advocate Rule 3.1 Rule 3.2 Rule 3.3 Rule 3.4 Rule 3.5 Rule 3.6 Rule 3.7 Rule 3.8 Rule 3.9 Meritorious Claims and Contentions Expediting Litigation Candor toward the Tribunal Fairness to Opposing Party and Counsel Impartiality and Decorum of the Tribunal Trial Publicity Lawyer as Witness Special Responsibilities of a Prosecutor Advocate in Nonadjudicative Proceedings Transactions with Persons Other Than Clients Rule 4.1 Rule 4.2 Counsel Rule 4.3 Rule 4.4 Truthfulness in Statements to Others Communication with Person Represented by Dealing with Unrepresented Person Respect for Rights of Third Persons Law Firms and Associations Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 5.3 Responsibilities Regarding Nonlawyer Assistance Rule 5.4 Professional Independence of a Lawyer Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practiceof Law Rule 5.6 Restrictions on Rights to Practice Rule 5.7 Responsibilities Regarding Law related Services Public Service Rule 6.1 Rule 6.2 Rule 6.3 Rule 6.4 Interests Rule 6.5 Voluntary Pro Bono Publico Service Accepting Appointments Membership in Legal Services Organization Law Reform Activities Affecting Client Nonprofit and Court Annexed Limited Legal
45 Services Programs Information About Legal Services Rule 7.1 Communication Concerning a Lawyer's Services Rule 7.2 Advertising Rule 7.3 Solicitation of Clients Rule 7.4 Communication of Fields of Practice and Specialization Rule 7.5 Firm Names and Letterhead Rule 7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges Maintaining the Integrity of the Profession Rule 8.1 Rule 8.2 Rule 8.3 Rule 8.4 Rule 8.5 Bar Admission and Disciplinary Matters Judicial and Legal Officials Reporting Professional Misconduct Misconduct Disciplinary Authority; Choice of Law
46 NEW YORK STATE UNIFIED COURT SYSTEM PART 1200 RULES OF PROFESSIONAL CONDUCT Dated: May 1, 2013 These Rules of Professional Conduct were promulgated as Joint Rules of the Appellate Divisions of the Supreme Court, effective April 1, They supersede the former part 1200 (Disciplinary Rules of the Code of Professional Responsibility). The New York State Bar Association has issued a Preamble, Scope and Comments to accompany these Rules. They are not enacted with this Part, and where a conflict exists between a Rule and the Preamble, Scope or a Comment, the Rule controls. This unofficial compilation of the Rules provided for informational purposes only. The official version of Part 1200 is published by the New York State Department of State. An unofficial on-line version is available at (Title 22 [Judiciary]; Subtitle B Courts; Chapter IV Supreme Court; Subchapter E All Departments; Part 1200 Rules of Professional Conduct; Rules of Professional Conduct).
47 TABLE OF CONTENTS Page RULE 1.0. Terminology... 1 RULE 1.1. Competence... 4 RULE 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer... 4 RULE 1.3. Diligence RULE 1.4. Communication RULE 1.5. Fees and Division of Fees... 6 RULE 1.6. Confidentiality of Information RULE 1.7. Conflict of Interest: Current Clients RULE 1.8. Current Clients: Specific Conflict of Interest Rules RULE 1.9. Duties to Former Clients RULE Imputation of Conflicts of Interest RULE RULE Special Conflicts of Interest for Former and Current Government Officers and Employees Specific Conflicts of Interest for Former Judges, Arbitrators, Mediators or Other Third-Party Neutrals RULE Organization As Client RULE Client With Diminished Capacity RULE Preserving Identity of Funds and Property of Others; Fiduciary Responsibility; Commingling and Misappropriation of Client Funds or Property; Maintenance of Bank Accounts; Record Keeping; Examination of Records RULE Declining or Terminating Representation i
48 Page RULE Sale of Law Practice RULE Duties to Prospective Clients RULE 2.1. Advisor RULE 2.2. Reserved RULE 2.3. Evaluation for Use by Third Persons RULE 2.4. Lawyer Serving as Third-Party Neutral RULE 3.1. Non-Meritorious Claims and Contentions RULE 3.2. Delay of Litigation RULE 3.3. Conduct Before a Tribunal RULE 3.4. Fairness to Opposing Party and Counsel RULE 3.5. Maintaining and Preserving the Impartiality of Tribunals and Jurors RULE 3.6. Trial Publicity RULE 3.7. Lawyer As Witness RULE 3.8. Special Responsibilities of Prosecutors and Other Government Lawyers RULE 3.9. Advocate In Non-Adjudicative Matters RULE 4.1. Truthfulness In Statements To Others RULE 4.2. Communication With Person Represented By Counsel RULE 4.3. Communicating With Unrepresented Persons RULE 4.4. Respect for Rights of Third Persons ii
49 Page RULE 4.5. RULE 5.1. Communication After Incidents Involving Personal Injury or Wrongful Death Responsibilities of Law Firms, Partners, Managers and Supervisory Lawyers RULE 5.2. Responsibilities of a Subordinate Lawyer RULE 5.3. Lawyer s Responsibility for Conduct of Nonlawyers RULE 5.4. Professional Independence of a Lawyer RULE 5.5. Unauthorized Practice of Law RULE 5.6. Restrictions On Right To Practice RULE 5.7. Responsibilities Regarding Nonlegal Services RULE 5.8. Contractual Relationship Between Lawyers and Nonlegal Professionals RULE 6.1. Voluntary Pro Bono Service RULE 6.2. Reserved RULE 6.3. Membership in a Legal Services Organization RULE 6.4. Law Reform Activities Affecting Client Interests RULE 6.5. Participation in Limited Pro Bono Legal Service Programs RULE 7.1. Advertising RULE 7.2. Payment for Referrals RULE 7.3. Solicitation and Recommendation of Professional Employment RULE 7.4. Identification of Practice and Specialty RULE 7.5. Professional Notices, Letterheads and Signs iii
50 Page RULE 8.1. Candor in the Bar Admission Process RULE 8.2. Judicial Officers and Candidates RULE 8.3. Reporting Professional Misconduct RULE 8.4. Misconduct RULE 8.5. Disciplinary Authority and Choice of Law iv
51 Law of the People s Republic of China on Lawyers Order of the President of the People s Republic of China No. 76 The Law of the People s Republic of China on Lawyers, revised and adopted at the 30th Meeting of the Standing Committee of the Tenth National People s Congress of the People s Republic of China on October 28, 2007, is hereby promulgated and shall go into effect as of June 1, Hu Jintao President of the People s Republic of China October 28, 2007 Law of the People s Republic of China on Lawyers (Adopted at the 19th Meeting of the Standing Committee of the Eighth National People s Congress on May 15, 1996, amended in accordance with the Decision on Amending the Law of the People s Republic of China on Lawyers made by the Standing Committee of the Ninth National People s Congress at its 25th Meeting on December 29, 2001, and revised at the 30th Meeting of the Standing Committee of the Tenth National People s Congress on October 28, 2007) Contents Chapter I General Provisions Chapter II License for Legal Practice by Lawyers Chapter III Law Firms Chapter IV Business, Rights and Obligations of Lawyers Chapter V Lawyers Associations Chapter VI Legal Liability Chapter VII Supplementary Provisions Chapter I: General Provisions Article 1 This Law is enacted in order to improve the system governing lawyers, to standardize the practice of lawyers, to ensure that lawyers practice according to law, and to enable lawyers to play their role in the development of the socialist legal system. Article 2 For the purposes of this Law, a lawyer means a professional who has acquired a lawyer s practice certificate pursuant to law, and is authorized or designated to provide the parties with legal services. A lawyer shall protect the lawful rights and interests of parties, ensure the correct implementation of law, and safeguard fairness and justice of the society. Article 3 In his legal practice, a lawyer must abide by the Constitution and laws, and strictly observe lawyers professional ethics as well as discipline governing their legal practice. Lawyers Law, 2007, available at
52 In legal practice, a lawyer must base himself on facts and take law as the criterion. In legal practice, a lawyer shall subject himself to supervision of the State, society and the parties concerned. The legal practice of lawyers according to law shall be protected by law. No unit or individual shall infringe the lawful rights and interests of lawyers. Article 4 The judicial administration departments shall supervise and give guidance to lawyers, law firms and lawyers associations in accordance with this Law. Chapter II: License for Legal Practice by Lawyers Article 5 A person who intends to apply for the legal practice of a lawyer shall meet the following conditions: (1) upholding the Constitution of the People s Republic of China; (2) having passed the unified national judicial examination; (3) having completed a full year s internship at a law firm; and (4) being a person of good character and conduct. For a person who applies for the legal practice of a lawyer, the lawyer s qualification certificate he obtained before the unified national judicial examination is instituted shall be equally effective as the qualification certificate obtained after passing the unified national judicial examination. Article 6 A person who intends to practice as a lawyer shall submit an application to the judicial administration department of the people s government of a city divided into districts or of a district of a municipality directly under the Central Government and submit the following documents: (1) the qualification certificate obtained after passing the unified national judicial examination; (2) documents prepared by the lawyers association showing that the applicant has passed the examinations taken upon completion of the internship; (3) the identity certification of the applicant; and (4) documents produced by a law firm showing that it agrees to recruit the applicant. A person who applies to practice as a part-time lawyer shall, in addition, submit the document certifying that the unit where he works agrees to the applicant practicing as a part-time lawyer. The department that accepts an application shall complete examination of the application within 20 days from the date it accepts the application and, after examination, submit its opinions and all the application documents to the judicial administration department of a people s government of the province, autonomous region or Lawyers Law, 2007, available at
53 municipality directly under the Central Government, which shall complete examination and verification within 10 days from the date it receives the documents submitted and make a decision on whether to grant the application. If it decides to grant the application, it shall issue a lawyer s practice certificate to the applicant; otherwise, it shall give the applicant the reasons in writing. Article 7 Under one of the following conditions, the applicant shall not be issued a lawyer s practice certificate: (1) having no capacity for civil conduct or having limited capacity for civil conduct; (2) having been subjected to criminal punishment, with the exception of a crime of negligence; or (3) having been discharged form public employment or having had his lawyer s practice certificate revoked. Article 8 A person applying to practice as a full-time lawyer who has acquired an undergraduate education in an institution of higher learning or an education at a higher level, who has worked for at least 15 years in the fields of the profession where persons providing legal service are lacking, or who has a senior professional title or has attained an equivalent professional level and acquired the necessary legal knowledge of the profession shall be subject to appraisal by the judicial administration department under the State Council before obtaining its approval. The specific measures therefor shall be formulated by the State Council. Article 9 Under one of the following circumstances, the judicial administration department of the people s government of a province, autonomous region or municipality under the Central Government shall reverse the decision on granting the application for practicing as a lawyer and revoke the lawyer s practice certificate of the person whose application for legal practice is granted: (1) Where the applicant obtains the lawyer s practice certificate through fraud, bribery or other illegitimate means; or (2) Where the application of an applicant who does not meet the conditions prescribed by this Law is granted. Article 10 A lawyer shall practice law only in one law firm. When he intends to work in a different law firm, he shall apply for a new lawyer s practice certificate. A lawyer s practice is not subject to regional restriction. Article 11 No public servants shall concurrently serve as legal practitioners. Lawyers Law, 2007, available at
54 During the period when a lawyer is serving as a component member of the standing committee of a people s congress at any level, he shall not act as agent ad litem or defender. Article 12 A person engaged in teaching of or research in law in an institution of higher learning or a research institute who meets the conditions prescribed in Article 5 of this Law may, upon the consent of the unit where he works, apply for practice of law as a part-time lawyer in accordance with the procedure prescribed in Article 6 of this Law. Article 13 A person who has not obtained a lawyer s practice certificate shall not provide legal services in the name of lawyer; and he shall not act as agent ad litem or defender, unless otherwise provided for by Law. Chapter III: Law Firms Article 14 A law firm is an organization in which lawyers practice law. For the establishment of a law firm, the following conditions shall be met: (1) It has its own name, domicile and articles of association; (2) It is manned with lawyers who conform to the provisions of this Law; (3) The person who intends to establish the firm shall be a lawyer who has a good deal of experience in the profession and, in the recent three years, who has not been suspended from legal practice by way of punishment; (4) Its assets are in conformity with the amount specified by the judicial administration department under the state Council. Article 15 For the establishment of a partnership law firm, in addition to meeting the conditions prescribed in Article 14 of this Law, there shall be three or more partners, and the persons who intends to establish such a firm shall be a lawyer with at least three years of experience in the profession. A partnership law firm may be established in the form of general partnership or in the form of specialized general partnership. The partners of such a law firm shall, in accordance with law, bear liability for the debts of the law firm in conformity with the form of partnership. Article 16 For the establishment of a sole partnership law firm,in addition to meeting the conditions prescribed in Article 14 of this Law, the person who intends to establish such a firm shall be a lawyer with at least five years of experience in the profession. He shall bear unlimited liability for the debts of the firm. Article 17 Lawyers Law, 2007, available at
55 To apply for the establishment of a law firm, the applicant shall submit the following materials: (1) the written application; (2) the name and articles of association of the law firm; (3) the name list of the lawyers, and their resumes, identity certificates and lawyer s practice certificates; (4) certificate of domicile; and (5) certificate of assets. To establish a partnership law firm, a partnership agreement shall, in addition, be submitted. Article 18 For the establishment of a law firm, an application shall be submitted to the judicial administration department of the people s government of a city divided into districts or of a district of a municipality directly under the Central Government. The department that accepts an application shall, within 20 days from the date it accepts the application, complete examination of the application and submit its opinions formed upon examination and all the application documents to the judicial administration department of the people s government of a province, autonomous region or municipality directly under the Central Government, which shall, within 10 days from the date it receives the documents submitted, complete examination and verification of the said documents and make a decision on whether to grant the application. If it grants the application, it shall issue the law firm s practice certificate to the applicant; otherwise, it shall give the reasons to the applicant in writing. Article 19 A partnership law firm, which has been established for three years or more and has twenty or more professional practitioners, may establish branch offices. The establishment of a branch office shall be subject to the examination and verification by the judicial administration department of the people s government of the province, autonomous region or municipality directly under the Central Government where the branch office to be established is located. For application for the establishment of a branch office, the procedure as provided for in Article 18 of this Law shall be complied with. A partnership law firm shall undertake liability for the debts of its branch offices. Article 20 A law firm established with the funds of the State shall go about its business independently pursuant to law and shall undertake the liability for its debts with its entire assets. Article 21 When a law firm intends to change its name, replace its leading person, or alter its articles of association or partnership agreement, it shall approach the original examination and verification department for approval. Lawyers Law, 2007, available at
56 When a law firm changes its domicile or replaces its partners, it shall, within 15 days from the date such change or replacement takes place, submit the change or replacement to the original examination and verification department for the record. Article 22 A law firm shall close down under one of the following circumstances: (1) it cannot keep complying with the statutory conditions for establishment and still fails to meet the conditions after it has undergone rectification within a time limit; (2) Its law firm s practice certificate is revoked according to law; (3) It decides to dissolve of its own accord; or (4) It is required to close down by laws and administrative regulations under other circumstance. When a law firm closes down, the practice certificate of the law firm shall be revoked by the department which issued such certificate. Article 23 A law firm shall establish sound systems for professional management, examination of conflicts of interests, management of charges and financial affairs, investigation into and handling of complaints, annual assessment, archive preservation, etc., and shall see that its lawyers observe the professional ethics and discipline in their legal practice. Article 24 After making an annual assessment, a law firm shall, submit an annual report on its disposition of business and the results of its assessment of the lawyers practice to the judicial administration department of the people s government of a city divided into districts or of a district of a municipality directly under the Central Government. Article 25 For business to be undertaken by lawyers, it is the law firm that shall accept authorizations in a centralized manner, sign written authorization contracts with the clients and, in accordance with State regulations, collect fees in a centralized manner and truthfully enter them in its accounts. Law firms and lawyers shall pay tax in accordance with law. Article 26 Law firms and lawyers shall not solicit business by slandering other law firms or lawyers or paying middleman s fees, or by other illegitimate means. Article 27 Law firms shall not engage in other business activities than provision of legal services. Chapter IV: Business, Rights and Obligations of Lawyers Article 28 A lawyer may engage in the following business: Lawyers Law, 2007, available at
57 (1) accepting authorization by natural persons, legal persons or other organizations to act as legal counsel; (2) accepting authorization by a party involved in a civil or administrative case to act as agent ad litem and participate in the proceedings; (3) accepting authorization by a criminal suspect involved in a criminal case to provide him with legal advice and represent him in filing a petition or charge, applying for bail for an arrested criminal suspect, accepting authorization by a criminal suspect or defendant or appointment by a people s court to act as defender, or accepting authorization by a private prosecutor in a case of private prosecution or by a victim involved in a case of public prosecution or by his close relatives to act as agent ad litem and participate in the proceedings; (4) accepting authorization to act as agent in filing petitions in all types of litigation; (6) accepting authorization to participate in mediation or arbitration; (7) accepting authorization to provide non-litigation legal services; and (8) answering inquires regarding laws and serving as scrivener of litigation documents and other documents concerning legal matters. Article 29 When acting as legal counsel, a lawyer shall, in accordance with what is agreed upon, provide to the client opinions on relevant legal issues, draft and review legal documents, act as agent to participate in litigation, mediation or arbitration, handle other legal matters he is authorized to handle, and protect the lawful rights and interests of the client. Article 30 When acting as agent in litigation or non-litigation legal matters, a lawyer shall, within the limits of authorization, protect the lawful rights and interests of the client. Article 31 When acting as defender, a lawyer shall, based on facts and laws, present materials and arguments to prove that a criminal suspect or a defendant is innocent or less guilty than charged, or that his criminal responsibility should be reduced or exempted, for the purpose of protecting the lawful rights and interests of the criminal suspect or defendant. Article 32 A client may refuse to be further defended by a lawyer he has authorized or to continue to have him act as agent ad litem, and may authorize another lawyer to act as his defender or agent ad litem. After accepting authorization, a lawyer shall not, without justifiable reasons, refuse to defend a client or to act as agent ad litem. However, if the matter for which he is authorized violates law, the client uses the services provided by the lawyer to engage in illegal activities, or the client intentionally conceals important facts concerning the case in hand, the lawyer shall have the right to refuse to defend the client or to act as agent ad litem. Article 33 Lawyers Law, 2007, available at
58 After a criminal suspect is interrogated by an investigation organ for the first time or from the date on which compulsory measures are adopted against him, the authorized lawyer shall, on the strength of his lawyer s practice certificate, the papers issued by his law firm, and the letter of authorization or official legal aid papers, have the right to meet with the criminal suspect or the defendant and enquire about the case. The meeting between a lawyer and a criminal suspect or defendant shall not be monitored. Article 34 An authorized lawyer shall, from the date on which a case begins to be examined for prosecution, have the right to consult, extract and duplicate the litigation documents and case file pertaining to the case. An authorized lawyer shall, from the date on which the people s court accepts the case, have the right to consult, extract and duplicate all the materials pertaining to the case. Article 35 An authorized lawyer shall, depending on the circumstances of the case, apply to the people s prosecutorate or the people s court for the collection and delivery of evidence, or apply to the people s court for telling the witnesses to appear in court and give testimony. When a lawyer investigates to collect evidence for a case on his own, he may, on the strength of his lawyer s practice certificate and the papers issued by his law firm, inquire of the unit or individual concerned about the legal matters which he has undertaken to handle. Article 36 When a lawyer acts as agent ad litem or defender, his right to pleadings or defense shall be protected in accordance with law. Article 37 In legal practice, a lawyer s right of the person is inviolable. A lawyer shall not be legally liable for the opinions he presents as an agent ad litem or defender in court, with the exception of the views he presents to endanger State security, maliciously slander another person, or seriously disrupt the court order. Where a lawyer is, in accordance with law, detained or arrested because he is suspected of committing a crime when participating in litigation, the organ that detains or arrests him shall, within 24 hours after the execution of detention or arrest, have his family members, his law firm and the lawyers association to which he belongs informed of the fact. Article 38 A lawyer shall keep confidential the secrets of the State and commercial secrets that he comes to know during his legal practice and shall not divulge the private affairs of the parties concerned. Lawyers Law, 2007, available at
59 A lawyer shall keep confidential the things and information that he comes to know during his legal practice which his client or another person does not want other people to know, with the exception of the facts and information about a crime which his client or another person prepares to commit or is committing to endanger State or public security or seriously endanger another person s personal safety or safety of property. Article 39 A lawyer shall not act as agent for both parties involved in one and the same case, and shall not act as agent where there is a conflict of interests between himself or his close relatives and the legal affairs he is handling. Article 40 A lawyer shall not do any of the following in his legal practice: (1) privately accepting authorization, collecting fees, or accepting money, things of value or other benefits offered by a client; (2) seeking the disputed rights and interests of a party by taking advantage of his provision of legal services; (3) accepting money, things of value or other benefits offered by the other party and infringing the rights and interests of the client through ill-intentioned collusion with the other party or a third party; (4) in violation of regulations, meeting with a judge, prosecutor, arbitrator or another staff member concerned; (5) giving bribes to a judge, prosecutor, arbitrator or another staff member concerned, introducing bribes to them, instigating or inducing a party to resort to bribery, or, by other illegitimate means, attempting to influence their handling of a case in accordance with law; (6) intentionally providing false evidence or intimidating or luring another person into providing false evidence, for the purpose of preventing the other party from obtaining evidence lawfully; (7) instigating or inciting a party into settling disputes by disrupting public order, endangering public security or by other illegal means; or (8) disrupting the order of a court or an arbitration tribunal, or interfering with the normal conduct of litigation or arbitration. Article 41 A lawyer who once served as a judge or prosecutor shall not act as agent ad litem or defender within two years after leaving his post in a people s court or people s prosecutorate. Article 42 Lawyers and law firms shall, in accordance with State regulations, perform the obligation of legal aid, provide the recipients with standard legal services, and protect their lawful rights and interests. Chapter V: Lawyers Associations Article 43 Lawyers Law, 2007, available at
60 A lawyers association is a public organization with the status of a legal person and the self-disciplined organization of lawyers. The All-China Lawyers Association is established at the national level, while local lawyers associations are established in provinces, autonomous regions, and municipalities directly under the Central Government. Where necessary, local lawyers associations may be established in cities divided into districts. Article 44 The articles of association of the All-China Lawyers Association shall be formulated by the national congress of the members and submitted to the judicial administration department under the State Council for the record. The articles of association of local lawyers associations shall be formulated by the local congresses of members and submitted for the record to the judicial administration departments at the corresponding level. The articles of association of local lawyers associations shall not contravene the articles of association of the All-China Lawyers Association. Article 45 A lawyer or law firm shall join the local lawyers association where the lawyer or law firm is located. A lawyer or law firm that has joined a local lawyers association is, at the same time, a member of the All-China Lawyers Association. Members of lawyers associations shall enjoy the rights and perform the obligations as prescribed by the articles of association of the lawyers associations. Article 46 A lawyers association shall perform the following duties: (1) ensuring the lawyers legal practice according to law and protecting lawyers lawful rights and interests; (2) analyzing and exchanging lawyers experience in work; (3) formulating professional regulations and rules of punishment; (4) organizing professional training for lawyers, organizing education in lawyers professional ethics and practice discipline, and assessing the lawyers legal practice; (5) organizing and managing internship activities for persons who apply for legal practice, and making appraisal of their performance; (6) giving reward or punishment to a lawyer or a law firm; (7) accepting complaints or reports against lawyers, mediating disputes arising in the course of a lawyer s legal practice, and accepting appeals lodged by lawyers; and (8) other duties prescribed by laws, administrative regulations, rules, and the articles of association of the lawyers association. The professional regulations and rules of punishment formulated by lawyers associations shall not contravene relevant laws, administrative regulations or rules. Chapter VI: Legal Liability Article 47 Lawyers Law, 2007, available at
61 Where a lawyer commits one of the following acts, the judicial administration department of the people s government of a city divided into districts or of a district of a municipality directly under the Central Government shall given him a disciplinary warning and may impose on him a fine of not more than RMB 5,000 yuan; it shall confiscate the illegal gains, if any; and if the circumstances are serious, it shall have him suspend his legal practice for not more than three months by way of punishment: (1) practising in two or more law firms simultaneously; (2) soliciting business by illegitimate means; (3) acting as agent for both parties involved in one and the same case, or acting as agent where there is a conflict of interests between himself or his close relatives and the legal affair he is handling; (4) serving as agent ad litem or defender within two years after leaving his post in a people s court or people s prosecutorate; or (5) refusing to perform the obligation of legal aid. Article 48 Where a lawyer commits one of the following acts, the judicial administration department of the people s government of a city divided into districts or of a district of a municipality directly under the Central Government shall give him a disciplinary warning and may impose on him a fine of not more than 10,000 yuan; it shall confiscate his illegal gains, if any; if the circumstances are serious, it shall have him suspend his legal practice for not less than three months but not more than six months by way of punishment: (1) privately accepting authorization or collecting fees, or accepting money, things of value or other benefits offered by a client; (2) after accepting an authorization, refusing to act as defender or agent or failing to appear in court on schedule to participate in litigation or arbitration without justifiable reasons; (4) seeking the disputed rights and interests of a party by taking advantage of his provision of legal services; or (5) divulging commercial secrets or private affairs. Article 49 Where a lawyer commits one of the following acts, the judicial administration department of the people s government of a city divided into districts or of a district of a municipality directly under the Central Government shall have him suspend his legal practice for not less than six months but not more than one year by way of punishment and may impose a fine of not more than 50,000 yuan; it shall confiscate his illegal gains, if any; if the circumstances are serious, the judicial administration department of the people s government of a province, autonomous region, or municipality directly under the Central Government shall revoke his lawyer s practice certificate; and if a crime is constituted, he shall be investigated for criminal responsibility according to law: (1) in violation of regulations, meeting with a judge, prosecutor, arbitrator or another staff member concerned, or, by other illegitimate means, attempting to influence their handling of a case according to law; Lawyers Law, 2007, available at
62 (2) giving bribes to a judge, prosecutor, arbitrator or another staff member concerned, introducing bribes to them, or instigating or inducing a party to resort to bribery; (3) providing false materials to judicial administration departments or committing other frauds; (4) intentionally providing false evidence, or intimidating or luring another person into providing false evidence, for the purpose of preventing the other party from obtaining evidence lawfully; (5) accepting money, things of value or other benefits offered by the other party, and infringing the rights and interests of the client through ill-intentioned collusion with the other party or a third party; (6) disrupting the order of a court or an arbitration tribunal, or interfering with the normal conduct of litigation or arbitration; (7) instigating or inciting a party into settling disputes by disrupting public order, endangering public security or by other illegal means; (8) presenting views to endanger State security, maliciously slander another person, or seriously disrupt court order; or (9) divulging secrets of the State. Where a lawyer receives criminal punishment for an intentional crime, his lawyer s practice certificate shall be revoked by the judicial administration department of the people s government of a province, autonomous region, or municipality directly under the Central Government. Article 50 Where a law firm commits one of the following acts, the judicial administration department of the people s government of a city divided into districts or of a district of a municipality directly under the Central Government shall, depending on the seriousness of the circumstances, give it a disciplinary warning or have it suspend legal practice for consolidation for not less than one month but not more than six months by way of punishment, and may impose on it a fine of not more than 100,000 yuan; its illegal gains, if any, shall be confiscated; and if the circumstances are especially serious, the judicial administration department of the people s government of a province, autonomous region or municipality directly under the Central Government shall revoke its law firm s practice certificate: (1) accepting authorization and collecting fees in violation of regulations; (2) in contravention of the statutory procedure, changing its name, replacing its leading person, altering its articles of association or partnership agreement, changing its domicile, replacing its partners, or making changes in other important items; (3) engaging in other business activities than provision of legal services; (4) soliciting business by slandering other law firms or lawyers, or paying middleman s fees or by other illegitimate means; (5) in violation of regulations, accepting cases where there is a conflict of interests involving it; (6) refusing to perform the obligation of providing legal aid; (7) providing false materials to judicial administration departments or committing other frauds; or (8) neglecting management of its lawyers, thus causing serious consequences. Lawyers Law, 2007, available at
63 Where a law firm is punished because of its illegal acts specified in the preceding paragraph, its leading person shall, depending on the seriousness of the circumstances, be given a disciplinary warning or be fined not more than 20,000 yuan. Article 51 Where a lawyer, in violation of the provisions of this Law, and before the elapse of one year after he was given a disciplinary warning, conducts another act for which he should be given such a warning by way of punishment, the judicial administration department of the people s government of a city divided into districts or of a district of a municipality directly under the Central Government shall, by way of punishment, have him suspend his legal practice for not less than three months but not more than one year; and if, before the elapse of two years after the expiration of the period for suspension of his legal practice, which was imposed on him by way of punishment, he conducts another act for which he should be suspended form legal practice, the judicial administration department of the people s government of a province, autonomous region, or municipality directly under the Central Government shall revoke his lawyer s practice certificate. Where a law firm, because of its violation of the provisions of this Law, and before the elapse of two years after the expiration of the period for suspension of its legal practice for consolidation, which was imposed on it by way of punishment, commits another act for which it should be suspended from legal practice for consolidation by way of punishment, the judicial administration department of the people s government of a province, autonomous region, or municipality directly under the Central Government shall revoke its law firm s practice certificate. Article 52 The judicial administration departments of the people s governments at the county level shall exercise routine supervision over and administration of the legal practice of lawyers and law firms, and order them to solve the problems discovered in the course of inspection; and they shall, in a timely manner, conduct investigation of the complaints lodged by parties. Where a judicial administration department of the people s government at the county level considers that a lawyer or law firm should be given administrative penalty for an illegal act committed, it shall submit a proposal to such an effect to the judicial administration department at a higher level. Article 53 A lawyer who was suspended form legal practice for not less than six months by way of punishment shall not be a partner of a law firm within three years after the expiration of the period of punishment. Article 54 Where a lawyer engages in legal practice in violation of law or causes losses to a party due to his fault, the law firm where he works shall bear the liability for compensation. After paying compensation, the law firm may claim recovery from the lawyer who acted intentionally or out of gross negligence. Lawyers Law, 2007, available at
64 Article 55 Where a person who has not obtained a lawyer s practice certificate provides legal services in the name of lawyer, the judicial administration department of the local people s government at or above the county level at the place where he is located shall order him to cease the illegal practice of law, confiscate his illegal gains and impose on him a fine of not less than the amount of the illegal gains but not more than five times that amount. Article 56 Where a staff member of the judicial administration department, in violation of the provisions of this Law, abuses his power or neglects his duty, which constitutes a crime, he shall be investigated for criminal responsibility in accordance with law; if the violation is not serious enough to constitute a crime, he shall be given a sanction in accordance with law. Chapter VII: Supplementary Provisions Article 57 The provisions of this Law shall be applicable to lawyers of the military who provide legal services to the military, with respect to their obtaining of the qualification as a lawyer, and their rights, obligations and code of conduct. The specific measures for administration of lawyers of the military shall be formulated by the State Council and the Central Military Commission. Article 58 The measures for administration of the offices established by law firms of other countries to provide legal services within the territory of the People s Republic of China shall be formulated by the State Council. Article 59 The measures for collection of fees by lawyers shall be formulated by the department in charge of pricing under the State Council in conjunction with the judicial administration department under the State Council. Article 60 This Law shall go into effect as of June 1, Lawyers Law, 2007, available at
69 substance abuse in the legal profession John Davidson, Esq. 13 Colantuono, Highsmith & Whatley
71 1/25/2016 Substance Abuse In the Legal Profession John Charles Davidson, Associate Colantuono, Highsmith & Whatley, PC Substance Abuse in the Legal Profession I. Defining the Problem (Current Statistics) II. Ethical Concerns A. Impact on Client Representation B. Potential for Criminal Consequences III.Behavioral Indicators IV.Legal Standards A. California Rules of Professional Conduct B. ABA Model Rules V. How can we help? (c) Davidson, J. C. January 20, 2016 Defining the Problem Current Statistics RE: The Legal Profession and the Prevalence of Substance Abuse 1. Just under 20% of attorneys admit to drinking 3 5 alcoholic beverages every day 2. Estimated that number of lawyers in U.S. abusing alcohol and drugs is twice that of general population 3. Between 40% and 70% of attorney discipline proceedings and malpractice actions result from alcohol/drug abuse or mental illness (c) Davidson, J. C. January 20,
72 1/25/2016 Ethical Concerns Presented as a Result of Substance Abuse Impact on Client Representation 1. Duty to be competent 2. Unprofessional behaviors 3. Duty to Communicate 4. Generally, choosing an appropriate course of action (c) Davidson, J. C. January 20, 2016 Ethical Concerns Presented as a Result of Substance Abuse Potential for Criminal Consequences 1. Statutory Breach of Duty, B&P Code Section Legal Concerns Stemming from Use Bottom Line: Attorneys who have a problem often feel more alone, fearing discovery and/or retribution (c) Davidson, J. C. January 20, 2016 Behavioral Indicators 1. Physical appearance - Smell of alcohol, bloodshot eyes, slurred speech, deterioration of physical appearance and personal hygiene 2. Behavioral symptoms Hypervigilance, truancy, tardiness, failure to return calls, missing appointments, failure to meet deadlines, change in mood or demeanor (c) Davidson, J. C. January 20,
73 1/25/2016 Legal Standards, Generally California Rules of Professional Conduct No affirmative obligation on attorneys to report impairment to State Bar or any other agency. As a result, essentially boils down to self-reporting. Over 70% of all participation in Lawyer Assistance Program involve some kind of attorney discipline ABA Model Rules Explicit reporting obligations for attorneys who suspect impairment may be putting clients at risk. (c) Davidson, J. C. January 20, 2016 How Can You Help? Lawyer Assistance Program Remember that it is confidential, B&P Code Section 6234 Phone: , 877-LAP-4-HELP The Other Bar Phone , Outside Organizations Alcoholics Anonymous, LifeRing, Moderation Management, SMART Recovery, Secular Organizations for Sobriety/Save Ourselves, Women for Sobriety, (c) Davidson, J. C. January 20, 2016 There Is Always Hope, I Will Always Help John Charles Davidson (916) (c) Davidson, J. C. January 20,
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