Current through Register Vol. 39, No. 6, September 16, 2024
(a) "Belief" or
"believes" denotes that the person involved actually supposed the fact in
question to be true. A person's belief may be inferred from
circumstances.
(b) "Confidential
information" denotes information described in Rule 1.6.
(c) "Confirmed in writing," when used in
reference to the informed consent of a person, denotes informed consent that is
given in writing by the person or a writing that a lawyer promptly transmits to
the person confirming an oral informed consent. See Paragraph (f) for the
definition of "informed consent." If it is not feasible to obtain or transmit
the writing at the time the person gives informed consent, then the lawyer must
obtain or transmit it within a reasonable time thereafter.
(d) "Firm" or "law firm" denotes a lawyer or
lawyers in a law partnership, professional corporation, sole proprietorship or
other association authorized to practice law; or lawyers employed in a legal
services organization or the legal department of a corporation, government
entity, or other organization.
(e)
"Fraud" or "fraudulent" denotes conduct that is fraudulent under the
substantive or procedural law of North Carolina and has a purpose to
deceive.
(f) "Informed consent"
denotes the agreement by a person to a proposed course of conduct after the
lawyer has communicated adequate information and explanation appropriate to the
circumstances.
(g) "Knowingly,"
"known," or "knows" denotes actual knowledge of the fact in question. A
person's knowledge may be inferred from circumstances.
(h) "Principal" denotes a member of a
partnership for the practice of law, a shareholder in a law firm organized as a
professional corporation, a member of an association authorized to practice
law, or a lawyer having management authority over the legal department of a
company, organization, or government entity.
(i) "Reasonable" or "reasonably" when used in
relation to conduct by a lawyer denotes the conduct of a reasonably prudent and
competent lawyer.
(j) "Reasonable
belief" or "reasonably believes" when used in reference to a lawyer denotes
that the lawyer believes the matter in question and that the circumstances are
such that the belief is reasonable.
(k) "Reasonably should know" when used in
reference to a lawyer denotes that a lawyer of reasonable prudence and
competence would ascertain the matter in question.
(l) "Screened" denotes the isolation of a
lawyer from any participation in a professional matter through the timely
imposition of procedures within a firm that are reasonably adequate under the
circumstances to protect information that the isolated lawyer is obligated to
protect under these rules or other law.
(m) "Substantial" when used in reference to
degree or extent denotes a material matter of clear and weighty
importance.
(n) "Tribunal" denotes
a court, an arbitrator in a binding arbitration proceeding, or a legislative
body, administrative agency, or other body acting in an adjudicative capacity.
The term encompasses any proceeding conducted in the course of a trial or
litigation, or conducted pursuant to the tribunal's rules of civil or criminal
procedure or other relevant rules of the tribunal, such as a deposition,
arbitration, or mediation. A legislative body, administrative agency or other
body acts in an adjudicative capacity when a neutral official, after the
presentation of evidence or legal argument by a party or parties, may render a
binding legal judgment directly affecting a party's interests in a particular
matter.
(o) "Writing" or "written"
denotes a tangible or electronic record of a communication or representation,
and any data embedded therein (commonly referred to as metadata), including
handwriting, typewriting, printing, photostating, photography, audio or video
recording, and electronic communications. A "signed" writing includes an
electronic sound, symbol or process attached to or logically associated with a
writing and executed or adopted by a person with the intent to sign the
writing.
Comment
Confirmed in Writing
[1] If it is not feasible to obtain or
transmit a written confirmation at the time the client gives informed consent,
then the lawyer must obtain or transmit it within a reasonable time thereafter.
If a lawyer has obtained a client's informed consent, the lawyer may act in
reliance on that consent so long as it is confirmed in writing within a
reasonable time thereafter.
Firm
[2] Whether two or more lawyers constitute a
firm within Paragraph (d) can depend on the specific facts. For example, two
practitioners who share office space and occasionally consult or assist each
other ordinarily would not be regarded as constituting a firm. However, if they
present themselves to the public in a way that suggests that they are a firm or
conduct themselves as a firm, they should be regarded as a firm for purposes of
the rules. The terms of any formal agreement between associated lawyers are
relevant in determining whether they are a firm, as is the fact that they have
mutual access to information concerning the clients they serve. Furthermore, it
is relevant in doubtful cases to consider the underlying purpose of the rule
that is involved. A group of lawyers could be regarded as a firm for purposes
of the rule that the same lawyer should not represent opposing parties in
litigation, while it might not be so regarded for purposes of the rule that
information acquired by one lawyer is attributed to another.
[3] With respect to the law department of an
organization, including the government, there is ordinarily no question that
the members of the department constitute a firm within the meaning of the Rules
of Professional Conduct. There can be uncertainty, however, as to the identity
of the client. For example, it may not be clear whether the law department of a
corporation represents a subsidiary or an affiliated corporation, as well as
the corporation by which the members of the department are directly employed. A
similar question can arise concerning an unincorporated association and its
local affiliates.
[4] Similar
questions can also arise with respect to lawyers in legal aid and legal
services organizations. Depending upon the structure of the organization, the
entire organization or different components of it may constitute a firm or
firms for purposes of these rules.
Fraud
[5] When used in these rules, the terms
"fraud" or "fraudulent" refer to conduct that is characterized as such under
the substantive or procedural law of North Carolina and has a purpose to
deceive. This does not include merely negligent misrepresentation or negligent
failure to apprise another of relevant information. For purposes of these
rules, it is not necessary that anyone has suffered damages or relied on the
misrepresentation or failure to inform.
Informed Consent
[6] Many of the Rules of Professional Conduct
require the lawyer to obtain the informed consent of a client or other person
(e.g., a former client or, under certain circumstances, a prospective client)
before accepting or continuing representation or pursuing a course of conduct.
See, e.g., Rules 1.6(a) and 1.7(b). The communication necessary to obtain such
consent will vary according to the rule involved and the circumstances giving
rise to the need to obtain informed consent. The lawyer must make reasonable
efforts to ensure that the client or other person possesses information
reasonably adequate to make an informed decision. Ordinarily, this will require
communication that includes a disclosure of the facts and circumstances giving
rise to the situation, any explanation reasonably necessary to inform the
client or other person of the material advantages and disadvantages of the
proposed course of conduct and a discussion of the client's or other person's
options and alternatives. In some circumstances it may be appropriate for a
lawyer to advise a client or other person to seek the advice of other counsel.
A lawyer need not inform a client or other person of facts or implications
already known to the client or other person; nevertheless, a lawyer who does
not personally inform the client or other person assumes the risk that the
client or other person is inadequately informed and the consent is invalid. In
determining whether the information and explanation provided are reasonably
adequate, relevant factors include whether the client or other person is
experienced in legal matters generally and in making decisions of the type
involved, and whether the client or other person is independently represented
by other counsel in giving the consent. Normally, such persons need less
information and explanation than others, and generally a client or other person
who is independently represented by other counsel in giving the consent should
be assumed to have given informed consent.
[7] Obtaining informed consent will usually
require an affirmative response by the client or other person. In general, a
lawyer may not assume consent from a client's or other person's silence.
Consent may be inferred, however, from the conduct of a client or other person
who has reasonably adequate information about the matter. A number of rules
require that a person's consent be confirmed in writing. See Rules 1.7(b) and
1.9(a). For a definition of "writing" and "confirmed in writing," see
Paragraphs (o) and (c). Other rules require that a client's consent be obtained
in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a
definition of "signed," see Paragraph (o).
Screened
[8] This definition applies to situations
where screening of a personally disqualified lawyer is permitted to remove
imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or
1.18.
[9] The purpose of screening
is to assure the affected parties that confidential information known by the
personally disqualified lawyer remains protected. The personally disqualified
lawyer should acknowledge the obligation not to communicate with any of the
other lawyers in the firm with respect to the matter. Similarly, other lawyers
in the firm who are working on the matter should be informed that the screening
is in place and that they may not communicate with the personally disqualified
lawyer with respect to the matter. Additional screening measures that are
appropriate for the particular matter will depend on the circumstances. To
implement, reinforce and remind all affected lawyers of the presence of the
screening, it may be appropriate for the firm to undertake such procedures as a
written undertaking by the screened lawyer to avoid any communication with
other firm personnel and any contact with any firm files or other information,
including information in electronic form, relating to the matter, written
notice and instructions to all other firm personnel forbidding any
communication with the screened lawyer relating to the matter, denial of access
by the screened lawyer to firm files or other information, including
information in electronic form, relating to the matter and periodic reminders
of the screen to the screened lawyer and all other firm personnel.
[10] In order to be effective, screening
measures must be implemented as soon as practical after a lawyer or law firm
knows or reasonably should know that there is a need for
screening.
Authority
G.S.
84-23;
Eff. July 24,
1997;
Amendments Approved by the Supreme Court: September 22, 2016;
March 5, 2015; October 2, 2014; March 1,
2003.
