All 50 states govern lawyer advertising through their Rules of Professional Conduct, often known as “ethics rules.” The rules in each state are unique to that state. Therefore, it is imperative that lawyers familiarize themselves with the rules of the states that govern their conduct.
Rule 7.1 – Communications Concerning a Lawyer’s Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.—Amended June 17, 2009, eff. Sept. 1, 2009.
Comment
[1] This rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.
[2] Truthful statements that are misleading are also prohibited by this rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.
[3] An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.
[4] See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.
Reporter’s Notes — 2009 Amendment
V.R.P.C. 7.1 is amended to conform to the changes in the Model Rule.
In In re PRB Docket No. 2002-093, 2005 VT 2, 177 Vt. 629, 868 A.2d 709 (mem.), after a thorough review of the basis and scope of V.R.P.C. 7.1-7.4, the Court held that the PRB could have reasonably found that an advertisement stating ‘‘WE ARE THE EXPERTS IN’’ three enumerated areas violated former V.R.P.C. 7.1(c) as an unsubstantiated comparison with the quality of other lawyers, and that the phrase ‘‘INJURY EXPERTS’’ violated former V.R.P.C. 7.1(b) as creating an unjustified expectation of results that the lawyer could achieve and could not be characterized as a proper description of a specialty under V.R.P.C. 7.4.
The ABA Reporter’s Explanation is as follows:
TEXT:
1. Modify to limit prohibition to false and misleading communications
The Commission has limited Rule 7.1 to a prohibition against false or misleading communications, defined in terms of the material misrepresentations or omissions that are the subject of current paragraph (a). The categorical prohibitions in [former] paragraphs (b) and (c) have been criticized as being overly broad and have therefore been relocated from text to the commentary as examples of statements that are likely to be misleading. The Commission believes this approach strikes the proper balance between lawyer free-speech interests and the need for consumer protection.
2. Paragraph (b): Delete ‘‘is likely to create an unjustified expectation about results the lawyer can achieve’’
The Commission recommends deletion of this specification of a ‘‘misleading’’ communication because it is overly broad and can be interpreted to prohibit communications that are not substantially likely to lead a reasonable person to form a specific and unwarranted conclusion about the lawyer or the lawyer’s services. See Comment [2].
3. Paragraph (b): Delete ‘‘states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law’’
The Commission recommends that this portion of paragraph (b) be moved to Rule 8.4(e) because this prohibition should not be limited to advertising. Comment [4] provides a cross-reference.
4. Delete paragraph (c)
The Commission also believes that a prohibition of all comparisons that cannot be factually substantiated is unduly broad. Whether such comparisons are misleading should be assessed on a case-by-case basis in terms of whether the particular comparison is substantially likely to mislead a reasonable person to believe that the comparison can be substantiated. See Comment [3].
Comment
[1] The matters addressed by the deleted portions of [former] Comment [1] are now addressed in Comment [3].
[2] New Comment [2] discusses the prohibition against materially misleading statements. The third sentence sets forth a new standard for determining whether a lawyer’s truthful statement is misleading. The ‘‘substantial likelihood’’ test is used in Rule 3.6 to balance the competing interests in free speech and fair trial. The Commission thinks that this standard strikes the proper balance between the lawyer’s free-speech interests and the need for consumer protection.
[3] New Comment [3] addresses the problem areas covered in [former] paragraphs (b) and (c), explaining circumstances under which statements raising unjustified expectations and making unsubstantiated comparisons may be false or misleading. The first sentence is a modification of the deleted portion of [former] Comment [1]. Rather than stating that truthful reports of a lawyer’s achievements are ordinarily prohibited as misleading, the Comment is limited to a warning that such statements may be misleading. The second sentence indicates that comparisons that cannot be factually substantiated will be misleading only if there is a substantial likelihood that a reasonable person would conclude that the comparison could be factually substantiated. Neither statement is as sweeping as its counterpart in the [former] Comment or paragraph (c). Because many jurisdictions encourage or require the use of disclaimers in lawyer advertising, the final sentence indicates that disclaimers may reduce the likelihood that a statement about the lawyer or the lawyer’s services will be misleading.
[4] This new Comment is a cross-reference to Rule 8.4(e) which prohibits lawyers from stating or implying that they have an ability to influence improperly a government agency or official or that they can achieve results by means that violate the Rules of Professional Conduct or other law.
Annotations
1. Qualitative advertising claims. Attorney’s advertisement proclaiming his firm to be ‘‘injury experts’’ and ‘‘the experts’’ in certain enumerated fields of law fell squarely within that category of qualitative advertising claims that are not susceptible of measurement or verification; thus, they were likely to create an unjustified expectation and differentiation among those reading the advertisement about the results which can be achieved by a lawyer claiming to be an expert in violation of this rule. In re PRB Docket No. 2002.093, 2005 VT 2, 177 Vt. 629, 868 A.2d 709 (mem.). Any attorney advertisement using the term ‘‘specialist’’ or ‘‘specialty’’ in the sense that the terms imply expertise should be qualified by a disclaimer that the attorney has not been certified as a specialist by any recognized organization, in order to avoid potential confusion to the consumer and to comport with this rule’s prohibition against misleading communications. In re PRB Docket No. 2002.093, 2005 VT 2, 177 Vt. 629, 868 A.2d 709 (mem.).
Rule 7.2 – Advertising
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by any regulatory authority designated by the Supreme Court;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these rules that provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.
—Amended June 17, 2009, eff. Sept. 1, 2009.
Comment
[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.
[2] This rule permits public dissemination of information concerning a lawyer’s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against ‘‘undignified’’ advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this rule. But see Rule 7.3(a) for the prohibition against the solicitation of a prospective client through a real-time electronic exchange that is not initiated by the prospective client.
[4] Neither this rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.
Paying Others to Recommend a Lawyer
[5] Lawyers are not permitted to pay others for channeling professional work. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, publicrelations personnel, business-development staff and website designers. See Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them.
[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists prospective clients to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for prospective clients. See, e.g., the American Bar Association’s Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act (requiring that organizations that are identified as lawyer referral services (i) permit the participation of all lawyers who are licensed and eligible to practice in the jurisdiction and who meet reasonable objective eligibility requirements as may be established by the referral service for the protection of prospective clients; (ii) require each participating lawyer to carry reasonably adequate malpractice insurance; (iii) act reasonably to assess client satisfaction and address client complaints; and (iv) do not refer prospective clients to lawyers who own, operate or are employed by the referral service.)
[7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with prospective clients, but such communication must be in conformity with these rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead prospective clients to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.
[8] A lawyer also may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer. Such reciprocal referral arrangements must not interfere with the lawyer’s professional judgment as to making referrals or as to providing substantive legal services. See Rules 2.1 and 5.4(c). Except as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or nonlawyer professional must not pay anything solely for the referral, but the lawyer does not violate paragraph (b) of this rule by agreeing to refer clients to the other lawyer or nonlawyer professional, so long as the reciprocal referral agreement is not exclusive and the client is informed of the referral agreement. Conflicts of interest created by such arrangements are governed by Rule 1.7. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these rules. This rule does not restrict referrals or divisions of revenues or net income among lawyers within firms comprised of multiple entities.
Reporter’s Notes — 2009 Amendment
V.R.P.C. 7.2 is amended to conform to the changes in the Model Rule. Rule 7.2(b)(4) and Comment [8] were added by amendment at the August 2002 meeting of the House of Delegates on the recommendation of the Standing Committee on Ethics and Professional Responsibility to provide guidance for lawyers for referral agreements with other lawyers or nonlawyer professionals. See ABA Report No. 114 (August 2002).
The ABA Reporter’s Explanation of other changes is as follows:
TEXT:
1. Paragraph (a): delete specification of types of public media and add reference to ‘‘electronic communication’’
This change is proposed to accommodate the new technology that is currently being used by law firms to market legal services-e.g., websites and e-mail. Examples of ‘‘public media’’ are being dropped from the Rule text and moved to Comment [3], obviating the necessity of changing the Rule to accommodate the next new publiccommunication technology. A specific reference to the Internet has been added to Comment [3].
A reference to electronic communication has also been added. To provide a specific example of this type of technology, a reference to e-mail has been added to Comment [3] with a cross-reference to the prohibition in Rule 7.3(a) of solicitation by real-time electronic contact.
2. Delete current paragraph (b)
The requirement that a lawyer retain copies of all advertisements for two years has become increasingly burdensome, and such records are seldom used for disciplinary purposes. Thus the Commission, with the concurrence of the ABA Commission on Responsibility in Client Development, is recommending elimination of the requirement that records of advertising be retained for two years.
3. Paragraph (b)(2): Replace reference to ‘‘legal service organization’’ with ‘‘legal service plan’’
This change in terminology is intended to avoid confusion between a ‘‘legal services organization,’’ which provides direct legal services to clients and is included in the definition of a law firm in Rule 1.0(c), and prepaid and group legal service plans, and other similar delivery systems, whose usual charges are excepted from the prohibition against a lawyer giving anything of value to a person for recommending the lawyer’s services in Rule 7.2(b).
4. Paragraph (b)(2): Modify to permit lawyers to pay the usual charges of ‘‘a not-for-profit or qualified lawyer referral service’’
This change is intended to more closely conform the Model Rules to ABA policy with respect to lawyer referral services. It recognizes the need to protect prospective clients who have come to think of lawyer referral services as consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. The effect of the proposal is to permit lawyers to pay the usual charges of a for-profit lawyer referral service, but only if it has been approved by an appropriate regulatory authority [approved by the Vermont Supreme Court] as affording adequate protections for prospective clients, preferably in conformity with the four core standards prescribed in the American Bar Association’s Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act. Because the need for special regulation arises from the prevailing public perception of lawyer referral services, this special regulatory regime is only applicable to a for-profit organization that holds itself out to the public as a lawyer referral service. See Comment [6].
5. Paragraph (c): Modify to permit identification of law firm as entity responsible for advertisement
The Commission thinks that law firms should be able to designate the firm as the entity responsible for the contents of an advertisement. Such information, rather than the name of a specific lawyer in the firm, should be sufficient to enable disciplinary authorities to take action necessary to protect the public from misleading advertising.
6. Paragraph (c): Require identification of the address of the law firm or lawyer responsible for advertisement
Because Rule 7.5 permits the use of trade names and because lawyers frequently advertise in locations where they do not maintain an office, the Commission has added a requirement that each advertisement include an office address for the law firm or lawyer named in the advertisement. This information will help disciplinary authorities track down those who are responsible for an advertisement, but, more importantly, it will provide prospective clients with important information about where the lawyer or law firm is located -an important fact in this era of multi jurisdictional advertising.
Comment
[3] Although the Commission concluded that a specification of the various public media lawyers can use to market their services should not be included in the Rule text, it thought it appropriate to explicitly affirm the legitimacy of using electronic media, including the Internet and the World Wide Web. The reference to ‘‘lawful’’ electronic mail was included to require lawyers to comply with any law that might prohibit ‘‘spamming’’-i.e., the mass e-mailing of commercial messages. A cross-reference to Rule 7.3(a) has been added to alert lawyers to the proposed prohibition of solicitation by real-time electronic contact. This Comment and the related caption have been deleted because [former] paragraph (b) was deleted from the Rule text.
[5] The discussion of advertising expenses has been modified to more accurately reflect the current state of client-development activities in law firms. To this has been added a cross-reference to Rule 5.3 as a reminder of the partner’s and firm’s obligations with respect to the conduct of nonlawyers involved in client development activities.
[6] In response to a concern about the ambiguity of the reference in paragraph (b)(2) to ‘‘a legal service organization,’’ this new Comment defines a legal service plan to specifically include prepaid and group legal service plans, and also to include ‘‘a similar delivery system that assists prospective clients to secure legal representation.’’ This clarifies that lawyers may pay the usual charges of not only traditional prepaid and group legal service plans, but also the usual charges of new hybrid plans that might undertake to provide a variety of services to prospective clients. Also by its definition of a lawyer referral service as an organization that holds itself out to the public as a lawyer referral service, the Comment precludes extension of the special regulatory regime governing lawyer referral services to prepaid or group legal service plans and other similar delivery systems. Finally the Comment articulates ABA policy with respect to the core characteristics of a qualified lawyer referral service.
[7] This new Comment alerts lawyers who accept assignments or referrals from legal service plans or referrals from lawyer referral services that they must act reasonably to assure that the activities of the plan or service are compatible with the lawyers’ professional obligations.
Rule 7.3 – Direct Contact with Prospective Clients
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words ‘‘Advertising Material’’ on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer which uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.—Amended June 17, 2009, eff. Sept. 1, 2009.
Comment
[1] There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.
[2] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client’s judgment.
[3] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to prospective client, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in-person, live telephone or real-time electronic conversations between a lawyer and a prospective client can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.
[4] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has a close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer’s pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. Consequently, the general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not applicable in those situations. Also, paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.
[5] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).
[6] This rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer’s firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.
[7] The requirement in Rule 7.3(c) that certain communications be marked ‘‘Advertising Material’’ does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this rule.
[8] Paragraph (d) of this rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See 8.4(a).
Reporter’s Notes — 2009 Amendment
V.R.P.C. 7.3 is amended to conform to the changes in the Model Rule. The ABA Reporter’s Explanation is as follows:
TEXT:
1. Paragraph a: Extend prohibition to ‘‘real-time electronic contact’’
The Commission, in accord with the ABA Commission on Responsibility in Client Development, is recommending that lawyer solicitation by real-time electronic communication (e.g., an Internet chat room) be prohibited. Differentiating between e-mail and real-time electronic communication, the Commission has concluded that the interactivity and immediacy of response in realtime electronic communication presents the same dangers as those involved in live telephone contact.
2. Paragraph (a)(1): Exempt contacts with lawyers
In agreement with a recommendation of the ABA Commission on Responsibility in Client Development, the Commission has concluded that lawyers do not need the special protection afforded by this Rule. Such an exemption would permit in-person contacts with inhouse lawyers of organizations but would not permit contact with nonlawyer representatives of such organizations.
- Paragraph (a)(2): Exempt contacts with persons with ‘‘close personal relationship’’ to lawyer
The ABA Model Code of Professional Responsibility permitted in-person contact with close personal friends. Approximately 10 states still do. Although the Commission recognizes the imprecision of the concept of a close personal relationship, it seems difficult to justify prohibiting a lawyer from calling a close friend and offering to represent the friend in a legal matter.
4. Paragraph (b): Add reference to ‘‘real-time electronic contact’’
The prohibition against real-time electronic contact in paragraph (a) requires the addition of a reference to real-time electronic contact in paragraph (b).
5. Paragraph (c): Add reference to electronic contact and modify exception to conform to paragraph (a)
The reference to electronic contact is needed so a lawyer sending e-mail to a person known to need legal services will be required to identify the e-mail as an advertisement. The relocation and modification of the exception was necessary to conform paragraph (c) with the changes in paragraph (a).
Comment
[1], [2] and [3] The references to real-time electronic contact and electronic communications were added to conform the Comment to the proposed changes in the text of the Rule.
[3] The second sentence of this Comment has been modified to reflect the deletion of [former] paragraph (b) from Rule 7.2. The change in the second to the last sentence corrects an error in the [former] Comment.
[4] The first sentence has been modified to indicate that the reference in the Rule text to a ‘‘prior professional relationship’’ denotes a former client-lawyer relationship. A sentence has been added to explain the inapplicability of paragraphs (a) and (c) to contacts with lawyers. The last sentence has been added to recognize the constitutional limitations on regulators attempting to prohibit lawyers from cooperating with nonprofit organizations assisting members or beneficiaries to secure legal counsel necessary for redress of grievances. See United Transportation Union v. State Bar, 401 U.S. 576 (1971).
[8] These changes are stylistic. No change in substance is intended.
Reporter’s Notes
This rule diverges from Vermont’s DR 2-104 by requiring that all targeted advertising, written or broadcast, be identified as advertising at the beginning and end of the message.
Rule 7.4 – Communication of Fields of Practice and Specialization
(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.
(b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation ‘‘Patent Attorney’’’ or a substantially similar designation.
(c) A lawyer engaged in admiralty practice may use the designation ‘‘Admiralty,’’ ‘‘Proctor in Admiralty’’ or a substantially similar designation.
(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by a named organization, provided that the communication clearly states that there is no procedure in Vermont for approving certifying organizations, unless the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law; and
(2) the name of the certifying organization is clearly identified in the communication.— Amended June 17, 2009, eff. Sept. 1, 2009.
Comment
[1] Paragraph (a) of this rule permits a lawyer to indicate areas of practice in communications about the lawyer’s services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate. A lawyer is generally permitted to state that the lawyer is a ‘‘specialist,’’ practices a ‘‘specialty,’’ or ‘‘specializes in’’ particular fields, but such communications are subject to the ‘‘false and misleading’’ standard applied in Rule 7.1 to communications concerning a lawyer’s services.
[2] Paragraph (b) recognizes the long-established policy of the Patent and Trademark Office for the designation of lawyers practicing before the Office. Paragraph (c) recognizes that designation of admiralty practice has a long historical tradition associated with maritime commerce and the federal courts.
[3] Paragraph (d) permits a lawyer to state that the lawyer is certified as a specialist in a field of law. In Vermont, because there is no appropriate regulatory authority that has a procedure for approving organizations granting certification, the rule requires that the lawyer clearly state such lack of procedure. If, however, the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law, the communication need not contain such a statement. In order to insure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization, if any, must be included in any communication regarding the certification.
Reporter’s Notes — 2009 Amendment
V.R.P.C. 7.4 is amended to conform to the changes in the Model Rule, except for Rule 7.4(d)(1), which retains the original provision of V.R.P.C. 7.4(c), adapted from the original Model Rule, that allows a lawyer to claim specialty certification by a named organization that has not been approved by the American Bar Association, provided that the claim clearly states that there is no procedure in Vermont for approval of such organizations. The amended Model Rule requires that the certifying organization be approved either by an appropriate state authority or by the American Bar Association.
In In re PRB Docket No. 2002-093, 2005 VT 2, 177 Vt. 629, 868 A.2d 709 (mem.), after a thorough review of the basis and scope of V.R.P.C. 7.1-7.4, the Court held that the PRB could have reasonably found that the phrase ‘‘INJURY EXPERTS’’ in an advertisement violated former V.R.P.C. 7.1(b) as creating an unjustified expectation of results that the lawyer could achieve and was not acceptable as a description of a specialty under V.R.P.C. 7.4 because that rule only allowed the use of the descriptive term ‘‘specialty’’; further, any use of ‘‘specialist’’ or ‘‘specialty’’ must include a disclaimer of organizational certification to avoid violation of the ‘‘false and misleading’’ standard of V.R.P.C. 7.1.
The ABA Reporter’s Explanation is as follows:
TEXT:
1. Caption: Add reference to ‘‘Specialization’’
As Rule 7.4 deals with communication of both fields of law in which the lawyer practices and fields of law in which the lawyer claims to be a specialist, the current caption is underinclusive.
2. Paragraph (a): Move first sentence to new paragraph (a)
This change serves to separate the two basic subjects addressed by this Rule: communication of fields of law in which the lawyer practices, as permitted by paragraph (a), and communication of fields of law in which the lawyer claims to be certified as a specialist, as governed by paragraph (d). No change in substance is intended.
3. Paragraph (b): Move [former] paragraph (a) to new paragraph (b)
As revised, the grant of permission to lawyers who are admitted before the United States Patent and Trademark Office to use the designation ‘‘Patent Attorney’’ is no longer presented as an exception to the prohibition against claiming to be certified or recognized as a specialist, but rather is treated as a separate subject. This is because a claim to be a patent attorney is premised on admission to practice rather than on certification as a specialist and also entails more than a simple designation of an area in which the lawyer practices. No change in substance is intended.
4. Paragraph (c): Move [former] paragraph (b) to new paragraph (c)
As revised, the grant of permission to lawyers who engage in Admiralty practice to use the designation ‘‘Proctor in Admiralty’’ is no longer presented as an exception to the prohibition against claiming to be certified or recognized as a specialist, but rather is treated as a separate subject. This is because a claim to be a Proctor in Admiralty is not premised on certification but does seem to denote more than a simple designation of an area in which the lawyer practices. No change in substance is intended. [Note: Admission to the bar of a United States District Court still includes admission as ‘‘proctor in admiralty.’’]
5. Paragraph (d): Replace [former] paragraphs (c) and alternate (c) with new paragraph (d)
[As noted above, V.R.P.C. 7.4(d)(1) differs from Model Rule 7.4(d)(1).] Paragraph (d) also contains a new requirement that the name of the certifying organization be clearly identified. This will enable prospective clients to make further inquiry about the certification program.
Comment
[1] A minor change has been made to indicate that this Comment refers to paragraph (a) of the restructured Rule.
[2] The first sentence has been deleted because paragraphs (b) and (c) are no longer presented as exceptions to the prohibition against claiming to be certified as a specialist. Other minor changes conform the Comment to the changes in the Rule text.
[3] The Comment has been modified to conform with paragraph(d)….
Reporter’s Notes
This rule, amended by the ABA in 1994, allows means by which lawyers can advertise themselves as certified specialists (other than in admiralty and patent law). The change was necessitated by the ruling in Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91 (1990), which rendered the current Vermont Code provision constitutionally infirm. The drafters gave careful consideration to the possibility of creating an agency responsible for approving organizations which certify lawyers. After considering the legislative history in adopting the 1994 amendments, however, the drafters decided that reliance upon the ABA certification process would suffice.
Rule 7.5 – Firm Names and Letterheads
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.—Amended June 17, 2009, eff. Sept. 1, 2009.
Comment
[1] A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm’s identity or by a trade name such as the ‘‘ABC Legal Clinic.’’ A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. If a private firm uses a trade name that includes a geographical name such as ‘‘Springfield Legal Clinic,’’ an express disclaimer that it is a public legal aid agency may be required to avoid a misleading implication. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm, or the name of a nonlawyer.
[2] With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact associated with each other in a law firm,, may not denominate themselves as, for example, ‘‘Smith and Jones,’’ for that title suggests that they are practicing law together in a firm.
Reporter’s Notes — 2009 Amendment
V.R.P.C. 7.5 has been amended to conform to the changes in the Model Rule. The phrase ‘‘or a nonlawyer’’ was added by amendment at the August 2002 meeting of the House of Delegates on the recommendation of the Standing Committee on Ethics and Professional Responsibility for consistency with the simultaneous amendment of Model Rule 7.2(b). See Reporter’s Notes to Amendment of V.R.P.C. 7.2.
The ABA Reporter’s Explanation of other changes is as follows:
TEXT:
Paragraph (b): Add reference to ‘‘other professional designation’’
A reference to ‘‘other professional designation’’ has been added in paragraph (b) to clarify that the Rule applies to website addresses and other ways of identifying law firms in connection with their use of electronic media.
Comment
[1] The new sentence in Comment [1] recognizes that a law firm’s website address is a professional designation governed by Rule 7.5. Thus, a law firm may not use a website address that violates Rule 7.1.
[2] The reference to partnership in the [former] Comment is underinclusive because lawyers also practice in professional corporations and limited liability companies.
Rule 1.6 – Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).
(b) A lawyer must reveal information relating to the representation of a client when required by other provisions of these rules or to the extent the lawyer reasonably believes necessary:
(1) to prevent the client or another person from committing a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, a person other than the person committing the act; or
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; or
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.
(c) A lawyer may reveal information relating to the representation of a client, though disclosure is not required by paragraph (b), when permitted under these rules or required by another provision of law or by court order or when the lawyer reasonably believes that disclosure is necessary:
(1) to prevent the client from committing a crime in circumstances other than those in which disclosure is required by paragraph (b) or to prevent the client or another person from committing an act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, the person committing the act;
(2) to secure legal advice about the lawyer’s compliance with these rules; or
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.—Amended June 17, 2009, eff. Sept. 1, 2009.
Comment
[1] This rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client. See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorneyclient privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.
[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
Authorized Disclosure
[5] Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.
Disclosure Adverse to Client
[6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to important exceptions. The provisions of Rule 1.6(b) set forth exceptions designed to bring the mandates of the Rules of Professional Conduct into line with those of the common or statutory law of torts and crimes. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and requires disclosure reasonably necessary to prevent a criminal act that is likely to cause death or substantial bodily harm. Such harm is likely to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has discharged toxic waste into a town’s water supply must reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims. There is an exception to the disclosure requirement when the likelihood of death or harm is only to the person (whether the client or another) threatening the act. While the lawyer may disclose such information pursuant to paragraph (c)(1), disclosure is not required under paragraph (b)(1) as a matter of respect for personal autonomy and privacy.
[7] Paragraph (b)(2) requires disclosure of information relating to the representation to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct, and the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances, and Rule 1.13(c), concerning the lawyer’s responsibilities when the client is an organization.
[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client’s fraud until after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the lawyer must disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.
[9] Paragraph (c) permits, but does not require, disclosures not required by paragraph (b) when these rules permit it, or when another provision of law or a court order requires it. Whether another provision of law supersedes Rule 1.6 is a question of law beyond the scope of these rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this rule and requires disclosure, paragraph (c) permits the lawyer to make such disclosures as are necessary to comply with the law. When a lawyer is ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure, the lawyer, absent informed consent from the client to do otherwise, should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (c) permits the lawyer to comply with the court’s order. Both provisions are permissive, however, allowing a lawyer to follow the dictates of conscience in cases where disclosure is not required by paragraph (b) by suffering the consequences of nondisclosure.
[10] Paragraph (c)(1) permits a lawyer to reveal information relating to the representation as necessary to prevent the client from committing any crime even though the conduct is not such as to require disclosure under paragraph (b), and to reveal information, disclosure of which is not required by paragraph (b)(1), when, in the lawyer’s judgment, the client or another person should be prevented from committing a suicidal or other act harmful to the actor. Cf. Rule 1.14(c).
[11] A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (c)(2) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.
[12] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (c)(3) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.
[13] A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.
[14] Paragraphs (b) and (c) require or permit disclosure, respectively, only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
[15] Paragraph (c) permits but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in paragraphs (c)(1) through (c)(3). In exercising the discretion conferred by this rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer’s decision not to disclose as permitted by paragraph (c) does not violate this rule. Disclosure may be required, however, by other rules and thus by paragraph (b). See Rules 1.2(d), 3.3(b), 4.1(b), 8.1 and 8.3.
Acting Competently to Preserve Confidentiality
[16] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.
[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule.
Former Client
[18] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.
Reporter’s Notes — 2009 Amendment
V.R.P.C. 1.6 is amended to blend unique features of the Vermont rule as adopted in 1999 with the language and format of the changes to Model Rule 1.6.
The original Vermont rule differed significantly from Model Rule 1.6 in a number of respects. The Vermont rule required disclosure of client information when required by other rules, when necessary to prevent a crime that involved the risk of death or substantial bodily harm, and when necessary to avoid assisting a criminal or fraudulent act by a client. The rule permitted disclosure when permitted under other rules, when required by law or court order, or when necessary to reveal the client’s intention to commit a crime not involving death or bodily injury or to defend against claims or charges arising out of the representation. See Reporter’s Notes to V.R.P.C. 1.6 (1999). Model Rules 1.6(b) and 4.1(b) made disclosures to prevent death or bodily harm, or for defense of the lawyer’s interests, permissive only and prohibited other disclosures. Model Rule 1.6, as amended in 2002 and again, on the recommendation of the Task Force on Corporate Responsibility and the Standing Committee on Ethics and Professional Responsibility, in 2003, makes language changes and adds to the list of permissive disclosures those necessary to prevent or rectify substantial financial injury caused by the client’s fraud in which the lawyer’s services were used, to secure legal advice about compliance with the rules, and to comply with other law or court order.
The present amendments retain the mandatory disclosure requirements of the prior Vermont rule with changes in language and structure intended to incorporate the form of the amended ABA rule and to address confusion that had arisen concerning the meaning of the prior Vermont Rule. The ABA Comments have been adapted to the Vermont changes.
Amended V.R.P.C. 1.6(a), like other amendments, substitutes ‘‘gives informed consent’’ for ‘‘consents after consultation.’’ See amended Rule 1.0(e) and Reporter’s Notes. The amendment also makes clear that both required and permitted disclosures are exceptions to the basic rule of confidentiality set forth in the paragraph.
Amended V.R.P.C. 1.6(b) continues the Vermont requirement of disclosure but adopts in modified form the language of the permissive provisions of amended Model Rule 1.6(b)(1)-(3) to describe the three key situations in which disclosure is required by the Vermont rule. The ABA rule has been further modified, in view of the mandatory character of the Vermont rule, to continue to confine the required disclosure to criminal acts and, as the Vermont modifications to Comment [6] state, to create an exception for disclosure of the intention of a client or another person to commit suicide or otherwise engage in behavior harmful to her-or himself. The lawyer is permitted to disclose such an intention pursuant to Rule 1.6(c)(1), however, when in the lawyer’s judgment the best interests of the person involved require it. (The exception for the intention of another person covers the situation in which the information comes to the lawyer through the confidential communication of a client other than that person—for example, a treating psychologist or guardian.)
Amended V.R.P.C. 1.6(c), like the original Vermont rule, lists permissive disclosures, making clear that the provision applies to information other than that for which disclosure is required under V.R.P.C. 1.6(b). The provision in the first sentence permitting disclosure when required by law or court order is carried forward from the original rule and has been added to the Model Rules as Rule 1.6(b)(6). The disclosure continues to be permissive in the amended Vermont rule so that ‘‘A lawyer willing to take the risk of contempt or other legal penalties on behalf of a client should not also be subject to professional discipline for nondisclosure.’’ Reporter’s Notes to V.R.P.C. 1.6(c) (1999).
Amended V.R.P.C. 1.6(c)(1) makes clear that a lawyer may, but is not required to, disclose client information to prevent a crime other than one threatening likely death or substantial bodily harm. There is no general permission to disclose merely tortious conduct. As the Vermont additions to Comment [10] explain, however, there is such an exception where the noncriminal conduct is a threat of suicide or other serious harm to the potential actor. Cf. Rule 1.14(c). In making a decision to disclose under this provision, competent representation would call for a lawyer to seek appropriate professional consultation if available. See Comment [16]. V.R.P.C. 1.6(c)(2), which is new, adopts Model Rule 1.6(b)(4).
Former V.R.P.C. 1.6(c)(2), redesignated as (3), is unchanged and continues to track former Model Rule 1.6(b)(2), which has been redesignated as (5). The ABA Reporter’s Explanation of the amendments to Model Rules 1.6(b) is as follows in pertinent part:
Paragraph (b)(1): Modify to permit [require in the Vermont rule] disclosure to ‘‘prevent [likely] death or substantial bodily harm’’
… This change is in accord with Section 66 of the American Law Institute’s Restatement of the Law Governing Lawyers. The Rule replaces ‘‘imminent’’ with [‘‘likely’’] to include a present and substantial threat that a person will suffer such injury at a later date, as in some instances involving toxic [discharges].
Paragraph (b)(2): Add paragraph permitting [requiring in the Vermont rule] disclosure to prevent client crimes or frauds reasonably certain to cause substantial economic injury and in which client has used or is using lawyer’s services
The Commission recommends that a lawyer be permitted [required in the Vermont rule] to reveal information relating to the representation to the extent necessary to prevent the client from committing a crime or fraud reasonably certain to result in substantial economic loss, but only when the lawyer’s services have been or are being used in furtherance of the crime or fraud. Use of the lawyer’s services for such improper ends constitutes a serious abuse of the client-lawyer relationship. The client’s entitlement to the protection of the Rule must be balanced against the prevention of the injury that would otherwise be suffered and the interest of the lawyer in being able to prevent the misuse of the lawyer’s services. Moreover, with respect to future conduct, the client can easily prevent the harm of disclosure by refraining from the wrongful conduct. See also Comment [7].
Support for the Commission’s proposal can be found in the eight jurisdictions that permit disclosure 56 when clients threaten crimes or frauds likely to result in substantial injury to the financial or property interests of another and the 25 jurisdictions that permit a lawyer to reveal the intention of a client to commit any crime. The Commission’s proposal is also in accord with Section 67 of the American Law Institute’s Restatement of the Law Governing Lawyers.
Paragraph (b)(3): Add paragraph permitting [requiring in the Vermont rule] disclosure to prevent, mitigate or rectify substantial economic loss resulting from client crime or fraud in which client has used lawyer’s services
The rationale for this exception is the same as that for paragraph (b)(2), the only difference being that the client no longer can prevent disclosure by refraining from the crime or fraud. See also Comment [8]. The Commission believes that the interests of the affected persons in mitigating or recouping their substantial losses and the interest of the lawyer in undoing a wrong in which the lawyer’s services were unwittingly used outweigh the interests of a client who has so abused the client-lawyer relationship. Support for the Commission’s proposal can be found in the 13 jurisdictions that permit disclosure to rectify the consequences of a crime or fraud in the commission of which the client used the lawyer’s services. The proposal is also in accord with Section 67 of the American Law Institute’s Restatement of the Law Governing Lawyers. The
ABA Reporter’s Explanation of Model Rule 1.6(b)(4) is as follows:
Questions have been raised regarding the propriety of a lawyer revealing confidential information in order to secure legal advice regarding the lawyer’s obligations under the Rules, including the lawyer’s duty not to counsel or assist clients in crimes or frauds. In most instances, disclosing information to secure such advice is impliedly authorized. Nevertheless, in order to clarify that such disclosures are proper even when not impliedly authorized, the Commission recommends that such disclosures be explicitly permitted under this Rule.
It is of overriding importance, both to lawyers and to society at large, that lawyers be permitted to secure advice regarding their legal obligations. Moreover, clients are adequately protected by the requirement that such disclosures be made only when protected by the attorney-client evidentiary privilege. See also [Vermont Comment [11]].
The ABA Reporter’s Explanation of the amendments to Comments [1]-[5] is as follows:
The points made in these Comments [first three paragraphs of former Vermont Comments] have been incorporated into Comment [2]. No change in substance is intended.
[1] This new Comment provides cross-references to the other Rules that protect clients, prospective clients and former clients against the disclosure or adverse use of information relating to the representation.
[2] This modification of [former ABA] Comment [4] combines material in [former ABA] Comments [1] through [4] into a single Comment setting forth the rationale for the confidentiality duty. No change in substance is intended.
[3] [Former ABA] Comment [5] has been edited slightly to clarify that the work-product doctrine is separate from the attorney-client evidentiary privilege. No change in substance is intended. Given that Rule 1.6 contains no suggestion that there might be an exception for government lawyers who disagree with government policy, the Commission recommends the deletion of [former ABA] Comment [6] as unnecessary.
[4] This new Comment reminds lawyers that the prohibition applies even when the disclosure does not itself reveal protected information but could lead to the discovery of such information, including the use of a hypothetical that poses an unreasonable risk that the listener will ascertain protected information. No change in substance is intended.
[5] This Comment combines and makes minor stylistic changes to [former ABA] Comments [7] and [8]. No change in substance is intended.
Amended ABA Comments [6] and [7] have been modified in the Vermont amendments to reflect the mandatory nature of the disclosures required by V.R.P.C. 1.6(b). The intent of the last three sentences of Comment [6] is described in the ABA Reporter’s Explanation as follows: ‘‘This new Comment … states the rationale for the exception recognized in paragraph (b)(1)-disclosures to prevent reasonably certain death or substantial bodily harm. It also explains when such harm is reasonably certain, providing an illustration.’’ The intent of Comment [7] is to provide ‘‘the rationale for paragraph (b)(2)-disclosure to prevent future crimes or frauds threatening substantial economic harm. It also provides a cross-reference to Rules 1.2 and 1.16, which govern the lawyer’s conduct regardless of whether the lawyer chooses to exercise the lawyer’s discretion to disclose. Id.
The paragraphs between Comments [6] and [7] (former ABA Comments [10]-[17]) have been deleted because their ‘‘substance has been included in various new Comments [e.g., Comments [6], [7]]. The caption ‘‘Withdrawal’’ has also been deleted. Id.
The intent of Comment [8] is described in the ABA Reporter’s Explanation as follows: ‘‘This new Comment provides the rationale for the exception recognized in paragraph (b)(3)disclosure to prevent, mitigate or rectify substantial economic loss resulting from a client’s past crimes or frauds in the furtherance of which the client has used the lawyer’s services.’’
Comment [9] incorporates the language of amended ABA Comments [12] and [13] in the context of explaining the permissive nature of the disclosures covered by V.R.P.C. 1.6(c). The final sentence in the Vermont Comment reflects the distinction between disclosures required by these Rules and those required by other law or court order found in V.R.P.C. 1.6(b), (c), discussed above. The ABA Reporter’s Explanation notes that the subject of both comments is covered in former ABA Comments [20] and [21] (deleted following Vermont Comment [15] and that ‘‘No change in substance is intended.’’
Comment [10] explains V.R.P.C. 1.6(c)(1) and carries forward the essence of the fourth paragraph deleted between Comments [6] and [7].
Comment [11] ‘‘provides the rationale for the exception recognized in paragraph [(c)(2)]securing confidential legal advice about the lawyer’s personal responsibility to comply with the Rules.’’ ABA Reporter’s Explanation to ABA Comment [9]. ‘‘The caption [‘Dispute Concerning a Lawyer’s Conduct‘] has been deleted as no longer necessary.’’ Id .
Amended Comment [12] ‘‘is derived from [former] Comment [18]. The new third sentence is taken from [former ABA] Comment [19]. The deleted last sentence has been incorporated into [Vermont] Comment [14]. No change in substance is intended.’’ Id.
Amended Comment [13] ‘‘contains the core of [former ABA] Comment [19] that addresses disclosure necessary to collect a lawyer’s fees. The deleted second sentence has been included in [Vermont Comment [12]] and the deleted last sentence has been incorporated into [Vermont] Comment [14]. No change in substance is intended.’’ Id.
[14] The ABA Reporter’s Explanation of Comment [14] is as follows: ‘‘Combining points made in [former ABA] Comments [14], [18] and [19], this new Comment explains the Rule 1.6(b) requirement that disclosure be limited to information the lawyer reasonably believes is needed to accomplish the purpose for which disclosure is permitted. It emphasizes remonstrating with the client to take appropriate action, disclosing no more than necessary and, where appropriate, seeking protective orders against further dissemination of the information. No change in substance is intended.’’
[15] This Comment differs from ABA Comment [15] in order to reflect the distinction between mandatory and permissive disclosure in V.R.P.C. 1.6(b), (c). The ABA Reporter’s Explanation of Comment [15] is as follows: ‘‘This new Comment incorporates the substance of [former ABA] Comment [14] [deleted between Vermont Comments [6] and [7]]. A new introductory sentence has been added, and the beginning of the second sentence has been revised for stylistic reasons. The last [sentence provides] a cross-reference to other Model Rules that may require disclosure.’’
The caption and the two paragraphs between Comments [15] and [16] have been deleted because these matters are now discussed in Comment [9].
The ABA Reporter’s Explanation of Comments [16] and [17] is as follows:
Caption. This new caption has been added to call attention to the two new Comments that discuss the requirement that lawyers act competently and diligently to preserve confidentiality.
[16] This new Comment cross-references Rules 1.1, 5.1 and 5.3, calling attention to the responsibility of the lawyer to act competently to safeguard information relating to the representation. A number of states have retained the formulation of ABA Model Code of Professional Responsibility DR 4-101(D), ‘‘A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.‘ Much of the recent discourse about confidentiality has focused on the lawyer’s duty to act competently to prevent disclosure. The Commission believes this issue is important and ought to be flagged in the Comment. No change in substance, however, is intended.
[17] This new Comment addresses the lawyer’s duty of care when transmitting confidential information. Although much of the current debate concerns the use of unencrypted e-mail, the Comment speaks more generally in terms of special security measures and reasonable expectations of privacy. It takes a case-by-case approach to the problem. The Commission believes this Comment is consistent with the prevailing resolution of this issue in recent ethics committee decisions.
Comment [18] is identical to ABA Comment [18] and to the last sentence of the original Vermont Comment, ‘‘with the addition of cross-references to Rule 1.9(c)(1) and (2).’’ ABA Reporter’s Explanation.
Reporter’s Notes
This rule represents a significant departure from the Vermont Code. It imposes a duty of confidentiality concerning information relating to the representation regardless of whether it is acquired before or after the relationship existed. The information must be kept confidential regardless of whether the client indicates a desire for confidentiality or whether disclosure of particular information might be embarrassing or detrimental.
The rule further departs from both the Vermont Code and the Model Rule by requiring a lawyer to disclose information necessary to prevent a crime that involves the risk of death or substantial bodily harm. A similar modification of the Model Rules has been adopted in a number of states. See, e.g., Ariz. R. Prof. Conduct, Rule 1.6(b); Conn. R. Prof. Conduct, Rule 1.6(b); Ill. R. Prof. Conduct, Rule 1.6(b). The proposed rule reflects a judgment that the values underlying client confidentiality are outweighed by the need to protect human life. See A.J. Taylor, ‘‘Work in Progress: The Vermont Rules of Professional Conduct,’’ 20 Vt. L. Rev. 901, 905-10 (1996). In any event, there may be a common-law duty to disclose in such circumstances. Cf. Peck v. Counseling Service, 146 Vt. 61, 499 A.2d 422 (1985).
The proposed rule also departs from the Model Rule by carrying forward the express exceptions from present DR 4-101 for disclosures required by other provisions of the rules, by other law, or by court order. Disclosures required by other rules are mandatory under Rule 1.6(b), as noted in the comment, to avoid any implication that the requirements of those provisions are subject to Rule 1.6. To avoid confusion, a disclosure obligation contained in Model Rule 4.1(b) for information that would avoid assisting a criminal or fraudulent act by a client is placed here in paragraph (b)(2) and is made absolute. See Reporter’s Note to Rule 4.1. All other disclosures required by other law or by court order are permissive under Rule 1.6(c). A lawyer willing to take the risk of contempt or other legal penalties on behalf of the client should not also be subject to professional discipline for nondisclosure.
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