OFFICIAL

2016
CONNECTICUT PRACTICE BOOK

(Revision of 1998)

CONTAINING

RULES OF PROFESSIONAL CONDUCT

CODE OF JUDICIAL CONDUCT

RULES FOR THE SUPERIOR COURT

RULES OF APPELLATE PROCEDURE

APPENDIX OF FORMS

INDEX OF OFFICIAL JUDICIAL BRANCH FORMS

Published by

The Commission on Official Legal Publications

 Copyrighted by the Secretary of the State of the State of Connecticut

  2016 by the Secretary of the State, State of Connecticut

 Copyrighted by the Secretary of the State of the State of Connecticut

 EXPLANATORY NOTES
The Superior Court Rules as organized herein were first published in the Connecticut Law
Journal dated July 29, 1997. This 2016 edition of the Practice Book contains amendments
to the Rules of Professional Conduct, Superior Court Rules, and Rules of Appellate Procedure.
The amendments were published in the Connecticut Law Journals dated June 30 and October
6, 2015. A correction to the effective date of the amendment to Section 17-32 was published
in the Connecticut Law Journal dated July 7, 2015.
A parenthetical notation about the origin of each rule is found at the end of every section
in this volume. The notation (P.B. 1978-1997, Sec. ) indicates the number of the section
in the 1978-1997 Practice Book corresponding to the current section. Current numbers of
any sections corresponding to the sections in the 1978-1997 Practice Book appear in the
Reference Tables following the text of the rules. The notation (1998) indicates that the section
was new in the 1998 Practice Book, taking effect October 1, 1997. The notation (See P.B.
1978-1997, Sec. ) (1998) indicates that the section was modeled on a rule in the 1978-
1997 Practice Book but was actually adopted for the first time to take effect October 1, 1997.
There may be significant differences between the rules in this volume and those in the
1978- 1997 Practice Book on which they were modeled. The temporary numbers assigned
to those rules in the July 29, 1997 Connecticut Law Journal, where they were originally
published, appear in the Reference Tables following the text of the rules.
Where a section was adopted or amended after 1997, a parenthetical notation to that effect
appears either immediately following the text of the section or following the parenthetical
notation concerning the derivation of the section. Where the title to a section has been
amended, a parenthetical notation appears immediately following the title. The Table of
Practice Book Changes, following the text of the rules, documents the dates on which rules
were adopted, repealed, amended, or transferred to another section.
Histories describing the nature of amendments and Commentaries indicating the intended
purpose of new rules or amendments to existing rules are printed following the text of new
or amended rules. Histories and Commentaries are included for only those rules that were
adopted or amended to take effect in the year corresponding to the current edition of the
Practice Book, with the following exceptions: (1) the Histories and Commentaries to the rules
on sealing of files and closure of the courtroom will be retained on a cumulative basis, and
(2) the Commentaries to Sections 1-10B, 61-8, 61-10, 62-8A, 67-8 and 68-1 will be retained
on a cumulative basis. Users wanting to access the Histories documenting rule changes and
Commentaries to new or amended rules, in a given year, should not discard the corresponding
edition of the Practice Book. For example, Histories and Commentaries corresponding to rule
changes to take effect January 1, 2016, will appear only in the 2016 edition of the Practice
Book and not in subsequent editions, unless the rule falls into one of the two exceptions,
listed above.
The Commentaries to the rules of practice are included in this volume for informational
purposes only. Commentaries to those rules are not adopted by the Judges and Justices
when they vote to adopt proposed rule changes. Commentaries to the Rules of Professional
Conduct and Code of Judicial Conduct are adopted by the Judges and Justices and are
printed in every edition of the Practice Book.
Beginning in 2000, Amendment Notes were incorporated into the Rules of Professional
Conduct and the Code of Judicial Conduct. Those notes, approved by the Rules Committee
iii
 Copyrighted by the Secretary of the State of the State of Connecticut
of the Superior Court to explain the revisions to the Rules of Professional Conduct and Code
of Judicial Conduct, appear only in the edition of the Practice Book corresponding to the year
of the revision and not in subsequent editions.
The system used to number each section is based on the chapter in which the section is
located. Each section has a two part number. The first part of the number designates the
chapter, and the second part designates the number of the section within that chapter. (Chapter
1 begins with 1-1, chapter 2 with 2-1, etc.) The internal breakdown of individual rules follows
the style of the General Statutes. Subsections are designated by lower case letters in parenthe-
ses, (a), (b), subdivisions are designated by numbers in parentheses, (1), (2), and subpara-
graphs are designated by upper case letters in parentheses, (A), (B).
The Rules of Appellate Procedure, as well as the Superior Court Rules, were reorganized
in 1998. The reorganization of the Rules of Appellate Procedure was completed subsequent
to the publication of the July 29, 1997 Connecticut Law Journal and was published in this
volume for the first time in 1998. The goal in reorganizing the Rules of Appellate Procedure
was to present them in the order in which an appellant might approach the appeal process,
i.e., rules on whether to appeal, how to file, what to do next, when argument will take place,
opinions and reargument. Rules on various special proceedings were organized into separate
chapters. No substantive changes were made in the course of reorganization, but there were
editorial changes.
In the Connecticut Law Journal of June 25, 2013, certain rules pertaining to the preparation
of the appellate record were amended, adopted and/or repealed. This edition of the Practice
Book contains two versions of each of those rules, indicating whether the rule is applicable
to appeals filed before July 1, 2013, or applicable to appeals filed on or after July 1, 2013.
There is, however, only one version of Section 68-1 in this edition. That rule was amended
twice in 2013 and three versions were published in the 2014 edition of the Practice Book.
In 2002, an Appendix was added following the Index. The Appendix contains certain forms
that previously had been in Volume 2 of the 1978-1997 Practice Book. In 2010, an Index of
Official Judicial Branch Forms used in Civil, Family and Juvenile Matters was added to the
Practice Book, following the Appendix of Forms. In 2012, the Appendix of Superior Court
Standing Orders, which was added in 2010, was removed. A notice referring the reader to
the Judicial Branch website for access to the Superior Court Standing Orders was substituted
in its place.
Effective January 1, 2003, the rules pertaining to procedure in juvenile matters were
amended and reorganized. The amendments initially were published in the Connecticut Law
Journal of July 23, 2002. The July 23, 2002 Connecticut Law Journal gave notice that the
rules on juvenile matters, which, since 1998, had been found in chapters 26 through 35, had
been moved to chapters 26a through 35a. In the Practice Book itself, however, the original
numbers of the juvenile rules were retained wherever possible.
Every year certain nonsubstantive, technical editorial changes are made to a number of
the rules. Some, but not all, of these changes are explained in Technical Change notes.

iv
 Copyrighted by the Secretary of the State of the State of Connecticut
 TABLE OF CONTENTS
Attorney’s Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Rules of Professional Conduct
Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rules and Commentaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Code of Judicial Conduct
Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Canons, Rules and Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Superior Court Rules and Rules of Appellate Procedure
Chapter and Section Headings of the Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Superior Court—General Provisions
Chapter 1 Scope of Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Chapter 2 Attorneys. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Chapter 3 Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Chapter 4 Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Chapter 5 Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Chapter 6 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Chapter 7 Clerks; Files and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Superior Court—Procedure in Civil Matters
Chapter 8 Commencement of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Chapter 9 Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Chapter 10 Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Chapter 11 Motions, Requests, Orders of Notice, and Short Calendar . . . . . . . . . . . . . . 200
Chapter 12 Transfer of Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
Chapter 13 Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Chapter 14 Dockets, Trial Lists, Pretrials and Assignment Lists . . . . . . . . . . . . . . . . . . 229
Chapter 15 Trials in General; Argument by Counsel . . . . . . . . . . . . . . . . . . . . . . . . 236
Chapter 16 Jury Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Chapter 17 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Chapter 18 Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Chapter 19 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Chapter 20 Hearings in Chambers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Chapter 21 Receivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Chapter 22 Unemployment Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Chapter 23 Miscellaneous Remedies and Procedures . . . . . . . . . . . . . . . . . . . . . . . 270
Chapter 24 Small Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
Superior Court—Procedure in Family Matters
Chapter 25 General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Superior Court—Procedure in Family Support Magistrate Matters
Chapter 25a Family Support Magistrate Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Superior Court—Procedure in Juvenile Matters
Chapter 26 General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
v
 Copyrighted by the Secretary of the State of the State of Connecticut
Chapter 27 Reception and Processing of Delinquency and Family with Service Needs Com-
plaints or Petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Chapter 28 Delinquency and Family with Service Needs Nonjudicial Supervision [Repealed] . 321
Chapter 29 Reception and Processing of Delinquency and Child from Family with Service Needs
Petitions and Delinquency Informations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Chapter 30 Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
Chapter 30a Delinquency and Family with Service Needs Hearings. . . . . . . . . . . . . . . . 326
Chapter 31 Delinquency and Family with Service Needs Hearing [Repealed] . . . . . . . . . . 329
Chapter 31a Delinquency and Family with Service Needs Motions and Applications . . . . . . 330
Chapter 32 Neglected, Uncared for and Dependent Children and Termination of Parental Rights
[Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Chapter 32a Rights of Parties, Neglected, Abused and Uncared for Children and Termination
of Parental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
Chapter 33 Hearings concerning Neglected, Uncared for and Dependent Children and Termina-
tion of Parental Rights [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Chapter 33a Petitions for Neglect, Uncared for, Dependency and Termination of Parental Rights:
Initiation of Proceedings, Orders of Temporary Custody and Preliminary Hearings . . . . . 341
Chapter 34 Rights of Parties [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
Chapter 34a Pleadings, Motions and Discovery Neglected, Abused and Uncared for Children
and Termination of Parental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
Chapter 35 General Provisions [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Chapter 35a Hearings concerning Neglected, Abused and Uncared for Children and Termination
of Parental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Superior Court—Procedure in Criminal Matters
Chapter 36 Procedure Prior to Appearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Chapter 37 Arraignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Chapter 38 Pretrial Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Chapter 39 Disposition without Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
Chapter 40 Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Chapter 41 Pretrial Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
Chapter 42 Trial Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
Chapter 43 Sentencing, Judgment, and Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
Chapter 44 General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
Rules of Appellate Procedure
Chapter 60 General Provisions Relating to Appellate Rules and Appellate Review . . . . . . . 423
Chapter 61 Remedy by Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
Chapter 62 Chief Judge, Appellate Clerk and Docket: General Administrative Matters . . . . . 438
Chapter 63 Filing the Appeal; Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
Chapter 64 Procedure concerning Memorandum of Decision . . . . . . . . . . . . . . . . . . . 453
Chapter 65 Transfer of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454
Chapter 66 Motions and Other Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456
Chapter 67 Briefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
Chapter 68 Case File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
Chapter 69 Assignment of Cases for Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
Chapter 70 Arguments and Media Coverage of Court Proceedings . . . . . . . . . . . . . . . . 481
Chapter 71 Appellate Judgments and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
Chapter 72 Writs of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487
Chapter 73 Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489
Chapter 74 Appeals from Judicial Review Council. . . . . . . . . . . . . . . . . . . . . . . . . . 491
Chapter 75 Appeals from Council on Probate Judicial Conduct . . . . . . . . . . . . . . . . . . 494
Chapter 76 Appeals in Workers’ Compensation Cases . . . . . . . . . . . . . . . . . . . . . . . 495
vi
 Copyrighted by the Secretary of the State of the State of Connecticut
Chapter 77 Procedures concerning Court Closure and Sealing Orders or Orders Limiting the
Disclosure of Files, Affidavits, Documents or Other Material . . . . . . . . . . . . . . . . . 497
Chapter 78 Review of Grand Jury Record or Finding Order . . . . . . . . . . . . . . . . . . . . 499
Chapter 78a Review of Orders concerning Release on Bail . . . . . . . . . . . . . . . . . . . . 500
Chapter 79 Appeals in Juvenile Matters [Repealed] . . . . . . . . . . . . . . . . . . . . . . . . . 501
Chapter 79a Appeals in Child Protection Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 502
Chapter 80 Appeals in Habeas Corpus Proceedings Following Conviction . . . . . . . . . . . . 507
Chapter 81 Appeals to Appellate Court by Certification for Review in Accordance with General
Statutes Chapters 124 and 440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Chapter 82 Certified Questions to or from Courts of Other Jurisdictions . . . . . . . . . . . . . 511
Chapter 83 Certification Pursuant to General Statutes § 52-265a in Cases of Substantial Public
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
Chapter 84 Appeals to Supreme Court by Certification for Review . . . . . . . . . . . . . . . . 514
Chapter 84a Matters within Supreme Court’s Original Jurisdiction in which Facts May Be Found 519
Chapter 85 Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520
Chapter 86 Rule Changes; Effective Date; Applicability . . . . . . . . . . . . . . . . . . . . . . . 521
Tables and Index
Reference Table 1978-1997 to 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
Reference Table 1998 to 1978-1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 536
Table of Practice Book Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547
Table of Statutes Noted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563
Appendix: Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599
Index of Official Judicial Branch Forms Used in Civil, Family and Juvenile Matters . . . . . . . 635
Superior Court Standing Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639

vii
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT

THE ATTORNEY’S OATH

You solemnly swear or solemnly and sincerely affirm, as the case may be, that you will do
nothing dishonest, and will not knowingly allow anything dishonest to be done in court, and
that you will inform the court of any dishonesty of which you have knowledge; that you will not
knowingly maintain or assist in maintaining any cause of action that is false or unlawful; that
you will not obstruct any cause of action for personal gain or malice; but that you will exercise
the office of attorney, in any court in which you may practice, according to the best of your
learning and judgment, faithfully, to both your client and the court; so help you God or upon
penalty of perjury. (General Statutes § 1-25 and annotations.)
(Amended pursuant to Public Act 02-71 to take effect Oct. 1, 2002.)

RULES OF PROFESSIONAL CONDUCT

Preamble
Scope
Rules
Commentaries

Preamble: A Lawyer’s Responsibilities In all professional functions a lawyer should be

A lawyer, as a member of the legal profession, competent, prompt and diligent. A lawyer should
is a representative of clients, an officer of the maintain communication with a client concerning
legal system and a public citizen having special the representation. A lawyer should keep in confi-
responsibility for the quality of justice. dence information relating to representation of a
As a representative of clients, a lawyer per- client except so far as disclosure is required or
forms various functions. As advisor, a lawyer pro- permitted by the Rules of Professional Conduct
vides a client with an informed understanding of or other law.
the client’s legal rights and obligations and A lawyer’s conduct should conform to the
explains their practical implications. As advocate, requirements of the law, both in professional ser-
a lawyer zealously asserts the client’s position vice to clients and in the lawyer’s business and
under the rules of the adversary system. As nego- personal affairs. A lawyer should use the law’s
tiator, a lawyer seeks a result advantageous to the procedures only for legitimate purposes and not
client but consistent with requirements of honest to harass or intimidate others. A lawyer should
dealing with others. As evaluator, a lawyer exam- demonstrate respect for the legal system and for
ines a client’s legal affairs and reports about them those who serve it, including judges, other lawyers
to the client or to others on the client’s behalf. and public officials. While it is a lawyer’s duty,
In addition to these representational functions, when necessary, to challenge the rectitude of offi-
a lawyer may serve as a third-party neutral, a cial action, it is also a lawyer’s duty to uphold
nonrepresentational role helping the parties to legal process.
resolve a dispute or other matter. Some of these As a public citizen, a lawyer should seek
Rules apply directly to lawyers who are or have improvement of the law, access to the legal sys-
served as third-party neutrals. See, e.g., Rules tem, the administration of justice and the quality
1.12 and 2.4. In addition, there are Rules that of service rendered by the legal profession. As a
apply to lawyers who are not active in the practice member of a learned profession, a lawyer should
of law or to practicing lawyers even when they cultivate knowledge of the law beyond its use for
are acting in a nonprofessional capacity. For clients, employ that knowledge in reform of the
example, a lawyer who commits fraud in the con- law and work to strengthen legal education. All
duct of a business is subject to discipline for lawyers should work to ensure equal access to
engaging in conduct involving dishonesty, fraud, our system of justice for all those who, because
deceit or misrepresentation. See Rule 8.4. of economic or social barriers, cannot afford or
1
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT

secure adequate legal counsel. A lawyer should also helps maintain the legal profession’s inde-
aid the legal profession in pursuing these objec- pendence from government domination. An inde-
tives and should help the bar regulate itself in the pendent legal profession is an important force in
public interest. preserving government under law, for abuse of
Many of a lawyer’s professional responsibilities legal authority is more readily challenged by a
are prescribed in the Rules of Professional Con- profession whose members are not dependent on
duct, as well as substantive and procedural law. government for the right to practice.
However, a lawyer is also guided by personal The legal profession’s relative autonomy car-
conscience and the approbation of professional ries with it special responsibilities of self-govern-
peers. A lawyer should strive to attain the highest ment. The profession has a responsibility to
level of skill, to improve the law and the legal assure that its regulations are conceived in the
profession and to exemplify the legal profession’s public interest and not in furtherance of parochial
ideals of public service. or self-interested concerns of the bar. Every law-
A lawyer’s responsibilities as a representative yer is responsible for observance of the Rules of
of clients, an officer of the legal system and a Professional Conduct. A lawyer should also aid
public citizen are usually harmonious. Thus, when in securing their observance by other lawyers.
an opposing party is well represented, a lawyer Neglect of these responsibilities compromises the
can be a zealous advocate on behalf of a client independence of the profession and the public
and at the same time assume that justice is being interest which it serves.
done. So also, a lawyer can be sure that preserv- Lawyers play a vital role in the preservation of
ing client confidences ordinarily serves the public society. The fulfillment of this role requires an
interest because people are more likely to seek understanding by lawyers of their relationship to
legal advice, and thereby heed their legal obliga- our legal system. The Rules of Professional Con-
tions, when they know their communications will duct, when properly applied, serve to define
be private. that relationship.
In the nature of law practice, however, conflict- (Amended June 26, 2006, to take effect Jan. 1, 2007.)
ing responsibilities are encountered. Virtually all
difficult ethical problems arise from conflict Scope
between a lawyer’s responsibilities to clients, to The Rules of Professional Conduct are rules of
the legal system and to the lawyer’s own interest reason. They should be interpreted with reference
in remaining an ethical person while earning a to the purposes of legal representation and of the
satisfactory living. The Rules of Professional Con- law itself. Some of the Rules are imperatives, cast
duct often prescribe terms for resolving such con- in the terms ‘‘shall’’ or ‘‘shall not.’’ These define
flicts. Within the framework of these Rules, proper conduct for purposes of professional disci-
however, many difficult issues of professional dis- pline. Others, generally cast in the term ‘‘may,’’
cretion can arise. Such issues must be resolved are permissive and define areas under the Rules
through the exercise of sensitive professional and in which the lawyer has discretion to exercise pro-
moral judgment guided by the basic principles fessional judgment. No disciplinary action should
underlying the Rules. These principles include the be taken when the lawyer chooses not to act or
lawyer’s obligation zealously to protect and pur- acts within the bounds of such discretion. Other
sue a client’s legitimate interests, within the Rules define the nature of relationships between
bounds of the law, while maintaining a profes- the lawyer and others. The Rules are thus partly
sional, courteous and civil attitude toward all per- obligatory and disciplinary and partly constitutive
sons involved in the legal system. and descriptive in that they define a lawyer’s pro-
The legal profession is largely self-governing. fessional role.
Although other professions also have been The Rules presuppose a larger legal context
granted powers of self-government, the legal pro- shaping the lawyer’s role. That context includes
fession is unique in this respect because of the court rules and statutes relating to matters of licen-
close relationship between the profession and the sure, laws defining specific obligations of lawyers
processes of government and law enforcement. and substantive and procedural law in general.
This connection is manifested in the fact that ulti- Compliance with the Rules, as with all law in an
mate authority over the legal profession is vested open society, depends primarily upon under-
largely in the courts. standing and voluntary compliance, secondarily
To the extent that lawyers meet the obligations upon reinforcement by peer and public opinion
of their professional calling, the occasion for gov- and finally, when necessary, upon enforcement
ernment regulation is obviated. Self-regulation through disciplinary proceedings. The Rules do
2
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT

not, however, exhaust the moral and ethical con- Violation of a Rule should not itself give rise to
siderations that should inform a lawyer, for no a cause of action against a lawyer nor should it
worthwhile human activity can be completely create any presumption that a legal duty has been
defined by legal rules. The Rules simply provide breached. In addition, violation of a Rule does
a framework for the ethical practice of law. not necessarily warrant any other nondisciplinary
Furthermore, for purposes of determining the remedy, such as disqualification of a lawyer in
lawyer’s authority and responsibility, principles of pending litigation. The Rules are designed to pro-
substantive law external to these Rules determine vide guidance to lawyers and to provide a struc-
whether a client-lawyer relationship exists. Most ture for regulating conduct through disciplinary
of the duties flowing from the client-lawyer rela- agencies. They are not designed to be a basis
tionship attach only after the client has requested for civil liability. Furthermore, the purpose of the
the lawyer to render legal services and the lawyer Rules can be subverted when they are invoked
has agreed to do so. But there are some duties, by opposing parties as procedural weapons. The
such as that of confidentiality under Rule 1.6, that fact that a Rule is a just basis for a lawyer’s self-
attach when the lawyer agrees to consider
assessment, or for sanctioning a lawyer under the
whether a client-lawyer relationship shall be
established. See Rule 1.18. Whether a client-law- administration of a disciplinary authority, does not
yer relationship exists for any specific purpose imply that an antagonist in a collateral proceeding
can depend on the circumstances and may be a or transaction has standing to seek enforcement
question of fact. of the Rule. Nevertheless, since the Rules do
Under various legal provisions, including con- establish standards of conduct by lawyers, a law-
stitutional, statutory and common law, the respon- yer’s violation of a Rule may be evidence of
sibilities of government lawyers may include breach of the applicable standard of conduct.
authority concerning legal matters that ordinarily Moreover, these Rules are not intended to gov-
reposes in the client in private client-lawyer rela- ern or affect judicial application of either the attor-
tionships. For example, a lawyer for a government ney-client or work product privilege. Those
agency may have authority on behalf of the gov- privileges were developed to promote compliance
ernment to decide upon settlement or whether to with law and fairness in litigation. In reliance on
appeal from an adverse judgment. Such authority the attorney-client privilege, clients are entitled to
in various respects is generally vested in the attor- expect that communications within the scope of
ney general and the state’s attorney in state gov- the privilege will be protected against compelled
ernment, and their federal counterparts, and the disclosure. The attorney-client privilege is that of
same may be true of other government law offi- the client and not of the lawyer. The fact that in
cers. Also, lawyers under the supervision of these exceptional situations the lawyer under the Rules
officers may be authorized to represent several has a limited discretion to disclose a client confi-
government agencies in intragovernmental legal dence does not vitiate the proposition that, as a
controversies in circumstances where a private general matter, the client has a reasonable expec-
lawyer could not represent multiple private clients. tation that information relating to the client will
They also may have authority to represent the not be voluntarily disclosed and that disclosure of
‘‘public interest’’ in circumstances where a private such information may be judicially compelled only
lawyer would not be authorized to do so. These in accordance with recognized exceptions to the
Rules do not abrogate any such authority. attorney-client and work product privileges.
Failure to comply with an obligation or prohibi- The lawyer’s exercise of discretion not to dis-
tion imposed by a Rule is a basis for invoking the
close information under Rule 1.6 should not be
disciplinary process. The Rules presuppose that
subject to reexamination. Permitting such reex-
disciplinary assessment of a lawyer’s conduct will
be made on the basis of the facts and circum- amination would be incompatible with the general
stances as they existed at the time of the conduct policy of promoting compliance with law through
in question and in recognition of the fact that a assurances that communications will be protected
lawyer often has to act upon uncertain or incom- against disclosure.
plete evidence of the situation. Moreover, the The Commentary accompanying each Rule
Rules presuppose that whether or not discipline explains and illustrates the meaning and purpose
should be imposed for a violation, and the severity of the Rule. The Preamble and this note on Scope
of a sanction, depend on all the circumstances, provide general orientation. The Commentaries
such as the wilfulness and seriousness of the are intended as guides to interpretation, but the
violation, extenuating factors and whether there text of each Rule is authoritative. Commentaries
have been previous violations. do not add obligations to the Rules but provide
3
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT

guidance for practicing in compliance with the matters of licensure, laws defining specific obliga-
Rules. The Commentaries are sometimes used tions of lawyers and substantive and procedural
to alert lawyers to their responsibilities under other law in general.
law, such as court rules and statutes relating to (Amended June 26, 2006, to take effect Jan. 1, 2007.)

RULES OF PROFESSIONAL CONDUCT

Rule Rule
1.0. Terminology 3.9. Advocate in Nonadjudicative Proceedings

Client-Lawyer Relationships Transactions with Persons Other than Clients

1.1. Competence 4.1. Truthfulness in Statements to Others
4.2. Communication with Person Represented by Counsel
1.2. Scope of Representation and Allocation of Authority
4.3. Dealing with Unrepresented Person
between Client and Lawyer
4.4. Respect for Rights of Third Persons
1.3. Diligence
1.4. Communication Law Firms and Associations
1.5. Fees 5.1. Responsibilities of Partners, Managers, and Supervi-
1.6. Confidentiality of Information sory Lawyers
1.7. Conflict of Interest: Current Clients 5.2. Responsibilities of a Subordinate Lawyer
1.8. Conflict of Interest: Prohibited Transactions 5.3. Responsibilities regarding Nonlawyer Assistance
1.9. Duties to Former Clients 5.4. Professional Independence of a Lawyer
1.10. Imputation of Conflicts of Interest: General Rule 5.5. Unauthorized Practice of Law
1.11. Special Conflicts of Interest for Former and Current 5.6. Restrictions on Right to Practice
Government Officers and Employees
1.12. Former Judge, Arbitrator, Mediator or Other Third- Public Service
Party Neutral 6.1. Pro Bono Publico Service
1.13. Organization as Client 6.2. Accepting Appointments
1.14. Client with Impaired Capacity 6.3. Membership in Legal Services Organization
1.15. Safekeeping Property 6.4. Law Reform Activities Affecting Client Interests
1.16. Declining or Terminating Representation 6.5. Nonprofit and Court-Annexed Limited Legal Ser-
1.17. Sale of Law Practice vices Programs
1.18. Duties to Prospective Client Information about Legal Services
Counselor 7.1. Communications concerning a Lawyer’s Services
7.2. Advertising
2.1. Advisor
7.3. Solicilation of Clients
2.2. Intermediary [Repealed]
7.4. Communication of Fields of Practice
2.3. Evaluation for Use by Third Persons 7.4A. Certification as Specialist
2.4. Lawyer Serving as Third-Party Neutral 7.4B. Legal Specialization Screening Committee
Advocate 7.4C. Application by Board or Entity to Certify Lawyers as
Specialists
3.1. Meritorious Claims and Contentions
7.5. Firm Names and Letterheads
3.2. Expediting Litigation
3.3. Candor toward the Tribunal Maintaining the Integrity of the Profession
3.4. Fairness to Opposing Party and Counsel 8.1. Bar Admission and Disciplinary Matters
3.5. Impartiality and Decorum 8.2. Judicial and Legal Officials
3.6. Trial Publicity 8.3. Reporting Professional Misconduct
3.7. Lawyer as Witness 8.4. Misconduct
3.8. Special Responsibilities of a Prosecutor 8.5. Disciplinary Authority; Choice of Law

Rule 1.0. Terminology (b) ‘‘Client’’ or ‘‘person’’ as used in these Rules

(a) ‘‘Belief’’ or ‘‘believes’’ denotes that the per- includes an authorized representative unless
son involved actually supposed the fact in ques- otherwise stated.
tion to be true. A person’s belief may be inferred (c) ‘‘Confirmed in writing,’’ when used in refer-
from circumstances. ence to the informed consent of a person, denotes
4
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.0

informed consent that is given in writing by the body, administrative agency or other body acting
person or a writing that a lawyer promptly trans- in an adjudicative capacity. A legislative body,
mits to the person confirming an oral informed administrative agency or other body acts in an
consent. See subsection (f) for the definition of adjudicative capacity when a neutral official, after
‘‘informed consent.’’ If it is not feasible to obtain the presentation of evidence or legal argument
or transmit the writing at the time the person gives by a party or parties, will render a binding legal
informed consent, then the lawyer must obtain or judgment directly affecting a party’s interests in a
transmit it within a reasonable time thereafter. particular matter.
(d) ‘‘Firm’’ or ‘‘law firm’’ denotes a lawyer or (o) ‘‘Writing’’ or ‘‘written’’ denotes a tangible or
lawyers in a law partnership, professional corpo- electronic record of a communication or represen-
ration, sole proprietorship or other association tation, including handwriting, typewriting, printing,
authorized to practice law; or lawyers employed photostatting, photography, audio or videore-
in a legal services organization or the legal depart- cording and electronic communications. A
ment of a corporation or other organization. ‘‘signed’’ writing includes an electronic sound,
(e) ‘‘Fraud’’ or ‘‘fraudulent’’ denotes conduct symbol or process attached to or logically associ-
that is fraudulent under the substantive or proce- ated with a writing and executed or adopted by a
dural law of the applicable jurisdiction and has a person with the intent to sign the writing.
purpose to deceive. (Amended June 26, 2006, to take effect Jan. 1, 2007;
(f) ‘‘Informed consent’’ denotes the agreement amended June 14, 2013, to take effect Jan. 1, 2014.)
COMMENTARY: Confirmed in Writing. If it is not feasible
by a person to a proposed course of conduct after to obtain or transmit a written confirmation at the time the
the lawyer has communicated adequate informa- client gives informed consent, then the lawyer must obtain or
tion and explanation about the material risks of transmit it within a reasonable time thereafter. If a lawyer has
and reasonably available alternatives to the pro- obtained a client’s informed consent, the lawyer may act in
posed course of conduct. reliance on that consent so long as it is confirmed in writing
(g) ‘‘Knowingly,’’ ‘‘known,’’ or ‘‘knows’’ denotes within a reasonable time thereafter.
Firm. Whether two or more lawyers constitute a firm within
actual knowledge of the fact in question. A per- subsection (d) can depend on the specific facts. For example,
son’s knowledge may be inferred from circum- two practitioners who share office space and occasionally
stances. consult or assist each other ordinarily would not be regarded
(h) ‘‘Partner’’ denotes a member of a partner- as constituting a firm. However, if they present themselves to
ship, a shareholder in a law firm organized as the public in a way that suggests that they are a firm or conduct
a professional corporation, or a member of an themselves as a firm, they should be regarded as a firm for
purposes of the Rules. The terms of any formal agreement
association authorized to practice law. between associated lawyers are relevant in determining
(i) ‘‘Reasonable’’ or ‘‘reasonably,’’ when used whether they are a firm, as is the fact that they have mutual
in relation to conduct by a lawyer, denotes the access to information concerning the clients they serve. Fur-
conduct of a reasonably prudent and competent thermore, it is relevant in doubtful cases to consider the under-
lawyer. lying purpose of the Rule that is involved. A group of lawyers
(j) ‘‘Reasonable belief’’ or ‘‘reasonably be- could be regarded as a firm for purposes of the Rule that the
same lawyer should not represent opposing parties in litigation,
lieves,’’ when used in reference to a lawyer, while it might not be so regarded for purposes of the Rule that
denotes that the lawyer believes the matter in information acquired by one lawyer is attributed to another.
question and that the circumstances are such that With respect to the law department of an organization,
the belief is reasonable. including the government, there is ordinarily no question that
(k) ‘‘Reasonably should know,’’ when used in the members of the department constitute a firm within the
meaning of the Rules of Professional Conduct. There can
reference to a lawyer, denotes that a lawyer of be uncertainty, however, as to the identity of the client. For
reasonable prudence and competence would example, it may not be clear whether the law department of
ascertain the matter in question. a corporation represents a subsidiary or an affiliated corpora-
(l) ‘‘Screened’’ denotes the isolation of a lawyer tion, as well as the corporation by which the members of the
from any participation in a matter through the department are directly employed. A similar question can arise
timely imposition of procedures within a firm that concerning an unincorporated association and its local
affiliates.
are reasonably adequate under the circum- Similar questions can also arise with respect to lawyers in
stances to protect information that the isolated legal aid and legal services organizations. Depending upon
lawyer is obligated to protect under these Rules the structure of the organization, the entire organization or
or other law. different components of it may constitute a firm or firms for
(m) ‘‘Substantial,’’ when used in reference to purposes of these Rules.
Fraud. When used in these Rules, the terms ‘‘fraud’’ or
degree or extent denotes a material matter of clear ‘‘fraudulent’’ refer to conduct that is characterized as such
and weighty importance. under the substantive or procedural law of the applicable juris-
(n) ‘‘Tribunal’’ denotes a court, an arbitrator in diction and has a purpose to deceive. This does not include
a binding arbitration proceeding or a legislative merely negligent misrepresentation or negligent failure to

5
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.0 RULES OF PROFESSIONAL CONDUCT

apprise another of relevant information. For purposes of these lawyer to avoid any communication with other firm personnel
Rules, it is not necessary that anyone has suffered damages and any contact with any firm files or other information, includ-
or relied on the misrepresentation or failure to inform. ing information in electronic form, relating to the matter, written
Informed Consent. Many of the Rules of Professional Con- notice and instructions to all other firm personnel forbidding
duct require the lawyer to obtain the informed consent of a any communication with the screened lawyer relating to the
client or other person (e.g., a former client or, under certain matter, denial of access by the screened lawyer to firm files
circumstances, a prospective client) before accepting or con- or other information, including information in electronic form,
tinuing representation or pursuing a course of conduct. See, relating to the matter and periodic reminders of the screen to
e.g., Rules 1.2 (c), 1.6 (a) and 1.7 (b). The communication the screened lawyer and all other firm personnel.
necessary to obtain such consent will vary according to the In order to be effective, screening measures must be imple-
Rule involved and the circumstances giving rise to the need mented as soon as practical after a lawyer or law firm knows
to obtain informed consent. The lawyer must make reasonable or reasonably should know that there is a need for screening.
efforts to ensure that the client or other person possesses
information reasonably adequate to make an informed deci- CLIENT-LAWYER RELATIONSHIPS
sion. Ordinarily, this will require communication that includes
a disclosure of the facts and circumstances giving rise to the Rule 1.1. Competence
situation, any explanation reasonably necessary to inform the A lawyer shall provide competent representa-
client or other person of the material advantages and disadvan- tion to a client. Competent representation requires
tages of the proposed course of conduct and a discussion of
the client’s or other person’s options and alternatives. In some the legal knowledge, skill, thoroughness and prep-
circumstances it may be appropriate for a lawyer to advise a aration reasonably necessary for the represen-
client or other person to seek the advice of other counsel. A tation.
lawyer need not inform a client or other person of facts or (P.B. 1978-1997, Rule 1.1.)
implications already known to the client or other person; never- COMMENTARY: Legal Knowledge and Skill. In determin-
theless, a lawyer who does not personally inform the client or ing whether a lawyer employs the requisite knowledge and
other person assumes the risk that the client or other person skill in a particular matter, relevant factors include the relative
is inadequately informed and the consent is invalid. In complexity and specialized nature of the matter, the lawyer’s
determining whether the information and explanation provided general experience, the lawyer’s training and experience in
are reasonably adequate, relevant factors include whether the the field in question, the preparation and study the lawyer is
client or other person is experienced in legal matters generally able to give the matter and whether it is feasible to refer the
and in making decisions of the type involved, and whether the matter to, or associate or consult with, a lawyer of established
client or other person is independently represented by other competence in the field in question. In many instances, the
counsel in giving the consent. Normally, such persons need required proficiency is that of a general practitioner. Expertise
less information and explanation than others, and generally in a particular field of law may be required in some circum-
a client or other person who is independently represented by stances.
other counsel in giving the consent should be assumed to A lawyer need not necessarily have special training or prior
have given informed consent. experience to handle legal problems of a type with which
Obtaining informed consent will usually require an affirma- the lawyer is unfamiliar. A newly admitted lawyer can be as
tive response by the client or other person. In general, a lawyer competent as a practitioner with long experience. Some
may not assume consent from a client’s or other person’s important legal skills, such as the analysis of precedent, the
silence. Consent may be inferred, however, from the conduct evaluation of evidence and legal drafting, are required in all
of a client or other person who has reasonably adequate infor- legal problems. Perhaps the most fundamental legal skill con-
mation about the matter. A number of Rules require that a sists of determining what kind of legal problems a situation
person’s consent be confirmed in writing. See Rules 1.7 (b) may involve, a skill that necessarily transcends any particular
and 1.9 (a). For a definition of ‘‘writing’’ and ‘‘confirmed in specialized knowledge. A lawyer can provide adequate repre-
writing,’’ see subsections (o) and (c). Other Rules require that sentation in a wholly novel field through necessary study.
a client’s consent be obtained in a writing signed by the client. Competent representation can also be provided through the
See, e.g., Rules 1.8 (a) and (g). For a definition of ‘‘signed,’’ association of a lawyer of established competence in the field
see subsection (o). in question.
Screened. The definition of "screened" applies to situations In an emergency, a lawyer may give advice or assistance
where screening of a personally disqualified lawyer is permit- in a matter in which the lawyer does not have the skill ordinarily
ted to remove imputation of a conflict of interest under Rules required where referral to or consultation or association with
1.10, 1.11, 1.12 or 1.18. another lawyer would be impractical. Even in an emergency,
The purpose of screening is to assure the affected parties however, assistance should be limited to that reasonably nec-
that confidential information known by the personally disquali- essary in the circumstances, for ill-considered action under
fied lawyer remains protected. The personally disqualified law- emergency conditions can jeopardize the client’s interest. A
yer shall acknowledge in writing to the client the obligation lawyer may accept representation where the requisite level of
not to communicate with any of the other lawyers in the firm competence can be achieved by reasonable preparation. This
with respect to the matter. Similarly, other lawyers in the firm applies as well to a lawyer who is appointed as counsel for
who are working on the matter should be informed that the an unrepresented person. See also Rule 6.2.
screening is in place and that they may not communicate with Thoroughness and Preparation. Competent handling of
the personally disqualified lawyer with respect to the matter. a particular matter includes inquiry into and analysis of the
Additional screening measures that are appropriate for the factual and legal elements of the problem, and use of methods
particular matter will depend on the circumstances. To imple- and procedures meeting the standards of competent prac-
ment, reinforce and remind all affected lawyers of the presence titioners. It also includes adequate preparation. The required
of the screening, it may be appropriate for the firm to undertake attention and preparation are determined in part by what is
such procedures as a written undertaking by the screened at stake; major litigation and complex transactions ordinarily

6
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.2

require more extensive treatment than matters of lesser com- to provide the client with a defense and indemnity
plexity and consequence. An agreement between the lawyer for the loss, and the third party elects to settle a
and the client regarding the scope of the representation may
limit the matters for which the lawyer is responsible. See Rule
matter without contribution by the client.
1.2 (c). (b) A lawyer’s representation of a client, includ-
Retaining or Contracting with Other Lawyers. Before ing representation by appointment, does not con-
a lawyer retains or contracts with other lawyers outside the stitute an endorsement of the client’s political,
lawyer’s own firm to provide or assist in the provision of legal economic, social or moral views or activities.
services to a client, the lawyer should ordinarily obtain (c) A lawyer may limit the scope of the represen-
informed consent from the client and must reasonably believe
that the other lawyers’ services will contribute to the competent
tation if the limitation is reasonable under the cir-
and ethical representation of the client. See also Rules 1.2 cumstances and the client gives informed
(allocation of authority), 1.4 (communication with client), 1.5 consent. Such informed consent shall not be
(b) (scope of representation, basis or rate of fee and required when a client cannot be located despite
expenses), 1.5 (e) (fee sharing), 1.6 (confidentiality), and 5.5 reasonable efforts where the lawyer is retained
(a) (unauthorized practice of law). Client consent may not be to represent a client by a third party that is obli-
necessary when a nonfirm lawyer is hired to perform a discrete
and limited task and the task does not require the disclosure
gated by contract to provide the client with a
of information protected by Rule 1.6. The reasonableness of defense.
the decision to retain or contract with other lawyers outside (d) A lawyer shall not counsel a client to engage,
the lawyer’s own firm will depend upon the circumstances, or assist a client, in conduct that the lawyer knows
including the education, experience and reputation of the non- is criminal or fraudulent, but a lawyer may (1)
firm lawyers; the nature of the services assigned to the nonfirm discuss the legal consequences of any proposed
lawyers; and the legal protections, professional conduct rules,
and ethical environments of the jurisdictions in which the ser-
course of conduct with a client; (2) counsel or
vices will be performed, particularly relating to confidential assist a client to make a good faith effort to deter-
information. mine the validity, scope, meaning or application of
When lawyers from more than one law firm are providing the law; or (3) counsel or assist a client regarding
legal services to the client on a particular matter, the lawyers conduct expressly permitted by Connecticut law,
should consult with each other and the client about the scope provided that the lawyer counsels the client about
of their respective representations and the allocation of the legal consequences, under other applicable
responsibility among them. See Rule 1.2. When making alloca-
tions of responsibility in a matter pending before a tribunal,
law, of the client’s proposed course of conduct.
lawyers and parties may have additional obligations that are (P.B. 1978-1997, Rule 1.2.) (Amended June 26, 2006, to
take effect Jan. 1, 2007; amended June 29, 2007, to take
a matter of law beyond the scope of these Rules.
effect Jan. 1, 2008; amended June 13, 2014, to take effect
Maintaining Competence. To maintain the requisite
Jan. 1, 2015.)
knowledge and skill, a lawyer should keep abreast of changes
COMMENTARY: Allocation of Authority between Client
in the law and its practice, including the benefits and risks
and Lawyer. Subsection (a) confers upon the client the ulti-
associated with relevant technology, engage in continuing
mate authority to determine the purposes to be served by
study and education and comply with all continuing legal edu-
legal representation, within the limits imposed by law and the
cation requirements to which the lawyer is subject.
lawyer’s professional obligations. The decisions specified in
subsection (a), such as whether to settle a civil matter, must
Rule 1.2. Scope of Representation and Allo- also be made by the client. See Rule 1.4 (a) (1) for the lawyer’s
cation of Authority between Client and duty to communicate with the client about such decisions. With
Lawyer respect to the means by which the client’s objectives are to
(Amended June 26, 2006, to take effect Jan. 1, 2007.) be pursued, the lawyer shall consult with the client as required
(a) Subject to subsections (c) and (d), a lawyer by Rule 1.4 (a) (2) and may take such action as is impliedly
authorized to carry out the representation.
shall abide by a client’s decisions concerning the On occasion, however, a lawyer and a client may disagree
objectives of representation and, as required by about the means to be used to accomplish the client’s objec-
Rule 1.4, shall consult with the client as to the tives. Clients normally defer to the special knowledge and
means by which they are to be pursued. A lawyer skill of their lawyer with respect to the means to be used to
may take such action on behalf of the client as is accomplish their objectives, particularly with respect to techni-
impliedly authorized to carry out the representa- cal, legal and tactical matters. Conversely, lawyers usually
defer to the client regarding such questions as the expense
tion. A lawyer shall abide by a client’s decision to be incurred and concern for third persons who might be
whether to settle a matter. In a criminal case, the adversely affected. Because of the varied nature of the matters
lawyer shall abide by the client’s decision, after about which a lawyer and client might disagree and because
consultation with the lawyer, as to a plea to be the actions in question may implicate the interests of a tribunal
entered, whether to waive jury trial and whether or other persons, this Rule does not prescribe how such dis-
the client will testify. Subject to revocation by the agreements are to be resolved. Other law, however, may be
applicable and should be consulted by the lawyer. The lawyer
client and to the terms of the contract, a client’s should also consult with the client and seek a mutually accept-
decision to settle a matter shall be implied where able resolution of the disagreement. If such efforts are unavail-
the lawyer is retained to represent the client by a ing and the lawyer has a fundamental disagreement with the
third party obligated under the terms of a contract client, the lawyer may withdraw from the representation. See

7
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.2 RULES OF PROFESSIONAL CONDUCT

Rule 1.16 (b) (4). Conversely, the client may resolve the dis- concealed. A lawyer may not continue assisting a client in
agreement by discharging the lawyer. See Rule 1.16 (a) (3). conduct that the lawyer originally believed legally proper but
At the outset of a representation, the client may authorize then discovers is criminal or fraudulent. The lawyer must,
the lawyer to take specific action on the client’s behalf without therefore, withdraw from the representation of the client in the
further consultation. Absent a material change in circum- matter. See Rule 1.16 (a). In some cases, withdrawal alone
stances and subject to Rule 1.4, a lawyer may rely on such might be insufficient. It may be necessary for the lawyer to give
an advance authorization. The client may, however, revoke notice of the fact of withdrawal and to disaffirm any opinion,
such authority at any time. document, affirmation or the like. See Rule 4.1.
In a case in which the client appears to be suffering dimin- Where the client is a fiduciary, the lawyer may be charged
ished capacity, the lawyer’s duty to abide by the client’s deci- with special obligations in dealings with a beneficiary.
sions is to be guided by reference to Rule 1.14. Subsection (d) applies whether or not the defrauded party
Independence from Client’s Views or Activities. Legal is a party to the transaction. Hence, a lawyer must not partici-
representation should not be denied to people who are unable pate in a transaction to effectuate criminal or fraudulent avoid-
to afford legal services or whose cause is controversial or the ance of tax liability. Subsection (d) does not preclude
subject of popular disapproval. By the same token, represent- undertaking a criminal defense incident to a general retainer
ing a client does not constitute approval of the client’s views for legal services to a lawful enterprise. Subsection (d) (2)
or activities. recognizes that determining the validity or interpretation of a
Agreements Limiting Scope of Representation. The statute or regulation may require a course of action involving
scope of services to be provided by a lawyer may be limited disobedience of the statute or regulation or of the interpretation
by agreement with the client or by the terms under which the placed upon it by governmental authorities. Subsection (d) (3)
lawyer’s services are made available to the client. For exam- is intended to permit counsel to provide legal services to clients
ple, when a lawyer has been retained by an insurer to represent without being subject to discipline under these Rules notwith-
an insured, the representation may be limited to matters standing that the services concern conduct prohibited under
related to the insurance coverage. A limited representation federal or other law but expressly permitted under Connecticut
may be appropriate because the client has limited objectives law, e.g., conduct under An Act Concerning the Palliative Use
for the representation. In addition, the terms upon which repre- of Marijuana, Public Act 12-55, effective Oct. 1, 2012. Subsec-
sentation is undertaken may exclude specific means that might tion (d) (3) shall not provide a defense to a presentment filed
otherwise be used to accomplish the client’s objectives. Such pursuant to Practice Book Section 2-41 against an attorney
limitations may exclude actions that the client thinks are too found guilty of a serious crime in another jurisdiction.
costly or that the lawyer regards as repugnant or imprudent. If a lawyer comes to know or reasonably should know that
Nothing in Rule 1.2 shall be construed to authorize limited a client expects assistance not permitted by the Rules of Pro-
appearances before any tribunal unless otherwise authorized fessional Conduct or other law or if the lawyer intends to act
by law or rule. contrary to the client’s instructions, the lawyer must consult
Although this Rule affords the lawyer and client substantial with the client regarding the limitations on the lawyer’s conduct.
latitude to limit the scope of representation, the limitation must See Rule 1.4 (a) (5).
be reasonable under the circumstances. If, for example, a
client’s objective is limited to securing general information Rule 1.3. Diligence
about the law the client needs in order to handle a common
and typically uncomplicated legal problem, the lawyer and
A lawyer shall act with reasonable diligence and
client may agree that the lawyer’s services will be limited to promptness in representing a client.
a brief telephone consultation. Such a limitation, however, (P.B. 1978-1997, Rule 1.3.)
would not be reasonable if the time allotted was not sufficient COMMENTARY: A lawyer must pursue a matter on behalf
to yield advice upon which the client could rely. Although an of a client despite opposition, obstruction or personal inconve-
agreement for a limited representation does not exempt a nience to the lawyer, and take whatever lawful and ethical
lawyer from the duty to provide competent representation, the measures are required to vindicate a client’s cause or
limitation is a factor to be considered when determining the endeavor. A lawyer must also act with commitment and dedica-
legal knowledge, skill, thoroughness and preparation reason- tion to the interests of the client and with zeal in advocacy
ably necessary for the representation. See Rule 1.1. upon the client’s behalf. A lawyer is not bound, however, to
All agreements concerning a lawyer’s representation of a press for every advantage that might be realized for a client.
client must accord with the Rules of Professional Conduct and For example, a lawyer may have authority to exercise profes-
other law. See, e.g., Rules 1.1, 1.8 and 5.6. sional discretion in determining the means by which a matter
Criminal, Fraudulent and Prohibited Transactions. Sub- should be pursued. See Rule 1.2. The lawyer’s duty to act
section (d) prohibits a lawyer from knowingly counseling or with reasonable diligence does not require the use of offensive
assisting a client to commit a crime or fraud. This prohibition, tactics or preclude the treating of all persons involved in the
however, does not preclude the lawyer from giving an honest legal process with courtesy and respect.
opinion about the actual consequences that appear likely to A lawyer’s work load must be controlled so that each matter
result from a client’s conduct. Nor does the fact that a client can be handled competently.
uses advice in a course of action that is criminal or fraudulent Perhaps no professional shortcoming is more widely
of itself make a lawyer a party to the course of action. There resented than procrastination. A client’s interests often can
is a critical distinction between presenting an analysis of legal be adversely affected by the passage of time or the change of
aspects of questionable conduct and recommending the conditions; in extreme instances, as when a lawyer overlooks a
means by which a crime or fraud might be committed. statute of limitations, the client’s legal position may be
When the client’s course of action has already begun and destroyed. Even when the client’s interests are not affected
is continuing, the lawyer’s responsibility is especially delicate. in substance, however, unreasonable delay can cause a client
The lawyer is required to avoid assisting the client, for example, needless anxiety and undermine confidence in the lawyer’s
by drafting or delivering documents that the lawyer knows are trustworthiness. A lawyer’s duty to act with reasonable prompt-
fraudulent or by suggesting how the wrongdoing might be ness, however, does not preclude the lawyer from agreeing

8
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.4

to a reasonable request for a postponement that will not preju- Communicating with Client. If these Rules or other law
dice the lawyer’s client. require that a particular decision about the representation be
Unless the relationship is terminated as provided in Rule made by the client, subsection (a) (1) requires that the lawyer
1.16, a lawyer should carry through to conclusion all matters promptly consult with and secure the client’s consent prior to
undertaken for a client. If a lawyer’s employment is limited to taking action. See Rule 1.2 (a).
a specific matter, the relationship terminates when the matter Subsection (a) (2) requires the lawyer to reasonably consult
has been resolved. If a lawyer has served a client over a with the client about the means to be used to accomplish the
substantial period in a variety of matters, the client sometimes client’s objectives. In some situations—depending on both the
may assume that the lawyer will continue to serve on a continu- importance of the action under consideration and the feasibility
ing basis unless the lawyer gives notice of withdrawal. Doubt of consulting with the client—this duty will require consultation
about whether a client-lawyer relationship still exists should prior to taking action. In other circumstances, such as during
be clarified by the lawyer, preferably in writing, so that the a trial when an immediate decision must be made, the exigency
client will not mistakenly suppose the lawyer is looking after of the situation may require the lawyer to act without prior
the client’s affairs when the lawyer has ceased to do so. For consultation. In such cases the lawyer must nonetheless act
example, if a lawyer has handled a judicial or administrative reasonably to inform the client of actions the lawyer has taken
proceeding that produced a result adverse to the client and on the client’s behalf. Additionally, subsection (a) (3) requires
the lawyer and the client have not agreed that the lawyer will that the lawyer keep the client reasonably informed about the
handle the matter on appeal, the lawyer must consult with status of the matter, such as significant developments affecting
the client about the possibility of appeal before relinquishing the timing or the substance of the representation.
responsibility for the matter. See Rule 1.4 (a) (2). Whether A lawyer’s regular communication with clients will minimize
the lawyer is obligated to prosecute the appeal for the client the occasions on which a client will need to request information
depends on the scope of the representation the lawyer has concerning the representation. When a client makes a reason-
agreed to provide to the client. See Rule 1.2. able request for information, however, subsection (a) (4)
To prevent neglect of client matters in the event of a sole requires prompt compliance with the request, or if a prompt
practitioner’s death or disability, the duty of diligence may response is not feasible, that the lawyer, or a member of the
require that each sole practitioner prepare a plan, in conformity lawyer’s staff, acknowledge receipt of the request and advise
with applicable rules, that designates another competent law- the client when a response may be expected. A lawyer should
yer to review client files, notify each client of the lawyer’s promptly respond to or acknowledge client communications.
death or disability, and determine whether there is a need for Explaining Matters. The client should have sufficient infor-
immediate protective action. Cf. Rule 28 of the American Bar mation to participate intelligently in decisions concerning the
objectives of the representation and the means by which they
Association Model Rules for Lawyer Disciplinary Enforcement
are to be pursued, to the extent the client is willing and able
(providing for court appointment of a lawyer to inventory files
to do so. Adequacy of communication depends in part on the
and take other protective action in absence of a plan providing
kind of advice or assistance that is involved. For example,
for another lawyer to protect the interests of the clients of a
when there is time to explain a proposal made in a negotiation,
deceased or disabled lawyer).
the lawyer should review all important provisions with the client
before proceeding to an agreement. In litigation, a lawyer
Rule 1.4. Communication should explain the general strategy and prospects of success
(a) A lawyer shall: and ordinarily should consult the client on tactics that are likely
(1) promptly inform the client of any decision or to result in significant expense or to injure or coerce others.
circumstance with respect to which the client’s On the other hand, a lawyer ordinarily will not be expected to
describe trial or negotiation strategy in detail. The guiding
informed consent, as defined in Rule 1.0 (f), is principle is that the lawyer should fulfill reasonable client
required by these Rules; expectations for information consistent with the duty to act in
(2) reasonably consult with the client about the the client’s best interests, and the client’s overall requirements
means by which the client’s objectives are to be as to the character of representation. In certain circumstances,
accomplished; such as when a lawyer asks a client to consent to a representa-
tion affected by a conflict of interest, the client must give
(3) keep the client reasonably informed about informed consent, as defined in Rule 1.0 (f).
the status of the matter; Ordinarily, the information to be provided is that appropriate
(4) promptly comply with reasonable requests for a client who is a comprehending and responsible adult.
for information; and However, fully informing the client according to this standard
(5) consult with the client about any relevant may be impracticable, for example, when the client is a child
or suffers from diminished capacity. See Rule 1.14. When the
limitation on the lawyer’s conduct when the lawyer client is an organization or group, it is often impossible or
knows that the client expects assistance not per- inappropriate to inform every one of its members about its
mitted by the Rules of Professional Conduct or legal affairs; ordinarily, the lawyer should address communica-
other law. tions to the appropriate officials of the organization. See Rule
(b) A lawyer shall explain a matter to the extent 1.13. Where many routine matters are involved, a system of
limited or occasional reporting may be arranged with the client.
reasonably necessary to permit the client to make Withholding Information. In some circumstances, a law-
informed decisions regarding the representation. yer may be justified in delaying transmission of information
(P.B. 1978-1997, Rule 1.4.) (Amended June 26, 2006, to when the client would be likely to react imprudently to an
take effect Jan. 1, 2007.) immediate communication. Thus, a lawyer might withhold a
COMMENTARY: Reasonable communication between the psychiatric diagnosis of a client when the examining psychia-
lawyer and the client is necessary for the client effectively to trist indicates that disclosure would harm the client. A lawyer
participate in the representation. may not withhold information to serve the lawyer’s own interest

9
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.4 RULES OF PROFESSIONAL CONDUCT

or convenience or the interests or convenience of another in the scope of representation. This subsection
person. Rules or court orders governing litigation may provide shall not apply to public defenders or in situations
that information supplied to a lawyer may not be disclosed to
the client. Rule 3.4 (3) directs compliance with such rules
where the lawyer will be paid by the court or a
or orders. state agency.
(c) A fee may be contingent on the outcome of
Rule 1.5. Fees the matter for which the service is rendered,
(a) A lawyer shall not make an agreement for, except in a matter in which a contingent fee is
charge, or collect an unreasonable fee or an prohibited by subsection (d) or other law. A contin-
unreasonable amount for expenses. The factors gent fee agreement shall be in a writing signed
to be considered in determining the reasonable- by the client and shall state the method by which
ness of a fee include the following: the fee is to be determined, including the percent-
(1) The time and labor required, the novelty and age or percentages of the recovery that shall
difficulty of the questions involved, and the skill accrue to the lawyer as a fee in the event of settle-
requisite to perform the legal service properly; ment, trial or appeal, whether and to what extent
(2) The likelihood, if made known to the client, the client will be responsible for any court costs
that the acceptance of the particular employment and expenses of litigation, and whether such
will preclude other employment by the lawyer; expenses are to be deducted before or after the
(3) The fee customarily charged in the locality contingent fee is calculated. The agreement must
for similar legal services; clearly notify the client of any expenses for which
(4) The amount involved and the results ob- the client will be liable whether or not the client
tained; is the prevailing party. Upon conclusion of a con-
(5) The time limitations imposed by the client tingent fee matter, the lawyer shall provide the
or by the circumstances; client with a written statement stating the outcome
(6) The nature and length of the professional of the matter and, if there is a recovery, showing
relationship with the client; the remittance to the client and the method of
(7) The experience, reputation, and ability of its determination.
the lawyer or lawyers performing the services; and (d) A lawyer shall not enter into an arrangement
(8) Whether the fee is fixed or contingent. for, charge, or collect:
(b) The scope of the representation, the basis (1) Any fee in a domestic relations matter, the
or rate of the fee and expenses for which the client payment or amount of which is contingent upon
will be responsible, shall be communicated to the the securing of a dissolution of marriage or civil
client, in writing, before or within a reasonable union or upon the amount of alimony or support,
time after commencing the representation, except or property settlement in lieu thereof; or
when the lawyer will charge a regularly repre- (2) A contingent fee for representing a defend-
sented client on the same basis or rate. Any ant in a criminal case.
changes in the basis or rate of the fee or expenses (e) A division of fee between lawyers who are
shall also be communicated to the client in writing not in the same firm may be made only if:
before the fees or expenses to be billed at higher (1) The client is advised in writing of the com-
rates are actually incurred. In any representation pensation sharing agreement and of the participa-
in which the lawyer and the client agree that the tion of all the lawyers involved, and does not
lawyer will file a limited appearance, the limited object; and
appearance engagement agreement shall also (2) The total fee is reasonable.
(P.B. 1978-1997. Rule 1.5.) (Amended June 26, 2006, to
include the following: identification of the proceed- take effect Jan. 1, 2007; amended June 14, 2013, to take
ing in which the lawyer will file the limited appear- effect Oct. 1, 2013.)
ance; identification of the court events for which COMMENTARY: Basis or Rate of Fee. Subsection (a)
the lawyer will appear on behalf of the client; and requires that lawyers charge fees that are reasonable under
notification to the client that after the limited the circumstances. The factors specified in (1) through (8) are
not exclusive. Nor will each factor be relevant in each instance.
appearance services have been completed, the Subsection (a) also requires that expenses for which the client
lawyer will file a certificate of completion of limited will be charged must be reasonable. A lawyer may seek reim-
appearance with the court, which will serve to bursement for the cost of services performed in-house, such
terminate the lawyer’s obligation to the client in as copying, or for other expenses incurred in-house, such as
the matter, and as to which the client will have no telephone charges, either by charging a reasonable amount
right to object. Any change in the scope of the to which the client has agreed in advance or by charging an
amount that reasonably reflects the cost incurred by the
representation requires the client’s informed con- lawyer.
sent, shall be confirmed to the client in writing, When the lawyer has regularly represented a client, the
and shall require the lawyer to file a new limited lawyer and the client ordinarily will have evolved an under-
appearance with the court reflecting the change(s) standing concerning the basis or rate of the fee and the

10
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.6

expenses for which the client will be responsible. In a new a trial specialist. Contingent fee agreements must be in writing
client-lawyer relationship, however, an understanding as to signed by the client and must otherwise comply with subsec-
fees and expenses must be promptly established. Generally, tion (c) of this Rule. A lawyer should only refer a matter to
it is desirable to furnish the client with at least a simple memo- a lawyer whom the referring lawyer reasonably believes is
randum or copy of the lawyer’s customary fee arrangements competent to handle the matter. See Rule 1.1.
that states the general nature of the legal services to be pro- Subsection (e) does not prohibit or regulate divisions of
vided, the basis, rate or total amount of the fee and whether fees to be received in the future for work done when lawyers
and to what extent the client will be responsible for any costs, were previously associated in a law firm.
expenses or disbursements in the course of the representa- Disputes over Fees. If an arbitration or mediation proce-
tion. A written statement concerning the terms of the engage- dure such as that in Practice Book Section 2-32 (a) (3) has
ment reduces the possibility of misunderstanding. Absent been established for resolution of fee disputes, the lawyer
extraordinary circumstances, the lawyer should send the writ- must comply with the procedure when it is mandatory, and,
ten fee statement to the client before any substantial services even when it is voluntary, the lawyer should conscientiously
are rendered, but in any event, not later than ten days after consider submitting to it. Law may prescribe a procedure for
commencing the representation. determining a lawyer’s fee, for example, in representation of
Contingent fees, like any other fees, are subject to the an executor or administrator, a class or a person entitled to
reasonableness standard of subsection (a) of this Rule. In a reasonable fee as part of the measure of damages. The
determining whether a particular contingent fee is reasonable, lawyer entitled to such a fee and a lawyer representing another
or whether it is reasonable to charge any form of contingent party concerned with the fee should comply with the pre-
fee, a lawyer must consider the factors that are relevant under scribed procedure.
the circumstances. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage allowable, Rule 1.6. Confidentiality of Information
or may require a lawyer to offer clients an alternative basis
for the fee. Applicable law also may apply to situations other (a) A lawyer shall not reveal information relating
than a contingent fee, for example, government regulations to representation of a client unless the client gives
regarding fees in certain tax matters. In matters where a contin- informed consent, the disclosure is impliedly
gent fee agreement has been signed by the client and is authorized in order to carry out the representation,
in accordance with General Statutes § 52-251c, the fee is
presumed to be reasonable.
or the disclosure is permitted by subsection (b),
Terms of Payment. A lawyer may require advance pay- (c), or (d).
ment of a fee, but is obliged to return any unearned portion. (b) A lawyer shall reveal such information to the
See Rule 1.16 (d). A lawyer may accept property in payment extent the lawyer reasonably believes necessary
for services, such as an ownership interest in an enterprise, to prevent the client from committing a criminal
providing this does not involve acquisition of a proprietary
interest in the cause of action or subject matter of the litigation
or fraudulent act that the lawyer believes is likely
contrary to Rule 1.8 (i). However, a fee paid in property instead to result in death or substantial bodily harm.
of money may be subject to the requirements of Rule 1.8 (a) (c) A lawyer may reveal such information to the
because such fees often have the essential qualities of a extent the lawyer reasonably believes neces-
business transaction with the client. sary to:
An agreement may not be made whose terms might induce
the lawyer improperly to curtail services for the client or perform (1) Prevent the client from committing a criminal
them in a way contrary to the client’s interest. For example, or fraudulent act that the lawyer believes is likely
a lawyer should not enter into an agreement whereby services to result in substantial injury to the financial inter-
are to be provided only up to a stated amount when it is est or property of another;
foreseeable that more extensive services probably will be (2) Prevent, mitigate or rectify the consequence
required, unless the situation is adequately explained to the
client. Otherwise, the client might have to bargain for further of a client’s criminal or fraudulent act in the com-
assistance in the midst of a proceeding or transaction. How- mission of which the lawyer’s services had
ever, it is proper to define the extent of services in light of been used;
the client’s ability to pay. A lawyer should not exploit a fee (3) Secure legal advice about the lawyer’s com-
arrangement based primarily on hourly charges by using pliance with these Rules;
wasteful procedures.
Prohibited Contingent Fees. Subsection (d) prohibits a (4) Comply with other law or a court order.
lawyer from charging a contingent fee in a domestic relations (5) Detect and resolve conflicts of interest aris-
matter when payment is contingent upon the securing of a ing from the lawyer’s change of employment or
divorce or upon the amount of alimony or support or property from changes in the composition or ownership of
settlement to be obtained. This provision does not preclude a firm, but only if the revealed information would
a contract for a contingent fee for legal representation in con-
nection with the recovery of postjudgment balances due under not compromise the attorney-client privilege or
support, alimony or other financial orders because such con- otherwise prejudice the client.
tracts do not implicate the same policy concerns. (d) A lawyer may reveal such information to
Division of Fee. A division of fee is a single billing to a establish a claim or defense on behalf of the law-
client covering the fee of two or more lawyers who are not in yer in a controversy between the lawyer and the
the same firm. A division of fee facilitates association of more
than one lawyer in a matter in which neither alone could serve client, to establish a defense to a criminal charge
the client as well and most often is used when the fee is or civil claim against the lawyer based upon con-
contingent and the division is between a referring lawyer and duct in which the client was involved, or to respond
11
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.6 RULES OF PROFESSIONAL CONDUCT

to allegations in any proceeding concerning the of the firm, unless the client has instructed that particular
lawyer’s representation of the client. information be confined to specific lawyers.
Disclosure Adverse to Client. Although the public interest
(e) A lawyer shall make reasonable efforts to is usually best served by a strict rule requiring lawyers to
prevent the inadvertent or unauthorized disclo- preserve the confidentiality of information relating to the repre-
sure of, or unauthorized access to, information sentation of their clients, the confidentiality Rule is subject to
relating to the representation of a client. limited exceptions. Subsection (b) recognizes the overriding
(P.B. 1978-1997, Rule 1.6.) (Amended June 26, 2006, to value of life and physical integrity and requires disclosure in
take effect Jan. 1, 2007; amended June 14, 2013, to take certain circumstances.
effect Jan. 1, 2014.) Subsection (c) (1) is a limited exception to the Rule of
COMMENTARY: This Rule governs the disclosure by a confidentiality that permits the lawyer to reveal information to
lawyer of information relating to the representation of a client the extent necessary to enable affected persons or appropriate
during the lawyer’s representation of the client. See Rule 1.18 authorities to prevent the client from committing a crime or
for the lawyer’s duties with respect to information provided to fraud, as defined in Rule 1.0 (e), that is likely to result in
the lawyer by a prospective client, Rule 1.9 (c) (2) for the substantial injury to the financial or property interests of
lawyer’s duty not to reveal information relating to the lawyer’s another. Such a serious abuse of the client-lawyer relationship
prior representation of a former client and Rules 1.8 (b) and by the client forfeits the protection of this Rule. The client
1.9 (c) (1) for the lawyer’s duties with respect to the use of such can, of course, prevent such disclosure by refraining from the
information to the disadvantage of clients and former clients. wrongful conduct. Although subsection (c) (1) does not require
A fundamental principle in the client-lawyer relationship is the lawyer to reveal the client’s misconduct, the lawyer may
that, in the absence of the client’s informed consent, the lawyer not counsel or assist the client in conduct the lawyer knows
must not reveal information relating to the representation. See is criminal or fraudulent. See Rule 1.2 (d). See also Rule 1.16
Rule 1.0 (f) for the definition of informed consent. This contri- with respect to the lawyer’s obligation or right to withdraw from
butes to the trust that is the hallmark of the client-lawyer rela- the representation of the client in such circumstances, and
tionship. The client is thereby encouraged to seek legal Rule 1.13 (c), which permits the lawyer, where the client is
assistance and to communicate fully and frankly with the law- an organization, to reveal information relating to the represen-
yer even as to embarrassing or legally damaging subject mat- tation in limited circumstances.
ter. The lawyer needs this information to represent the client Subsection (c) (2) addresses the situation in which the
effectively and, if necessary, to advise the client to refrain from lawyer does not learn of the client’s crime or fraud until after
wrongful conduct. Almost without exception, clients come to it has been consummated. Although the client no longer has
lawyers in order to determine their rights and what is, in the the option of preventing disclosure by refraining from the
complex of laws and regulations, deemed to be legal and wrongful conduct, there will be situations in which the loss
correct. Based upon experience, lawyers know that almost all suffered by the affected person can be prevented, rectified or
clients follow the advice given, and the law is upheld. mitigated. In such situations, the lawyer may disclose informa-
The principle of client-lawyer confidentiality is given effect tion relating to the representation to the extent necessary to
by related bodies of law, the attorney-client privilege, the work enable the affected persons to prevent or mitigate reasonably
product doctrine and the Rule of confidentiality established certain losses or to attempt to recoup their losses. Subsection
in professional ethics. The attorney-client privilege and work (c) (2) does not apply when a person who has committed a
product doctrine apply in judicial and other proceedings in crime or fraud thereafter employs a lawyer for representation
which a lawyer may be called as a witness or otherwise concerning that offense.
required to produce evidence concerning a client. The Rule A lawyer’s confidentiality obligations do not preclude a law-
of client-lawyer confidentiality applies in situations other than yer from securing confidential legal advice about the lawyer’s
those where evidence is sought from the lawyer through com- personal responsibility to comply with these Rules. In most
pulsion of law. The confidentiality Rule, for example, applies situations, disclosing information to secure such advice will
not only to matters communicated in confidence by the client be impliedly authorized for the lawyer to carry out the represen-
but also to all information relating to the representation, what- tation. Even when the disclosure is not impliedly authorized,
ever its source. A lawyer may not disclose such information subsection (c) (3) permits such disclosure because of the
except as authorized or required by the Rules of Professional importance of a lawyer’s compliance with the Rules of Profes-
Conduct or other law. See also Scope. sional Conduct. The lawyer’s right to disclose such information
Subsection (a) prohibits a lawyer from revealing information to a second lawyer pursuant to subsection (c) (3) does not
relating to the representation of a client. This prohibition also give the second lawyer the duty or right to disclose such
applies to disclosures by a lawyer that do not in themselves information under subsections (b), (c) and (d). The first law-
reveal protected information but could reasonably lead to the yer’s client does not become the client of the second lawyer
discovery of such information by a third person. A lawyer’s just because the first lawyer seeks the second lawyer’s advice
use of a hypothetical to discuss issues relating to the represen- under (c) (3).
tation is permissible so long as there is no reasonable likeli- Subsection (c) (5) recognizes that lawyers in different firms
hood that the listener will be able to ascertain the identity of may need to disclose limited information to each other to detect
the client or the situation involved. and resolve conflicts of interest, such as when a lawyer is
Authorized Disclosure. Except to the extent that the cli- considering an association with another firm, two or more
ent’s instructions or special circumstances limit that authority, firms are considering a merger, or a lawyer is considering the
a lawyer is impliedly authorized to make disclosures about a purchase of a law practice. See Rule 1.17, commentary. Under
client when appropriate in carrying out the representation. these circumstances, lawyers and law firms are permitted to
In some situations, for example, a lawyer may be impliedly disclose limited information, but only once substantive discus-
authorized to admit a fact that cannot properly be disputed to sions regarding the new relationship have occurred. Any such
make a disclosure that facilitates a satisfactory conclusion to disclosure should ordinarily include no more than the identity
a matter. Lawyers in a firm may, in the course of the firm’s of the persons and entities involved in a matter, a brief sum-
practice, disclose to each other information relating to a client mary of the general issues involved, and information about

12
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.6

whether the matter has terminated. Even this limited informa- disclosure by the attorney-client privilege or other applicable
tion, however, should be disclosed only to the extent reason- law. In the event of an adverse ruling, the lawyer must consult
ably necessary to detect and resolve conflicts of interest that with the client about the possibility of appeal to the extent
might arise from the possible new relationship. Moreover, the required by Rule 1.4. Unless review is sought, however, sub-
disclosure of any information is prohibited if it would compro- section (c) (4) permits the lawyer to comply with the court’s
mise the attorney-client privilege or otherwise prejudice the order.
client (e.g., the fact that a corporate client is seeking advice Subsection (b) requires and subsection (c) permits disclo-
on a corporate takeover that has not been publicly announced, sure only to the extent the lawyer reasonably believes the
that a person consulted a lawyer about the possibility of divorce disclosure is necessary to accomplish one of the purposes
before the person’s intentions are known to the person’s specified. Where practicable, the lawyer should first seek to
spouse, or that a person has consulted a lawyer about a persuade the client to take suitable action to obviate the need
criminal investigation that has not led to a public charge). for disclosure. In any case, a disclosure adverse to the client’s
Under those circumstances, subsection (a) prohibits disclo- interest should be no greater than the lawyer reasonably
sure unless the client or former client gives informed consent. believes necessary to accomplish the purpose. If the disclo-
A lawyer’s fiduciary duty to the lawyer’s firm may also govern sure will be made in connection with a judicial proceeding,
a lawyer’s conduct when exploring an association with another the disclosure should be made in a manner that limits access
firm and is beyond the scope of these Rules. Any information to the information to the tribunal or other persons having a
disclosed pursuant to subsection (c) (5) may be used or further need to know it and appropriate protective orders or other
disclosed only to the extent necessary to detect and resolve arrangements should be sought by the lawyer to the fullest
conflicts of interest. Subsection (c) (5) does not restrict the extent practicable.
use of information acquired by means independent of any Subsection (c) permits but does not require the disclosure
disclosure pursuant to subsection (c) (5). Subsection (c) (5) of information relating to a client’s representation to accom-
also does not affect the disclosure of information within a law plish the purposes specified in subsections (c) (1) through (c)
firm when the disclosure is otherwise authorized, such as when (4). In exercising the discretion conferred by this Rule, the
a lawyer in a firm discloses information to another lawyer in lawyer may consider such factors as the nature of the lawyer’s
the same firm to detect and resolve conflicts of interest that relationship with the client and with those who might be injured
could arise in connection with undertaking a new represen- by the client, the lawyer’s own involvement in the transaction
tation. and factors that may extenuate the conduct in question. A
Where a legal claim or disciplinary charge alleges complicity lawyer’s decision not to disclose as permitted by subsection
of the lawyer in a client’s conduct or other misconduct of the (c) does not violate this Rule. Disclosure may be required,
lawyer involving representation of the client, the lawyer may however, by other Rules. Some Rules require disclosure only
respond to the extent the lawyer reasonably believes neces- if such disclosure would be permitted by subsection (b). See
sary to establish a defense. The same is true with respect to Rules 1.2 (d), 4.1 (b), 8.1 and 8.3. Rule 3.3, on the other
a claim involving the conduct or representation of a former hand, requires disclosure in some circumstances regardless
client. Such a charge can arise in a civil, criminal, disciplinary of whether such disclosure is permitted by this Rule. See Rule
or other proceeding and can be based on a wrong allegedly 3.3 (c).
committed by the lawyer against the client or on a wrong Acting Competently to Preserve Confidentiality. Sub-
alleged by a third person, for example, a person claiming to section (e) requires a lawyer to act competently to safeguard
have been defrauded by the lawyer and client acting together. information relating to the representation of a client against
The lawyer’s right to respond arises when an assertion of such inadvertent or unauthorized disclosure by the lawyer or other
complicity has been made. Subsection (d) does not require persons who are participating in the representation of the client
the lawyer to await the commencement of an action or pro- or who are subject to the lawyer’s supervision. See Rules 1.1,
ceeding that charges such complicity, so that the defense may 5.1 and 5.3. The unauthorized access to, or the inadvertent
be established by responding directly to a third party who has or unauthorized disclosure of, information relating to the repre-
made such an assertion. The right to defend also applies, of sentation of a client does not constitute a violation of subsec-
course, where a proceeding has been commenced. tion (e) if the lawyer has made reasonable efforts to prevent
A lawyer entitled to a fee is permitted by subsection (d) to the access or disclosure. Factors to be considered in determin-
prove the services rendered in an action to collect it. This ing the reasonableness of the lawyer’s efforts include, but are
aspect of the rule expresses the principle that the beneficiary not limited to, the sensitivity of the information, the likelihood
of a fiduciary relationship may not exploit it to the detriment of disclosure if additional safeguards are not employed, the
of the fiduciary. cost of employing additional safeguards, the difficulty of imple-
Other law may require that a lawyer disclose information menting the safeguards, and the extent to which the safe-
about a client. Whether such a law supersedes Rule 1.6 is guards adversely affect the lawyer’s ability to represent clients
a question of law beyond the scope of these Rules. When (e.g., by making a device or important piece of software exces-
disclosure of information relating to the representation appears sively difficult to use). A client may require the lawyer to imple-
to be required by other law, the lawyer must discuss the matter ment special security measures not required by this Rule or
with the client to the extent required by Rule 1.4. If, however, may give informed consent to forgo security measures that
the other law supersedes this Rule and requires disclosure, would otherwise be required by this Rule. Whether a lawyer
subsection (c) (4) permits the lawyer to make such disclosures may be required to take additional steps to safeguard a client’s
as are necessary to comply with the law. information in order to comply with other law, such as state and
A lawyer may be ordered to reveal information relating to federal laws that govern data privacy or that impose notification
the representation of a client by a court or by another tribunal requirements upon the loss of, or unauthorized access to,
or governmental entity claiming authority pursuant to other electronic information, is beyond the scope of these Rules. For
law to compel the disclosure. Absent informed consent of the a lawyer’s duties when sharing information with nonlawyers
client to do otherwise, the lawyer should assert on behalf of outside the lawyer’s own firm, see Rule 5.3, commentary.
the client all nonfrivolous claims that the order is not authorized When transmitting a communication that includes informa-
by other law or that the information sought is protected against tion relating to the representation of a client, the lawyer must

13
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.6 RULES OF PROFESSIONAL CONDUCT

take reasonable precautions to prevent the information from Resolution of a conflict of interest problem under this Rule
coming into the hands of unintended recipients. This duty, requires the lawyer to: 1) clearly identify the client or clients;
however, does not require that the lawyer use special security 2) determine whether a conflict of interest exists; 3) decide
measures if the method of communication affords a reason- whether the representation may be undertaken despite the
able expectation of privacy. Special circumstances, however, existence of a conflict, i.e., whether the conflict is consentable;
may warrant special precautions. Factors to be considered in and 4) if so, consult with the clients affected under subsection
determining the reasonableness of the lawyer’s expectation (a) and obtain their informed consent, confirmed in writing.
of confidentiality include the sensitivity of the information and The clients affected under subsection (a) include both of the
the extent to which the privacy of the communication is pro- clients referred to in subsection (a) (1) and the one or more
tected by law or by a confidentiality agreement. A client may clients whose representation might be materially limited under
require the lawyer to implement special security measures not subsection (a) (2).
required by this Rule or may give informed consent to the A conflict of interest may exist before representation is
use of a means of communication that would otherwise be undertaken, in which event the representation must be
prohibited by this Rule. Whether a lawyer may be required to declined, unless the lawyer obtains the informed consent of
take additional steps in order to comply with other law, such each client under the conditions of subsection (b). To deter-
as state and federal laws that govern data privacy, is beyond mine whether a conflict of interest exists, a lawyer should
the scope of these Rules. adopt reasonable procedures, appropriate for the size and
Former Client. The duty of confidentiality continues after type of firm and practice, to determine in both litigation and
the client-lawyer relationship has terminated. See Rule 1.9 (c) nonlitigation matters the persons and issues involved. See
(2). See Rule 1.9 (c) (1) for the prohibition against using such also Commentary to Rule 5.1. Ignorance caused by a failure
information to the disadvantage of the former client. to institute such procedures will not excuse a lawyer’s violation
of this Rule. As to whether a client-lawyer relationship exists
Rule 1.7. Conflict of Interest: Current Clients or, having once been established, is continuing, see Commen-
tary to Rule 1.3 and Scope.
(Amended June 26, 2006, to take effect Jan. 1, 2007.) If a conflict arises after representation has been undertaken,
(a) Except as provided in subsection (b), a law- the lawyer ordinarily must withdraw from the representation,
yer shall not represent a client if the representation unless the lawyer has obtained the informed consent of the
involves a concurrent conflict of interest. A concur- client under the conditions of subsection (b). See Rule 1.16.
rent conflict of interest exists if: Where more than one client is involved, whether the lawyer
may continue to represent any of the clients is determined
(1) the representation of one client will be both by the lawyer’s ability to comply with duties owed to the
directly adverse to another client; or former client and by the lawyer’s ability to represent adequately
(2) there is a significant risk that the representa- the remaining client or clients, given the lawyer’s duties to the
tion of one or more clients will be materially limited former client. See Rule 1.9; see also the next paragraph in
by the lawyer’s responsibilities to another client, this Commentary and the first paragraph under the ‘‘Special
Considerations in Common Representation’’ heading, below.
a former client or a third person or by a personal Unforeseeable developments, such as changes in corpo-
interest of the lawyer. rate and other organizational affiliations or the addition or
(b) Notwithstanding the existence of a concur- realignment of parties in litigation, might create conflicts in the
rent conflict of interest under subsection (a), a midst of a representation, as when a company sued by the
lawyer may represent a client if: lawyer on behalf of one client is bought by another client
represented by the lawyer in an unrelated matter. Depending
(1) the lawyer reasonably believes that the law- on the circumstances, the lawyer may have the option to with-
yer will be able to provide competent and diligent draw from one of the representations in order to avoid the
representation to each affected client; conflict. The lawyer must seek court approval where necessary
(2) the representation is not prohibited by law; and take steps to minimize harm to the clients. See Rule 1.16.
(3) the representation does not involve the The lawyer must continue to protect the confidences of the
client from whose representation the lawyer has withdrawn.
assertion of a claim by one client against another See Rule 1.9 (c).
client represented by the lawyer in the same litiga- Identifying Conflicts of Interest: Directly Adverse. Loy-
tion or the same proceeding before any tribu- alty to a current client prohibits undertaking representation
nal; and directly adverse to that client without that client’s informed
(4) each affected client gives informed consent, consent. Thus, absent consent, a lawyer may not act as advo-
cate in one matter against a person the lawyer represents in
confirmed in writing. some other matter, even when the matters are wholly unre-
(P.B. 1978-1997, Rule 1.7.) (Amended June 26, 2006, to lated. The client as to whom the representation is directly
take effect Jan. 1, 2007.) adverse is likely to feel betrayed, and the resulting damage
COMMENTARY: General Principles. Loyalty and inde- to the client-lawyer relationship is likely to impair the lawyer’s
pendent judgment are essential elements in the lawyer’s rela- ability to represent the client effectively. In addition, the client
tionship to a client. Concurrent conflicts of interest can arise on whose behalf the adverse representation is undertaken
from the lawyer’s responsibilities to another client, a former reasonably may fear that the lawyer will pursue that client’s
client or a third person or from the lawyer’s own interests. For case less effectively out of deference to the other client, i.e.,
specific Rules regarding certain concurrent conflicts of interest, that the representation may be materially limited by the law-
see Rule 1.8. For former client conflicts of interest, see Rule yer’s interest in retaining the current client. Similarly, a directly
1.9. For conflicts of interest involving prospective clients, see adverse conflict may arise when a lawyer is required to cross-
Rule 1.18. For definitions of ‘‘informed consent’’ and ‘‘con- examine a client who appears as a witness in a lawsuit involv-
firmed in writing,’’ see Rule 1.0 (f) and (c). ing another client, as when the testimony will be damaging to

14
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.7

the client who is represented in the lawsuit. On the other hand, disqualification arising from a close family relationship is per-
simultaneous representation in unrelated matters of clients sonal and ordinarily is not imputed to members of firms with
whose interests are only economically adverse, such as repre- whom the lawyers are associated. See Rule 1.10.
sentation of competing economic enterprises in unrelated liti- A lawyer is prohibited from engaging in a sexual relationship
gation, does not ordinarily constitute a conflict of interest and with a client unless the sexual relationship predates the forma-
thus may not require consent of the respective clients. tion of the client-lawyer relationship. See Rule 1.8 (j).
Directly adverse conflicts can also arise in transactional Interest of Person Paying for a Lawyer’s Service. A
matters. For example, if a lawyer is asked to represent the lawyer may be paid from a source other than the client, includ-
seller of a business in negotiations with a buyer represented ing a co-client, if the client is informed of that fact and consents
by the lawyer, not in the same transaction but in another, and the arrangement does not compromise the lawyer’s duty
unrelated matter, the lawyer could not undertake the represen- of loyalty or independent judgment to the client. See Rule
tation without the informed consent of each client. 1.8 (f). If acceptance of the payment from any other source
Identifying Conflicts of Interest: Material Limitation. presents a significant risk that the lawyer’s representation of
Even where there is no direct adverseness, a conflict of interest the client will be materially limited by the lawyer’s own interest
exists if there is a significant risk that a lawyer’s ability to in accommodating the person paying the lawyer’s fee or by
consider, recommend or carry out an appropriate course of the lawyer’s responsibilities to a payer who is also a co-client,
action for the client will be materially limited as a result of the then the lawyer must comply with the requirements of subsec-
lawyer’s other responsibilities or interests. For example, a tion (b) before accepting the representation, including
lawyer asked to represent several individuals seeking to form determining whether the conflict is consentable and, if so, that
a joint venture is likely to be materially limited in the lawyer’s the client has adequate information about the material risks
ability to recommend or advocate all possible positions that of the representation.
each might take because of the lawyer’s duty of loyalty to the Prohibited Representations. Ordinarily, clients may con-
others. The conflict in effect forecloses alternatives that would sent to representation notwithstanding a conflict. However, as
otherwise be available to the client. The mere possibility of indicated in subsection (b), some conflicts are noncon-
subsequent harm does not itself require disclosure and con- sentable, meaning that the lawyer involved cannot properly
sent. The critical questions are the likelihood that a difference ask for such agreement or provide representation on the basis
in interests will eventuate and, if it does, whether it will materi- of the client’s consent. When the lawyer is representing more
ally interfere with the lawyer’s independent professional judg- than one client, the question of consentability must be resolved
ment in considering alternatives or foreclose courses of action as to each client.
that reasonably should be pursued on behalf of the client. Consentability is typically determined by considering
Lawyer’s Responsibilities to Former Clients and Other whether the interests of the clients will be adequately protected
Third Persons. In addition to conflicts with other current cli- if the clients are permitted to give their informed consent to
ents, a lawyer’s duties of loyalty and independence may be representation burdened by a conflict of interest. Thus, under
materially limited by responsibilities to former clients under subsection (b) (1), representation is prohibited if in the circum-
Rule 1.9 or by the lawyer’s responsibilities to other persons, stances the lawyer cannot reasonably conclude that the lawyer
such as fiduciary duties arising from a lawyer’s service as a will be able to provide competent and diligent representation.
trustee, executor or corporate director. See Rule 1.1 (competence) and Rule 1.3 (diligence).
Personal Interest Conflicts. The lawyer’s own interests Subsection (b) (2) describes conflicts that are noncon-
must not be permitted to have an adverse effect on representa- sentable because the representation is prohibited by applica-
tion of a client. For example, if the probity of a lawyer’s own ble law.
conduct in a transaction is in serious question, it may be difficult Subsection (b) (3) describes conflicts that are noncon-
or impossible for the lawyer to give a client detached advice. sentable because of the institutional interest in vigorous devel-
Similarly, when a lawyer has discussions concerning possible opment of each client’s position when the clients are aligned
employment with an opponent of the lawyer’s client, or with directly against each other in the same litigation or the same
a law firm representing the opponent, such discussions could proceeding before any tribunal. Whether clients are aligned
materially limit the lawyer’s representation of the client. In directly against each other within the meaning of this para-
addition, a lawyer may not allow related business interests to graph requires examination of the context of the proceeding.
affect representation, for example, by referring clients to an Although this paragraph does not preclude a lawyer’s multiple
enterprise in which the lawyer has an undisclosed financial representation of adverse parties to a mediation (because
interest. See Rule 1.8 for specific Rules pertaining to a number mediation is not a proceeding before a ‘‘tribunal’’ under Rule
of personal interest conflicts, including business transactions 1.0 [n]), such representation may be precluded by subsection
with clients; see also Rule 1.10 (personal interest conflicts (b) (1).
under Rule 1.7 ordinarily are not imputed to other lawyers in Informed Consent. Informed consent requires that each
a law firm). affected client be aware of the relevant circumstances and of
When lawyers representing different clients in the same the material and reasonably foreseeable ways that the conflict
matter or in substantially related matters are closely related could have adverse effects on the interests of that client. See
by blood or marriage, there may be a significant risk that Rule 1.0 (f) (informed consent). The information required
client confidences will be revealed and that the lawyer’s family depends on the nature of the conflict and the nature of the
relationship will interfere with both loyalty and independent risks involved. When representation of multiple clients in a
professional judgment. As a result, each client is entitled to single matter is undertaken, the information must include the
know of the existence and implications of the relationship implications of the common representation, including possible
between the lawyers before the lawyer agrees to undertake effects on loyalty, confidentiality and the attorney-client privi-
the representation. Thus, a lawyer related to another lawyer, lege and the advantages and risks involved. See second and
e.g., as parent, child, sibling or spouse, ordinarily may not third paragraphs under the ‘‘Special Considerations in Com-
represent a client in a matter where that lawyer is representing mon Representation’’ heading in this Commentary, below
another party, unless each client gives informed consent. The (effect of common representation on confidentiality).

15
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.7 RULES OF PROFESSIONAL CONDUCT

Under some circumstances it may be impossible to make materialize in the future are such as would make the conflict
the disclosure necessary to obtain consent. For example, nonconsentable under subsection (b).
when the lawyer represents different clients in related matters Conflicts in Litigation. Subsection (b) (3) prohibits repre-
and one of the clients refuses to consent to the disclosure sentation of opposing parties in the same litigation, regardless
necessary to permit the other client to make an informed deci- of the clients’ consent. On the other hand, simultaneous repre-
sion, the lawyer cannot properly ask the latter to consent. In sentation of parties whose interests in litigation may conflict,
some cases the alternative to common representation can be such as coplaintiffs or codefendants, is governed by subsec-
that each party may have to obtain separate representation tion (a) (2). A conflict may exist by reason of substantial dis-
with the possibility of incurring additional costs. These costs, crepancy in the parties’ testimony, incompatibility in positions
along with the benefits of securing separate representation, in relation to an opposing party or the fact that there are
are factors that may be considered by the affected client in substantially different possibilities of settlement of the claims
determining whether common representation is in the cli- or liabilities in question. Such conflicts can arise in criminal
ent’s interests. cases as well as civil. The potential for conflict of interest in
Consent Confirmed in Writing. Subsection (b) requires representing multiple defendants in a criminal case is so grave
the lawyer to obtain the informed consent of the client, con- that ordinarily a lawyer should decline to represent more than
firmed in writing. Such a writing may consist of a document one codefendant. On the other hand, common representation
executed by the client or one that the lawyer promptly records of persons having similar interests in civil litigation is proper
and transmits to the client following an oral consent. See if the requirements of subsection (b) are met.
Rule 1.0 (c); see also Rule 1.0 (o) (writing includes electronic Ordinarily, a lawyer may take inconsistent legal positions
transmission). If it is not feasible to obtain or transmit the in different tribunals at different times on behalf of different
writing at the time the client gives informed consent, then the clients. The mere fact that advocating a legal position on behalf
lawyer must obtain or transmit it within a reasonable time of one client might create precedent adverse to the interests
thereafter. See Rule 1.0 (c). The requirement of a writing does of a client represented by the lawyer in an unrelated matter
not supplant the need in most cases for the lawyer to talk does not create a conflict of interest. A conflict of interest
with the client, to explain the risks and advantages, if any, of exists, however, if there is a significant risk that a lawyer’s
representation burdened with a conflict of interest, as well as action on behalf of one client will materially limit the lawyer’s
reasonably available alternatives, and to afford the client a effectiveness in representing another client in a different case;
reasonable opportunity to consider the risks and alternatives for example, when a decision favoring one client will create
and to raise questions and concerns. Rather, the writing is a precedent likely to seriously weaken the position taken on
required in order to impress upon clients the seriousness of behalf of the other client. Factors relevant in determining
the decision the client is being asked to make and to avoid whether the clients need to be advised of the risk include:
disputes or ambiguities that might later occur in the absence where the cases are pending, whether the issue is substantive
of a writing. or procedural, the temporal relationship between the matters,
the significance of the issue to the immediate and long-term
Revoking Consent. A client who has given consent to a
interests of the clients involved and the clients’ reasonable
conflict may revoke the consent and, like any other client, may
expectations in retaining the lawyer. If there is significant risk
terminate the lawyer’s representation at any time. Whether
of material limitation, then absent informed consent of the
revoking consent to the client’s own representation precludes
affected clients, the lawyer must refuse one of the representa-
the lawyer from continuing to represent other clients depends
tions or withdraw from one or both matters.
on the circumstances, including the nature of the conflict,
When a lawyer represents or seeks to represent a class of
whether the client revoked consent because of a material
plaintiffs or defendants in a class action lawsuit, unnamed
change in circumstances, the reasonable expectations of the
members of the class are ordinarily not considered to be clients
other clients and whether material detriment to the other clients of the lawyer for purposes of applying subsection (a) (1) of
or the lawyer would result. this Rule. Thus, the lawyer does not typically need to get the
Consent to Future Conflict. Whether a lawyer may prop- consent of such a person before representing a client suing
erly request a client to waive conflicts that might arise in the the person in an unrelated matter. Similarly, a lawyer seeking
future is subject to the test of subsection (b). The effectiveness to represent an opponent in a class action does not typically
of such waivers is generally determined by the extent to which need the consent of an unnamed member of the class whom
the client reasonably understands the material risks that the the lawyer represents in an unrelated matter.
waiver entails. The more comprehensive the explanation of Nonlitigation Conflicts. Conflicts of interest under subsec-
the types of future conflicts that might arise and the actual tions (a) (1) and (a) (2) arise in contexts other than litigation.
and reasonably foreseeable adverse consequences of those For a discussion of directly adverse conflicts in transactional
conflicts, the greater the likelihood that the client will have the matters, see second paragraph under ‘‘Identifying Conflicts of
requisite understanding. Thus, if the client agrees to consent Interest: Directly Adverse’’ heading in this Commentary,
to a particular type of conflict with which the client is already above. Relevant factors in determining whether there is signifi-
familiar, then the consent ordinarily will be effective with regard cant risk of material limitation include the duration and intimacy
to that type of conflict. If the consent is general and open- of the lawyer’s relationship with the client or clients involved,
ended, then the consent ordinarily will be ineffective, because the functions being performed by the lawyer, the likelihood
it is not reasonably likely that the client will have understood that disagreements will arise and the likely prejudice to the
the material risks involved. On the other hand, if the client is client from the conflict. The question is often one of proximity
an experienced user of the legal services involved and is and degree. See first paragraph under ‘‘Identifying Conflicts
reasonably informed regarding the risk that a conflict may of Interest: Material Limitation’’ heading in this Commentary,
arise, such consent is more likely to be effective, particularly above.
if, e.g., the client is independently represented by other counsel For example, conflict questions may also arise in estate
in giving consent and the consent is limited to future conflicts planning and estate administration. A lawyer may be called
unrelated to the subject of the representation. In any case, upon to prepare wills for several family members, such as
advance consent cannot be effective if the circumstances that husband and wife, and, depending upon the circumstances,

16
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.7

a conflict of interest may be present. In estate administration, be appropriate for the lawyer to proceed with the representa-
the identity of the client may be unclear under the law of a tion when the clients have agreed, after being properly
particular jurisdiction. Under one view, the client is the fidu- informed, that the lawyer will keep certain information confi-
ciary; under another view the client is the estate or trust, dential. For example, the lawyer may reasonably conclude
including its beneficiaries. In order to comply with conflict of that failure to disclose one client’s trade secrets to another
interest rules, the lawyer should make clear the lawyer’s rela- client will not adversely affect representation involving a joint
tionship to the parties involved. venture between the clients and agree to keep that information
Whether a conflict is consentable depends on the circum- confidential with the informed consent of both clients.
stances. For example, a lawyer may not represent multiple When seeking to establish or adjust a relationship between
parties to a negotiation whose interests are fundamentally clients, the lawyer should make clear that the lawyer’s role is
antagonistic to each other, but common representation is per- not that of partisanship normally expected in other circum-
missible where the clients are generally aligned in interest stances and, thus, that the clients may be required to assume
even though there is some difference in interest among them. greater responsibility for decisions than when each client is
Thus, a lawyer may seek to establish or adjust a relationship separately represented. Any limitations on the scope of the
between clients on an amicable and mutually advantageous representation made necessary as a result of the common
basis; for example, in helping to organize a business in which representation should be fully explained to the clients at the
two or more clients are entrepreneurs, working out the financial outset of the representation. See Rule 1.2 (c).
reorganization of an enterprise in which two or more clients Subject to the above limitations, each client in the common
have an interest or arranging a property distribution in settle- representation has the right to loyal and diligent representation
ment of an estate. The lawyer seeks to resolve potentially and the protection of Rule 1.9 concerning the obligations to
adverse interests by developing the parties’ mutual interests. a former client. The client also has the right to discharge the
Otherwise, each party might have to obtain separate represen- lawyer as stated in Rule 1.16.
tation, with the possibility of incurring additional cost, complica- Organizational Clients. A lawyer who represents a corpo-
tion or even litigation. Given these and other relevant factors, ration or other organization does not, by virtue of that represen-
the clients may prefer that the lawyer act for all of them. tation, necessarily represent any constituent or affiliated
Special Considerations in Common Representation. In organization, such as a parent or subsidiary. See Rule 1.13
considering whether to represent multiple clients in the same (a). Thus, the lawyer for an organization is not barred from
matter, a lawyer should be mindful that if the common repre- accepting representation adverse to an affiliate in an unrelated
sentation fails because the potentially adverse interests cannot matter, unless the circumstances are such that the affiliate
be reconciled, the result can be additional cost, embar- should also be considered a client of the lawyer, there is
rassment and recrimination. Ordinarily, the lawyer will be an understanding between the lawyer and the organizational
forced to withdraw from representing all of the clients if the client that the lawyer will avoid representation adverse to the
common representation fails. In some situations, the risk of client’s affiliates, or the lawyer’s obligations to either the organi-
failure is so great that multiple representation is plainly impos- zational client or the new client are likely to limit materially the
sible. For example, a lawyer cannot undertake common repre- lawyer’s representation of the other client.
sentation of clients where contentious litigation or negotiations A lawyer for a corporation or other organization who is also
between them are imminent or contemplated. Moreover, a member of its board of directors should determine whether
because the lawyer is required to be impartial between com- the responsibilities of the two roles may conflict. The lawyer
monly represented clients, representation of multiple clients is may be called on to advise the corporation in matters involving
improper when it is unlikely that impartiality can be maintained. actions of the directors. Consideration should be given to the
Generally, if the relationship between the parties has already frequency with which such situations may arise, the potential
assumed antagonism, the possibility that the clients’ interests intensity of the conflict, the effect of the lawyer’s resignation
can be adequately served by common representation is not from the board and the possibility of the corporation’s obtaining
very good. Other relevant factors are whether the lawyer sub- legal advice from another lawyer in such situations. If there
sequently will represent both parties on a continuing basis is material risk that the dual role will compromise the lawyer’s
and whether the situation involves creating or terminating a independence of professional judgment, the lawyer should not
relationship between the parties. serve as a director or should cease to act as the corporation’s
A particularly important factor in determining the appropri- lawyer when conflicts of interest arise. The lawyer should
ateness of common representation is the effect on client-law- advise the other members of the board that in some circum-
yer confidentiality and the attorney-client privilege. stances matters discussed at board meetings while the lawyer
As to the duty of confidentiality, continued common repre- is present in the capacity of director might not be protected
sentation will almost certainly be inappropriate if one client by the attorney-client privilege and that conflict of interest
asks the lawyer not to disclose to the other client information considerations might require the lawyer’s recusal as a director
relevant to the common representation. This is so because or might require the lawyer and the lawyer’s firm to decline
the lawyer has an equal duty of loyalty to each client, and the representation of the corporation in a matter.
lawyer should inform each client that each client has the right Conflict Charged by an Opposing Party. Resolving ques-
to be informed of anything bearing on the representation that tions of conflict of interest is primarily the responsibility of the
might affect that client’s interests and the right to expect that lawyer undertaking the representation. In litigation, a court
the lawyer will use that information to that client’s benefit. See may raise the question when there is reason to infer that the
Rule 1.4. To that end, the lawyer must, at the outset of the lawyer has neglected the responsibility. In a criminal case,
common representation and as part of the process of obtaining inquiry by the court is generally required when a lawyer repre-
each client’s informed consent, advise each client that informa- sents multiple defendants. Where the conflict is such as clearly
tion will be shared and that the lawyer will have to withdraw to call in question the fair or efficient administration of justice,
if one client decides prior to disclosure that some matter mate- opposing counsel may properly raise the question. Such an
rial to the representation should be disclosed to the lawyer objection should be viewed with caution, however, for it can
but be kept from the other. In limited circumstances, it may be misused as a technique of harassment.

17
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.8 RULES OF PROFESSIONAL CONDUCT

Rule 1.8. Conflict of Interest: Prohibited (b) A lawyer shall not use information relating
Transactions to representation of a client to the disadvantage of
(a) A lawyer shall not enter into a business the client unless the client gives informed consent,
transaction, including investment services, with a except as permitted or required by these Rules.
client or former client or knowingly acquire an (c) A lawyer shall not solicit any substantial gift
ownership, possessory, security or other pecuni- from a client, including a testamentary gift, or pre-
ary interest adverse to a client or former client pare on behalf of a client an instrument giving
unless: the lawyer or a person related to the lawyer any
(1) The transaction and terms on which the law- substantial gift, unless the lawyer or other recipi-
yer acquires the interest are fair and reasonable ent of the gift is related to the client. For purposes
to the client or former client and are fully disclosed of this paragraph, related persons include a
and transmitted in writing to the client or former spouse, child, grandchild, parent, grandparent or
client in a manner that can be reasonably under- other relative or individual with whom the lawyer or
stood by the client or former client; the client maintains a close, familial relationship.
(2) The client or former client is advised in writ- (d) Prior to the conclusion of representation of
ing that the client or former client should consider a client, a lawyer shall not make or negotiate an
the desirability of seeking and is given a reason- agreement giving the lawyer literary or media
able opportunity to seek the advice of independent rights to a portrayal or account based in substan-
legal counsel in the transaction; tial part on information relating to the represen-
(3) The client or former client gives informed tation.
consent in writing signed by the client or former (e) A lawyer shall not provide financial assis-
client, to the essential terms of the transaction tance to a client in connection with pending or
and the lawyer’s role in the transaction, including contemplated litigation, except that:
whether the lawyer is representing the client in (1) A lawyer may pay court costs and expenses
the transaction; of litigation on behalf of a client, the repayment
(4) With regard to a business transaction, the of which may be contingent on the outcome of
lawyer advises the client or former client in writing the matter;
either (A) that the lawyer will provide legal services (2) A lawyer representing an indigent client may
to the client or former client concerning the trans- pay court costs and expenses of litigation on
action, or (B) that the lawyer will not provide legal behalf of the client.
services to the client or former client and that the (f) A lawyer shall not accept compensation for
lawyer is involved as a business person only and representing a client from one other than the cli-
not as a lawyer representing the client or former ent unless:
client and that the lawyer is not one to whom the
(1) The client gives informed consent; subject
client or former client can turn for legal advice
concerning the transaction; and to revocation by the client, such informed consent
(5) With regard to the providing of investment shall be implied where the lawyer is retained to
services, the lawyer advises the client or former represent a client by a third party obligated under
client in writing (A) whether such services are the terms of a contract to provide the client with
covered by legal liability insurance or other insur- a defense;
ance, and either (B) that the lawyer will provide (2) There is no interference with the lawyer’s
legal services to the client or former client con- independence of professional judgment or with
cerning the transaction, or (C) that the lawyer will the client-lawyer relationship; and
not provide legal services to the client or former (3) Information relating to representation of a
client and that the lawyer is involved as a business client is protected as required by Rule 1.6.
person only and not as a lawyer representing the (g) A lawyer who represents two or more clients
client or former client and that the lawyer is not shall not participate in making an aggregate settle-
one to whom the client or former client can turn ment of the claims of or against the clients, or in
to for legal services concerning the transaction. a criminal case an aggregated agreement as to
Investment services shall only apply where the guilty or nolo contendere pleas, unless each client
lawyer has either a direct or indirect control over gives informed consent, in a writing signed by the
the invested funds and a direct or indirect interest client. The lawyer’s disclosure shall include the
in the underlying investment. existence and nature of all the claims or pleas
For purposes of subsection (a) (1) through (a) involved and of the participation of each person
(5), the phrase ‘‘former client’’ shall mean a client in the settlement. Subject to revocation by the
for whom the two-year period starting from the client and to the terms of the contract, such
conclusion of representation has not expired. informed consent shall be implied and need not
18
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.8

be in writing where the lawyer is retained to repre- client, and the restrictions in subsection (a) are unnecessary
sent a client by a third party obligated under the and impracticable.
Subsection (a) (1) requires that the transaction itself be fair
terms of a contract to provide the client with a to the client and that its essential terms be communicated
defense and indemnity for the loss and the third to the client, in writing, in a manner that can be reasonably
party elects to settle a matter without contribution understood. Subsection (a) (2) requires that the client also be
by the client. advised, in writing, of the desirability of seeking the advice of
(h) A lawyer shall not: independent legal counsel. It also requires that the client be
given a reasonable opportunity to obtain such advice. Subsec-
(1) Make an agreement prospectively limiting tion (a) (3) requires that the lawyer obtain the client’s informed
the lawyer’s liability to a client for malpractice consent, in a writing signed by the client, both to the essential
unless the client is independently represented in terms of the transaction and to the lawyer’s role. When neces-
making the agreement; or sary, the lawyer should discuss both the material risks of
(2) Settle a claim or potential claim for such the proposed transaction, including any risk presented by the
lawyer’s involvement, and the existence of reasonably avail-
liability with an unrepresented client or former cli- able alternatives and should explain why the advice of inde-
ent unless that person is advised in writing of the pendent legal counsel is desirable. See Rule 1.0 (f) (definition
desirability of seeking and is given a reasonable of informed consent).
opportunity to seek the advice of independent The risk to a client is greatest when the client expects the
legal counsel in connection therewith. lawyer to represent the client in the transaction itself or when
(i) A lawyer shall not acquire a proprietary inter- the lawyer’s financial interest otherwise poses a significant risk
that the lawyer’s representation of the client will be materially
est in the cause of action or subject matter of limited by the lawyer’s financial interest in the transaction.
litigation the lawyer is conducting for a client, Here, the lawyer’s role requires that the lawyer must comply,
except that the lawyer may: not only with the requirements of subsection (a), but also with
(1) Acquire a lien granted by law to secure the the requirements of Rule 1.7. Under that Rule, the lawyer must
lawyer’s fee or expenses; and disclose the risks associated with the lawyer’s dual role as
both legal adviser and participant in the transaction, such as
(2) Contract with a client for a reasonable con- the risk that the lawyer will structure the transaction or give
tingent fee in a civil case. legal advice in a way that favors the lawyer’s interests at the
(j) A lawyer shall not have sexual relations with expense of the client. Moreover, the lawyer must obtain the
a client unless a consensual sexual relationship client’s informed consent. In some cases, the lawyer’s interest
existed between them when the client-lawyer rela- may be such that Rule 1.7 will preclude the lawyer from seeking
the client’s consent to the transaction.
tionship commenced. If the client is independently represented in the transaction,
(k) While lawyers are associated in a firm, a subsection (a) (2) of this Rule is inapplicable, and the subsec-
prohibition in the foregoing subsection (a) through tion (a) (1) requirement for full disclosure is satisfied either by
(i) that applies to any one of them shall apply to a written disclosure by the lawyer involved in the transaction
all of them. or by the client’s independent counsel. The fact that the client
(P.B. 1978-1997, Rule 1.8.) (Amended June 26, 2006, to was independently represented in the transaction is relevant
take effect Jan. 1, 2007; amended June 29, 2007, to take in determining whether the agreement was fair and reasonable
effect Jan. 1, 2008.) to the client as subsection (a) (1) further requires.
Use of Information Related to Representation. Use of
COMMENTARY: Business Transactions between Client
information relating to the representation to the disadvantage
and Lawyer. Subsection (a) expressly applies to former clients
of the client violates the lawyer’s duty of loyalty. Subsection
as well as existing clients. A lawyer’s legal skill and training,
(b) applies when the information is used to benefit either the
together with the relationship of trust and confidence between
lawyer or a third person, such as another client or business
lawyer and client, create the possibility of overreaching when associate of the lawyer. For example, if a lawyer learns that
the lawyer participates in a business, property or financial a client intends to purchase and develop several parcels of
transaction with a client, for example, a loan or sales transac- land, the lawyer may not use that information to purchase one
tion or a lawyer investment on behalf of a client. The require- of the parcels in competition with the client or to recommend
ments of subsection (a) must be met even when the transaction that another client make such a purchase. The Rule does not
is not closely related to the subject matter of the representation, prohibit uses that do not disadvantage the client. For example,
as when a lawyer drafting a will for a client learns that the a lawyer who learns a government agency’s interpretation of
client needs money for unrelated expenses and offers to make trade legislation during the representation of one client may
a loan to the client. It also applies to lawyers purchasing prop- properly use that information to benefit other clients. Subsec-
erty from estates they represent. It does not apply to ordinary tion (b) prohibits disadvantageous use of client information
fee arrangements between client and lawyer, which are gov- unless the client gives informed consent, except as permitted
erned by Rule 1.5, although its requirements must be met or required by these Rules. See Rules 1.2 (d), 1.6, 1.9 (c),
when the lawyer accepts an interest in the client’s business 3.3, 4.1 (b), 8.1 and 8.3.
or other nonmonetary property as payment of all or part of a Gifts to Lawyers. A lawyer may accept a gift from a client,
fee. In addition, the Rule does not apply to standard commer- if the transaction meets general standards of fairness. For
cial transactions between the lawyer and the client for products example, a simple gift such as a present given at a holiday
or services that the client generally markets to others, for or as a token of appreciation is permitted. If a client offers the
example, banking or brokerage services, products manufac- lawyer a more substantial gift, subsection (c) does not prohibit
tured or distributed by the client, and utilities’ services. In such the lawyer from accepting it, although such a gift may be
transactions, the lawyer has no advantage in dealing with the voidable by the client under the doctrine of undue influence,

19
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.8 RULES OF PROFESSIONAL CONDUCT

which treats client gifts as presumptively fraudulent. In any there is informed consent from the client. See also Rule 5.4
event, due to concerns about overreaching and imposition on (c) (prohibiting interference with a lawyer’s professional judg-
clients, a lawyer may not suggest that a substantial gift be ment by one who recommends, employs or pays the lawyer
made to the lawyer or for the lawyer’s benefit, except where to render legal services for another).
the lawyer is related to the client as set forth in paragraph (c). Sometimes, it will be sufficient for the lawyer to obtain the
If effectuation of a substantial gift requires preparing a legal client’s informed consent regarding the fact of the payment
instrument such as a will or conveyance, the client should and the identity of the third-party payer. If, however, the fee
have the detached advice that another lawyer can provide. arrangement creates a conflict of interest for the lawyer, then
The sole exception to this Rule is where the client is a relative the lawyer must comply with Rule 1.7. The lawyer must also
of the donee. conform to the requirements of Rule 1.6 concerning confidenti-
This Rule does not prohibit a lawyer from seeking to have ality. Under Rule 1.7 (a), a conflict of interest exists if there
the lawyer or a partner or associate of the lawyer named as is significant risk that the lawyer’s representation of the client
executor of the client’s estate or to another potentially lucrative will be materially limited by the lawyer’s own interest in the
fiduciary position. Nevertheless, such appointments will be fee arrangement or by the lawyer’s responsibilities to the third-
subject to the general conflict of interest provision in Rule 1.7 party payer (for example, when the third-party payer is a co-
when there is a significant risk that the lawyer’s interest in client). Under Rule 1.7 (b), the lawyer may accept or continue
obtaining the appointment will materially limit the lawyer’s inde- the representation with the informed consent of each affected
pendent professional judgment in advising the client concern- client, unless the conflict is nonconsentable under that subsec-
ing the choice of an executor or other fiduciary. In obtaining tion. Under Rule 1.7 (b), the informed consent must be con-
the client’s informed consent to the conflict, the lawyer should firmed in writing.
advise the client concerning the nature and extent of the law- Aggregate Settlements. Differences in willingness to
yer’s financial interest in the appointment, as well as the avail- make or accept an offer of settlement are among the risks of
ability of alternative candidates for the position. common representation of multiple clients by a single lawyer.
Literary Rights. An agreement by which a lawyer acquires Under Rule 1.7, this is one of the risks that should be discussed
literary or media rights concerning the conduct of the represen- before undertaking the representation, as part of the process
tation creates a conflict between the interests of the client and of obtaining the clients’ informed consent. In addition, Rule
the personal interests of the lawyer. Measures suitable in the 1.2 (a) protects each client’s right to have the final say in
representation of the client may detract from the publication deciding whether to accept or reject an offer of settlement and
value of an account of the representation. Subsection (d) does in deciding whether to enter a guilty or nolo contendere plea
not prohibit a lawyer representing a client in a transaction in a criminal case. The rule stated in this paragraph is a corol-
concerning literary property from agreeing that the lawyer’s lary of both these Rules and provides that, before any settle-
fee shall consist of a share in ownership in the property, if the ment offer or plea bargain is made or accepted on behalf of
arrangement conforms to Rule 1.5 and subsections (a) and (i). multiple clients, the lawyer must inform each of them about
Financial Assistance. Lawyers may not subsidize lawsuits all the material terms of the settlement, including what the
or administrative proceedings brought on behalf of their clients, other clients will receive or pay if the settlement or plea offer is
including making or guaranteeing loans to their clients for living accepted. See also Rule 1.0 (f) (definition of informed consent).
expenses, because to do so would encourage clients to pursue Lawyers representing a class of plaintiffs or defendants, or
lawsuits that might not otherwise be brought and because those proceeding derivatively, may not have a full client-lawyer
such assistance gives lawyers too great a financial stake in relationship with each member of the class; nevertheless, such
the litigation. These dangers do not warrant a prohibition on lawyers must comply with applicable rules regulating notifica-
a lawyer lending a client court costs and litigation expenses, tion of class members and other procedural requirements
including the expenses of medical examination and the costs designed to ensure adequate protection of the entire class.
of obtaining and presenting evidence, because these Limiting Liability and Settling Malpractice Claims.
advances are virtually indistinguishable from contingent fees Agreements prospectively limiting a lawyer’s liability for mal-
and help ensure access to the courts. Similarly, an exception practice are prohibited unless the client is independently repre-
allowing lawyers representing indigent clients to pay court sented in making the agreement because they are likely to
costs and litigation expenses regardless of whether these undermine competent and diligent representation. Also, many
funds will be repaid is warranted. clients are unable to evaluate the desirability of making such
Person Paying for a Lawyer’s Services. Subsection (f) an agreement before a dispute has arisen, particularly if they
requires disclosure of the fact that the lawyer’s services are are then represented by the lawyer seeking the agreement.
being paid for by a third party. Such an arrangement must This subsection does not, however, prohibit a lawyer from
also conform to the requirements of Rule 1.6 concerning confi- entering into an agreement with the client to arbitrate legal
dentiality and Rule 1.7 concerning conflict of interest. Where malpractice claims, provided such agreements are enforce-
the client is a class, consent may be obtained on behalf of able and the client is fully informed of the scope and effect of
the class by court-supervised procedure. the agreement. Nor does this subsection limit the ability of
Lawyers are frequently asked to represent a client under lawyers to practice in the form of a limited-liability entity, where
circumstances in which a third person will compensate the permitted by law, provided that each lawyer remains personally
lawyer, in whole or in part. The third person might be a relative liable to the client for his or her own conduct and the firm
or friend, an indemnitor (such as a liability insurance company) complies with any conditions required by law, such as provi-
or a co-client (such as a corporation sued along with one or sions requiring client notification or maintenance of adequate
more of its employees). Because third-party payers frequently liability insurance. Nor does it prohibit an agreement in accord-
have interests that differ from those of the client, including ance with Rule 1.2 that defines the scope of the representation,
interests in minimizing the amount spent on the representation although a definition of scope that makes the obligations of
and in learning how the representation is progressing, lawyers representation illusory will amount to an attempt to limit liability.
are prohibited from accepting or continuing such representa- Agreements settling a claim or a potential claim for malprac-
tions unless the lawyer determines that there will be no interfer- tice are not prohibited by this Rule. Nevertheless, in view of
ence with the lawyer’s independent professional judgment and the danger that a lawyer will take unfair advantage of an

20
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.9

unrepresented client or former client, the lawyer must first subsection (j) is personal and is not applied to associated
advise such a person in writing of the appropriateness of lawyers.
independent representation in connection with such a settle-
ment. In addition, the lawyer must give the client or former Rule 1.9. Duties to Former Clients
client a reasonable opportunity to find and consult indepen- (Amended June 26, 2006, to take effect Jan. 1, 2007.)
dent counsel. (a) A lawyer who has formerly represented a
Acquiring Proprietary Interest in Litigation. Subsection
client in a matter shall not thereafter represent
(i) states the traditional general rule that lawyers are prohibited
from acquiring a proprietary interest in litigation. Like subsec- another person in the same or a substantially
tion (e), the general rule, which has its basis in common-law related matter in which that person’s interests are
champerty and maintenance, is designed to avoid giving the materially adverse to the interests of the former
lawyer too great an interest in the representation. In addition, client unless the former client gives informed con-
when the lawyer acquires an ownership interest in the subject sent, confirmed in writing.
of the representation, it will be more difficult for a client to (b) A lawyer shall not knowingly represent a
discharge the lawyer if the client so desires. The Rule is subject
to specific exceptions developed in decisional law and contin-
person in the same or a substantially related mat-
ued in these Rules. The exception for certain advances of the ter in which a firm with which the lawyer formerly
costs of litigation is set forth in subsection (e). In addition, was associated had previously represented a
subsection (i) sets forth exceptions for liens authorized by law client
to secure the lawyer’s fees or expenses and contracts for (1) whose interests are materially adverse to
reasonable contingent fees. The law of each jurisdiction deter- that person; and
mines which liens are authorized by law. These may include
liens granted by statute, liens originating in common law and
(2) about whom the lawyer had acquired infor-
liens acquired by contract with the client. When a lawyer mation protected by Rules 1.6 and 1.9 (c) that is
acquires by contract a security interest in property other than material to the matter; unless the former client
that recovered through the lawyer’s efforts in the litigation, gives informed consent, confirmed in writing.
such an acquisition is a business or financial transaction with (c) A lawyer who has formerly represented a
a client and is governed by the requirements of subsection client in a matter or whose present or former firm
(a). Contracts for contingent fees in civil cases are governed
by Rule 1.5. has formerly represented a client in a matter shall
Client-Lawyer Sexual Relationships. The relationship not thereafter:
between lawyer and client is a fiduciary one in which the lawyer (1) use information relating to the representa-
occupies the highest position of trust and confidence. The tion to the disadvantage of the former client except
relationship is almost always unequal; thus, a sexual relation- as these Rules would permit or require with
ship between lawyer and client can involve unfair exploitation respect to a client, or when the information has
of the lawyer’s fiduciary role, in violation of the lawyer’s basic
ethical obligation not to use the trust of the client to the client’s
become generally known; or
disadvantage. In addition, such a relationship presents a signif- (2) reveal information relating to the representa-
icant danger that, because of the lawyer’s emotional involve- tion except as these Rules would permit or require
ment, the lawyer will be unable to represent the client without with respect to a client.
impairment of the exercise of independent professional judg- (P.B. 1978-1997, Rule 1.9.) (Amended June 26, 2006, to
ment. Moreover, a blurred line between the professional and take effect Jan. 1, 2007.)
personal relationships may make it difficult to predict to what COMMENTARY: After termination of a client-lawyer rela-
extent client confidences will be protected by the attorney- tionship, a lawyer has certain continuing duties with respect
client evidentiary privilege, since client confidences are pro- to confidentiality and conflicts of interest and thus may not
tected by privilege only when they are imparted in the context represent another client except in conformity with this Rule.
of the client-lawyer relationship. Because of the significant Under this Rule, for example, a lawyer could not properly seek
danger of harm to client interest and because the client’s own to rescind on behalf of a new client a contract drafted on behalf
emotional involvement renders it unlikely that the client could of the former client. So also a lawyer who has prosecuted an
give adequate informed consent, this Rule prohibits the lawyer accused person could not properly represent the accused in
from having sexual relations with a client regardless of whether a subsequent civil action against the government concerning
the relationship is consensual and regardless of the absence the same transaction. Nor could a lawyer who has represented
of prejudice to the client. multiple clients in a matter represent one of the clients against
Sexual relationships that predate the client-lawyer relation- the interest of the others in the same or a substantially related
ship are not prohibited. Issues relating to the exploitation of matter after a dispute arose among the clients in that matter,
the fiduciary relationship and client dependency are dimin- unless all affected clients give informed consent. See last
ished when the sexual relationship existed prior to the com- paragraph of this Commentary, below. Current and former
mencement of the client-lawyer relationship. However, before government lawyers must comply with this Rule to the extent
proceeding with the representation in these circumstances, required by Rule 1.11.
the lawyer should consider whether the lawyer’s ability to rep- The scope of a ‘‘matter’’ for purposes of this Rule depends
resent the client will be materially limited by the relationship. on the facts of a particular situation or transaction. The lawyer’s
See Rule 1.7 (a) (2). involvement in a matter can also be a question of degree.
Imputation of Prohibitions. Under subsection (k), a prohi- When a lawyer has been directly involved in a specific transac-
bition on conduct by an individual lawyer in subsections (a) tion, subsequent representation of other clients with materially
through (i) also applies to all lawyers associated in a firm with adverse interests in that transaction clearly is prohibited. On
the personally prohibited lawyer. The prohibition set forth in the other hand, a lawyer who recurrently handled a type of

21
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.9 RULES OF PROFESSIONAL CONDUCT

problem for a former client is not precluded from later repre- one firm acquired no knowledge or information relating to a
senting another client in a factually distinct problem of that particular client of the firm, and that lawyer later joined another
type even though the subsequent representation involves a firm, neither the lawyer individually nor the second firm is
position adverse to the prior client. Similar considerations can disqualified from representing another client in the same or a
apply to the reassignment of military lawyers between defense related matter even though the interests of the two clients
and prosecution functions within the same military jurisdic- conflict. See Rule 1.10 (b) for the restrictions on a firm once
tions. The underlying question is whether the lawyer was so a lawyer has terminated association with the firm.
involved in the matter that the subsequent representation can Application of subsection (b) depends on a situation’s par-
be justly regarded as a changing of sides in the matter in ticular facts, aided by inferences, deductions or working pre-
question. sumptions that reasonably may be made about the way in
Matters are ‘‘substantially related’’ for purposes of this Rule which lawyers work together. A lawyer may have general
if they involve the same transaction or legal dispute or if there access to files of all clients of a law firm and may regularly
otherwise is a substantial risk that confidential factual informa- participate in discussions of their affairs; it should be inferred
tion as would normally have been obtained in the prior repre- that such a lawyer in fact is privy to all information about all
sentation would materially advance the client’s position in the the firm’s clients. In contrast, another lawyer may have access
subsequent matter. For example, a lawyer who has repre- to the files of only a limited number of clients and participate
sented a businessperson and learned extensive private finan- in discussions of the affairs of no other clients; in the absence
cial information about that person may not then represent that of information to the contrary, it should be inferred that such
person’s spouse in seeking a divorce. Similarly, a lawyer who a lawyer in fact is privy to information about the clients actually
has previously represented a client in securing environmental served but not those of other clients. In such an inquiry, the
permits to build a shopping center would be precluded from burden of proof rests upon the firm whose disqualification
representing neighbors seeking to oppose rezoning of the is sought.
property on the basis of environmental considerations; how- Independent of the question of disqualification of a firm, a
ever, the lawyer would not be precluded, on the grounds of lawyer changing professional association has a continuing
substantial relationship, from defending a tenant of the com- duty to preserve confidentiality of information about a client
pleted shopping center in resisting eviction for nonpayment formerly represented. See Rules 1.6 and 1.9 (c).
of rent. Information that has been disclosed to the public or Subsection (c) provides that information acquired by the
to other parties adverse to the former client ordinarily will not lawyer in the course of representing a client may not subse-
be disqualifying. Information acquired in a prior representation quently be used or revealed by the lawyer to the disadvantage
may have been rendered obsolete by the passage of time, a of the client. However, the fact that a lawyer has once served
circumstance that may be relevant in determining whether two a client does not preclude the lawyer from using generally
representations are substantially related. In the case of an known information about that client when later representing
organizational client, general knowledge of the client’s policies another client.
and practices ordinarily will not preclude a subsequent repre- The provisions of this Rule are for the protection of former
sentation; on the other hand, knowledge of specific facts clients and can be waived if the client gives informed consent,
gained in a prior representation that are relevant to the matter which consent must be confirmed in writing under subsections
in question ordinarily will preclude such a representation. A (a) and (b). See Rule 1.0 (f). With regard to the effectiveness
former client is not required to reveal the confidential informa- of an advance waiver, see Commentary to Rule 1.7. With
tion learned by the lawyer in order to establish a substantial regard to disqualification of a firm with which a lawyer is or
risk that the lawyer has confidential information to use in the was formerly associated, see Rule 1.10.
subsequent matter. A conclusion about the possession of such
information may be based on the nature of the services the Rule 1.10. Imputation of Conflicts of Inter-
lawyer provided the former client and information that would est: General Rule
in ordinary practice be learned by a lawyer providing such
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
services.
Lawyers Moving between Firms. When lawyers have (a) While lawyers are associated in a firm, none
been associated within a firm but then end their association, of them shall knowingly represent a client when
the question of whether a lawyer should undertake representa- any one of them practicing alone would be prohib-
tion is more complicated. There are several competing consid- ited from doing so by Rules 1.7 or 1.9, unless:
erations. First, the client previously represented by the former (1) the prohibition is based on a personal inter-
firm must be reasonably assured that the principle of loyalty
to the client is not compromised. Second, the rule should not est of the disqualified lawyer and does not present
be so broadly cast as to preclude other persons from having a significant risk of materially limiting the repre-
reasonable choice of legal counsel. Third, the rule should not sentation of the client by the remaining lawyers
unreasonably hamper lawyers from forming new associations in the firm; or
and taking on new clients after having left a previous associa- (2) the prohibition is based upon Rule 1.9 (a)
tion. In this connection, it should be recognized that today
many lawyers practice in firms, that many lawyers to some
or 1.9 (b) and arises out of the disqualified lawyer’s
degree limit their practice to one field or another, and that association with a prior firm, and
many move from one association to another several times in (A) the disqualified lawyer is timely screened
their careers. If the concept of imputation were applied with from any participation in the matter and is appor-
unqualified rigor, the result would be radical curtailment of the tioned no part of the fee therefrom;
opportunity of lawyers to move from one practice setting to
another and of the opportunity of clients to change counsel.
(B) written notice is promptly given to any
Subsection (b) operates to disqualify the lawyer only when affected former client to enable the former client
the lawyer involved has actual knowledge of information pro- to ascertain compliance with the provisions of this
tected by Rules 1.6 and 1.9 (c). Thus, if a lawyer, while with Rule, which shall include a description of the
22
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.10

screening procedures employed; a statement of materially limit the representation by others in the firm, the
the firm’s and of the screened lawyer’s compli- firm should not be disqualified. On the other hand, if an oppos-
ing party in a case were owned by a lawyer in the law firm,
ance with these Rules; a statement that review and others in the firm would be materially limited in pursuing
may be available before a tribunal; and an the matter because of loyalty to that lawyer, the personal
agreement by the firm to respond promptly to any disqualification of the lawyer would be imputed to all others
written inquiries or objections by the former client in the firm.
about the screening procedures; and The Rule in subsection (a) also does not prohibit represen-
(C) certifications of compliance with these tation by others in the law firm where the person prohibited from
Rules and with the screening procedures are pro- involvement in a matter is a nonlawyer, such as a paralegal or
legal secretary. Nor does subsection (a) prohibit representa-
vided to the former client by the screened lawyer tion if the lawyer is prohibited from acting because of events
and by a partner of the firm, at reasonable inter- before the person became a lawyer, for example, work that
vals upon the former client’s written request and the person did while a law student. Such persons, however,
upon termination of the screening procedures. must be screened from any personal participation in the matter
(b) When a lawyer has terminated an associa- to avoid communication to others in the firm of confidential
tion with a firm, the firm is not prohibited from information that both the nonlawyers and the firm have a legal
duty to protect. See Rules 1.0 (k) and 5.3.
thereafter representing a person with interests Rule 1.10 (b) operates to permit a law firm, under certain
materially adverse to those of a client represented circumstances, to represent a person with interests directly
by the formerly associated lawyer and not cur- adverse to those of a client represented by a lawyer who
rently represented by the firm, unless: formerly was associated with the firm. The Rule applies regard-
(1) The matter is the same or substantially less of when the formerly associated lawyer represented the
related to that in which the formerly associated client. However, the law firm may not represent a person with
interests adverse to those of a present client of the firm, which
lawyer represented the client; and would violate Rule 1.7. Moreover, the firm may not represent
(2) Any lawyer remaining in the firm has infor- the person where the matter is the same or substantially
mation protected by Rules 1.6 and 1.9 (c) that is related to that in which the formerly associated lawyer repre-
material to the matter. sented the client and any other lawyer currently in the firm
(c) A disqualification prescribed by this Rule has material information protected by Rules 1.6 and 1.9 (c).
may be waived by the affected client under the Rule 1.10 (c) removes imputation with the informed consent
of the affected client or former client under the conditions
conditions stated in Rule 1.7. stated in Rule 1.7. The conditions stated in Rule 1.7 require
(d) The disqualification of lawyers associated the lawyer to determine that the representation is not prohibited
in a firm with former or current government law- by Rule 1.7 (b) and that each affected client or former client
yers is governed by Rule 1.11. has given informed consent to the representation, confirmed
(P.B. 1978-1997, Rule 1.10.) (Amended June 26, 2006, to in writing. In some cases, the risk may be so severe that the
take effect Jan. 1, 2007; amended June 15, 2012, to take conflict may not be cured by client consent. For a discussion
effect Jan. 1, 2013.) of the effectiveness of client waivers of conflicts that might
COMMENTARY: Definition of ‘‘Firm.’’ For purposes of arise in the future, see Rule 1.7 and its commentary. For a
the Rules of Professional Conduct, the term ‘‘firm’’ denotes definition of informed consent, see Rule 1.0 (f).
lawyers in a law partnership, professional corporation, sole Rule 1.10 (a) (2) similarly removes the imputation otherwise
proprietorship or other association authorized to practice law; required by Rule 1.10 (a), but unlike subsection (c), it does
or lawyers employed in a legal services organization or the so without requiring that there be informed consent by the
legal department of a corporation or other organization. See former client. Instead, it requires that the procedures laid out
Rule 1.0 (d). Whether two or more lawyers constitute a firm in subparagraphs (A) through (C) of subsection (a) (2) be
within this definition can depend on the specific facts. See followed. A description of effective screening mechanisms
Rule 1.0 and its Commentary. appears in Rule 1.0 (l) and commentary thereto. Lawyers
Principles of Imputed Disqualification. The rule of should be aware, however, that, even where screening mecha-
imputed disqualification stated in subsection (a) gives effect nisms have been adopted, tribunals may consider additional
to the principle of loyalty to the client as it applies to lawyers factors in ruling upon motions to disqualify a lawyer from pend-
who practice in a law firm. Such situations can be considered ing litigation.
from the premise that a firm of lawyers is essentially one lawyer Subparagraph (A) of subsection (a) (2) does not prohibit
for purposes of the rules governing loyalty to the client, or the screened lawyer from receiving a salary or partnership
from the premise that each lawyer is vicariously bound by the share established by prior independent agreement, but that
obligation of loyalty owed by each lawyer with whom the lawyer lawyer may not receive compensation directly related to the
is associated. Subsection (a) operates only among the lawyers matter in which the lawyer is disqualified.
currently associated in a firm. When a lawyer moves from one The notice required by subparagraph (B) of subsection (a)
firm to another, the situation is governed by Rules 1.9 (b) and (2) generally should include a description of the screened
1.10 (b). lawyer’s prior representation and be given as soon as practica-
The Rule in subsection (a) does not prohibit representation ble after the need for screening becomes apparent. It also
where neither questions of client loyalty nor protection of confi- should include a statement by the screened lawyer and the
dential information are presented. Where one lawyer in a firm firm that the client’s material confidential information has not
could not effectively represent a given client because of strong been disclosed or used in violation of the Rules. The notice
political beliefs, for example, but that lawyer will do no work is intended to enable the former client to evaluate and com-
on the case and the personal beliefs of the lawyer will not ment upon the effectiveness of the screening procedures.

23
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.10 RULES OF PROFESSIONAL CONDUCT

The certifications required by subparagraph (C) of subsec- A firm with which that lawyer is associated may
tion (a) (2) give the former client assurance that the client’s undertake or continue representation in the matter
material confidential information has not been disclosed or
used inappropriately, either prior to timely implementation of
only if the disqualified lawyer is timely screened
a screen or thereafter. If compliance cannot be certified, the from any participation in the matter and is appor-
certificate must describe the failure to comply. tioned no part of the fee therefrom.
Where a lawyer has joined a private firm after having repre- (d) Except as law may otherwise expressly per-
sented the government, imputation is governed by Rule 1.11 mit, a lawyer currently serving as a public officer
(b) and (c), not this Rule. Under Rule 1.11 (d), where a lawyer or employee:
represents the government after having served clients in pri-
vate practice, nongovernmental employment or in another gov-
(1) Is subject to Rules 1.7 and 1.9; and
ernment agency, former-client conflicts are not imputed to (2) Shall not:
government lawyers associated with the individually disquali- (i) Participate in a matter in which the lawyer
fied lawyer. participated personally and substantially while in
Where a lawyer is prohibited from engaging in certain trans- private practice or nongovernmental employment,
actions under Rule 1.8, subsection (k) of that Rule, and not unless the appropriate government agency gives
this Rule, determines whether that prohibition also applies to
other lawyers associated in a firm with the personally prohib-
its informed consent, confirmed in writing; or
ited lawyer. (ii) Negotiate for private employment with any
person who is involved as a party or as lawyer
Rule 1.11. Special Conflicts of Interest for for a party in a matter in which the lawyer is partici-
Former and Current Government Officers pating personally and substantially; except that a
and Employees lawyer serving as a law clerk to a judge, other
(Amended June 26, 2006, to take effect Jan. 1, 2007.) adjudicative officer or arbitrator may negotiate for
(a) Except as law may otherwise expressly per- private employment as permitted by Rule 1.12
mit, a lawyer who has formerly served as a public (b) and subject to the conditions stated in Rule
officer or employee of the government: 1.12 (b).
(1) is subject to Rule 1.9 (c); and (e) As used in this Rule, the term ‘‘matter’’
(2) shall not otherwise represent a client in con- includes:
nection with a matter in which the lawyer partici- (1) Any judicial or other proceeding, application,
pated personally and substantially as a public request for a ruling or other determination, con-
officer or employee, unless the appropriate gov- tract, claim, controversy, investigation, charge,
ernment agency gives its informed consent, con- accusation, arrest or other particular matter
firmed in writing, to the representation. involving a specific party or parties, and
(b) When a lawyer is disqualified from represen- (2) Any other matter covered by the conflict of
tation under subsection (a), no lawyer in a firm interest rules of the appropriate government
with which that lawyer is associated may know- agency.
ingly undertake or continue representation in such (P.B. 1978-1997, Rule 1.11.) (Amended June 26, 2006, to
a matter unless: take effect Jan. 1, 2007.)
COMMENTARY: A lawyer who has served or is currently
(1) The disqualified lawyer is timely screened serving as a public officer or employee is personally subject
from any participation in the matter and is appor- to the Rules of Professional Conduct, including the prohibition
tioned no part of the fee therefrom; and against concurrent conflicts of interest stated in Rule 1.7. In
(2) Written notice is promptly given to the appro- addition, such a lawyer may be subject to statutes and govern-
priate government agency to enable it to ascertain ment regulations regarding conflict of interest. Such statutes
compliance with the provisions of this Rule. and regulations may circumscribe the extent to which the gov-
ernment agency may give consent under this Rule. See Rule
(c) Except as law may otherwise expressly per- 1.0 (f) for the definition of informed consent.
mit, a lawyer having information that the lawyer Subsections (a) (1), (a) (2) and (d) (1) restate the obligations
knows is confidential government information of an individual lawyer who has served or is currently serving
about a person acquired when the lawyer was a as an officer or employee of the government toward a former
public officer or employee, may not represent a government or private client. Rule 1.10 is not applicable to
private client whose interests are adverse to that the conflicts of interest addressed by this Rule. Rather, subsec-
tion (b) sets forth a special imputation rule for former govern-
person in a matter in which the information could ment lawyers that provides for screening and notice. Because
be used to the material disadvantage of that per- of the special problems raised by imputation within a govern-
son. As used in this Rule, the term ‘‘confidential ment agency, subsection (d) does not impute the conflicts of
government information’’ means information that a lawyer currently serving as an officer or employee of the
has been obtained under governmental authority government to other associated government officers or
employees, although ordinarily it will be prudent to screen
and which, at the time this Rule is applied, the such lawyers.
government is prohibited by law from disclosing Subsections (a) (2) and (d) (2) apply regardless of whether
to the public or has a legal privilege not to disclose a lawyer is adverse to a former client and are thus designed
and which is not otherwise available to the public. not only to protect the former client, but also to prevent a lawyer

24
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.12

from exploiting public office for the advantage of another client. For purposes of subsection (e) of this Rule, a ‘‘matter’’ may
For example, a lawyer who has pursued a claim on behalf of continue in another form. In determining whether two particular
the government may not pursue the same claim on behalf of a matters are the same, the lawyer should consider the extent
later private client after the lawyer has left government service, to which the matters involve the same basic facts, the same
except when authorized to do so by the government agency or related parties, and the time elapsed.
under subsection (a). Similarly, a lawyer who has pursued a
claim on behalf of a private client may not pursue the claim Rule 1.12. Former Judge, Arbitrator, Media-
on behalf of the government, except when authorized to do tor or Other Third-Party Neutral
so by subsection (d). As with subsections (a) (1) and (d) (1),
(Amended June 26, 2006, to take effect Jan. 1, 2007.)
Rule 1.10 is not applicable to the conflicts of interest addressed
by these subsections. (a) Except as stated in subsection (d), a lawyer
This Rule represents a balancing of interests. On the one shall not represent anyone in connection with a
hand, where the successive clients are a government agency matter in which the lawyer participated personally
and another client, public or private, the risk exists that power and substantially as a judge or other adjudicative
or discretion vested in that agency might be used for the officer or law clerk to such a person or as an
special benefit of the other client. A lawyer should not be
in a position where benefit to the other client might affect
arbitrator, mediator or other third-party neutral,
performance of the lawyer’s professional functions on behalf unless all parties to the proceeding give informed
of the government. Also, unfair advantage could accrue to the consent, confirmed in writing.
other client by reason of access to confidential government (b) A lawyer shall not negotiate for employment
information about the client’s adversary, obtainable only with any person who is involved as a party or as
through the lawyer’s government service. On the other hand, lawyer for a party in a matter in which the lawyer
the rules governing lawyers presently or formerly employed
by a government agency should not be so restrictive as to is participating personally as a judge or other adju-
inhibit transfer of employment to and from the government. dicative officer, or as an arbitrator, mediator or
The government has a legitimate need to attract qualified other third-party neutral. A lawyer serving as a
lawyers as well as to maintain high ethical standards. Thus, law clerk to a judge or other adjudicative officer
a former government lawyer is disqualified only from particular may negotiate for employment with a party or law-
matters in which the lawyer participated personally and sub-
stantially. The provisions for screening and waiver in subsec-
yer involved in a matter in which the clerk is partici-
tion (b) are necessary to prevent the disqualification rule from pating personally, but only after the lawyer has
imposing too severe a deterrent against entering public ser- notified the judge or other adjudicative officer.
vice. The limitation of disqualification in subsections (a) (2) (c) If a lawyer is disqualified by subsection (a),
and (d) (2) to matters involving a specific party or parties, no lawyer in a firm with which that lawyer is associ-
rather than extending disqualification to all substantive issues ated may knowingly undertake or continue repre-
on which the lawyer worked, serves a similar function.
When a lawyer has been employed by one government sentation in the matter unless:
agency and then moves to a second government agency, it (1) The disqualified lawyer is timely screened
may be appropriate to treat that second agency as another from any participation in the matter and is appor-
client for purposes of this Rule, as when a lawyer is employed tioned no part of the fee therefrom; and
by a city and subsequently is employed by a federal agency. (2) Written notice is promptly given to the parties
However, because the conflict of interest is governed by sub-
section (d), the latter agency is not required to screen the and any appropriate tribunal to enable them to
lawyer as subsection (b) requires a law firm to do. The question ascertain compliance with the provisions of this
of whether two government agencies should be regarded as Rule.
the same or different clients for conflict of interest purposes (d) An arbitrator selected as a partisan of a
is beyond the scope of these Rules. See Commentary to party in a multi-member arbitration panel is not
Rule 1.13.
Subsections (b) and (c) contemplate a screening arrange-
prohibited from subsequently representing that
ment. See Rule 1.0 (l) (requirements for screening proce- party.
dures). These subsections do not prohibit a lawyer from (P.B. 1978-1997, Rule 1.12.) (Amended June 26, 2006, to
receiving a salary or partnership share established by prior take effect Jan. 1, 2007; amended June 13, 2014, to take
independent agreement, but that lawyer may not receive com- effect Jan. 1, 2015.)
pensation directly relating the lawyer’s compensation to the COMMENTARY: This Rule generally parallels Rule 1.11.
fee in the matter in which the lawyer is disqualified. The term ‘‘personally and substantially’’ signifies that a judge
Notice, including a description of the screened lawyer’s prior who was a member of a multi-member court, and thereafter
representation and of the screening procedures employed, left judicial office to practice law, is not prohibited from repre-
generally should be given as soon as practicable after the senting a client in a matter pending in the court, but in which
need for screening becomes apparent. the former judge did not participate. So also the fact that a
Subsection (c) operates only when the lawyer in question former judge exercised administrative responsibility in a court
has knowledge of the information, which means actual knowl- does not prevent the former judge from acting as a lawyer in
edge; it does not operate with respect to information that a matter where the judge had previously exercised remote or
merely could be imputed to the lawyer. incidental administrative responsibility that did not affect the
Subsections (a) and (d) do not prohibit a lawyer from jointly merits. Compare the Comment to Rule 1.11. Participation on
representing a private party and a government agency when the merits or in settlement discussions is considered personal
doing so is permitted by Rule 1.7 and is not otherwise prohib- and substantial. Nominal or ministerial responsibility is not
ited by law. considered personal and substantial.

25
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.12 RULES OF PROFESSIONAL CONDUCT

Like former judges, lawyers who have served as arbitrators, but only if and to the extent the lawyer reasonably
mediators or other third-party neutrals may be asked to repre- believes necessary to prevent substantial injury
sent a client in a matter in which the lawyer participated person-
ally. This Rule forbids such representation unless all of the
to the organization.
parties to the proceedings give their informed consent, con- (d) Subsection (c) shall not apply with respect
firmed in writing. See Rule 1.0 (c) and (f). Other law or codes to information relating to a lawyer’s representation
of ethics governing third-party neutrals may impose more strin- of an organization to investigate an alleged viola-
gent standards of personal or imputed disqualification. See tion of law, or to defend the organization or an
Rule 2.4. officer, employee or other constituent associated
Although lawyers who serve as third-party neutrals do not
have information concerning the parties that is protected under
with the organization against a claim arising out
Rule 1.6, they typically owe the parties an obligation of confi- of an alleged violation of law.
dentiality under law or codes of ethics governing third-party (e) A lawyer who reasonably believes that he or
neutrals. Thus, subsection (c) provides that conflicts of the she has been discharged because of the lawyer’s
personally disqualified lawyer will be imputed to other lawyers actions taken pursuant to subsections (b) or (c),
in a law firm unless the conditions of this subsection are met. or who withdraws under circumstances that
Requirements for screening procedures are stated in Rule
1.0 (l). Subsection (c) (1) does not prohibit the screened lawyer
require or permit the lawyer to take action under
from receiving a salary or partnership share established by either of those subsections, shall proceed as the
prior independent agreement, but that lawyer may not receive lawyer reasonably believes necessary to assure
compensation directly related to the matter in which the lawyer that the organization’s highest authority is
is disqualified. informed of the lawyer’s discharge or withdrawal.
Notice, including a description of the screened lawyer’s prior (f) In dealing with an organization’s directors,
representation and of the screening procedures employed,
generally should be given as soon as practicable after the
officers, employees, members, shareholders or
need for screening becomes apparent. other constituents, a lawyer shall explain the iden-
tity of the client when the lawyer knows or reason-
Rule 1.13. Organization as Client ably should know that the organization’s interests
(a) A lawyer employed or retained by an organi- are adverse to those of the constituents with
zation represents the organization acting through whom the lawyer is dealing.
its duly authorized constituents. (g) A lawyer representing an organization may
(b) If a lawyer for an organization knows that also represent any of its directors, officers,
an officer, employee or other person associated employees, members, shareholders or other con-
with the organization is engaged in action, intends stituents, subject to the provisions of Rule 1.7. If
to act or refuses to act in a matter related to the the organization’s consent to the dual representa-
representation that is a violation of a legal obliga- tion is required by Rule 1.7, the consent shall be
tion to the organization, or a violation of law that given by an appropriate official of the organization
reasonably might be imputed to the organization, other than the individual who is to be represented,
and that is likely to result in substantial injury to or by the shareholders.
the organization, then the lawyer shall proceed (P.B. 1978-1997, Rule 1.13.) (Amended June 26, 2006, to
take effect Jan. 1, 2007.)
as is reasonably necessary in the best interest of COMMENTARY: The Entity as the Client. An organiza-
the organization. tional client is a legal entity, but it cannot act except through
Unless the lawyer reasonably believes that it is its officers, directors, employees, shareholders and other con-
not in the best interest of the organization to do stituents. Officers, directors, employees and shareholders are
so, the lawyer shall refer the matter to higher the constituents of the corporate organizational client. The
authority in the organization, including, if war- duties defined in this Commentary apply equally to unincorpo-
rated associations. ‘‘Other constituents’’ as used in this Com-
ranted by the circumstances, to the highest mentary means the positions equivalent to officers, directors,
authority that can act in behalf of the organization employees and shareholders held by persons acting for orga-
as determined by applicable law. nizational clients that are not corporations.
(c) Except as provided in subsection (d), if When one of the constituents of an organizational client
(1) Despite the lawyer’s efforts in accordance communicates with the organization’s lawyer in that person’s
with subsection (b), the highest authority that can organizational capacity, the communication is protected by
Rule 1.6. Thus, by way of example, if an organizational client
act on behalf of the organization insists upon or requests its lawyer to investigate allegations of wrongdoing,
fails to address in a timely and appropriate manner interviews made in the course of that investigation between
an action, or a refusal to act, that is clearly a the lawyer and the client’s employees or other constituents
violation of law and are covered by Rule 1.6. This does not mean, however, that
(2) The lawyer reasonably believes that the vio- constituents of an organizational client are the clients of the
lawyer. The lawyer may not disclose to such constituents infor-
lation is reasonably certain to result in substantial mation relating to the representation except for disclosures
injury to the organization, then the lawyer may explicitly or impliedly authorized by the organizational client
reveal information relating to the representation in order to carry out the representation or as otherwise permit-
whether or not Rule 1.6 permits such disclosure, ted by Rule 1.6.

26
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.13

When constituents of the organization make decisions for that the lawyer’s services be used in furtherance of the viola-
it, the decisions ordinarily must be accepted by the lawyer tion, but it is required that the matter be related to the lawyer’s
even if their utility or prudence is doubtful. Decisions concern- representation of the organization. If the lawyer’s services are
ing policy and operations, including ones entailing serious risk, being used by an organization to further a crime or fraud by
are not as such in the lawyer’s province. Subsection (b) makes the organization, Rules 1.6 (b) (2) and 1.6 (b) (3) may permit
clear, however, that when the lawyer knows that the organiza- the lawyer to disclose confidential information. In such circum-
tion is likely to be substantially injured by action of an officer stances, Rule 1.2 (d) may also be applicable, in which event,
or other constituent that violates a legal obligation to the organi- withdrawal from the representation under Rule 1.6 (a) (1) may
zation or is in violation of law that might be imputed to the be required.
organization, the lawyer must proceed as is reasonably neces- Subsection (d) makes clear that the authority of a lawyer
sary in the best interest of the organization. As defined in Rule to disclose information relating to a representation in circum-
1.0 (g), knowledge can be inferred from circumstances, and stances described in subsection (c) does not apply with respect
a lawyer cannot ignore the obvious. to information relating to a lawyer’s engagement by an organi-
In determining how to proceed under subsection (b), the zation to investigate an alleged violation of law or to defend
lawyer should give due consideration to the seriousness of the organization or an officer, employee or other person asso-
the violation and its consequences, the responsibility in the ciated with the organization against a claim arising out of an
organization and the apparent motivation of the persons alleged violation of law. This is necessary in order to enable
involved, the policies of the organization concerning such mat- organizational clients to enjoy the full benefits of legal counsel
ters, and any other relevant considerations. Ordinarily, referral in conducting an investigation or defending against a claim.
to a higher authority would be necessary. In some circum- A lawyer who reasonably believes that he or she has been
stances, however, it may be appropriate for the lawyer to ask discharged because of the lawyer’s actions taken pursuant to
the constituent to reconsider the matter; for example, if the subsection (b) or (c), or who withdraws in circumstances that
circumstances involve a constituent’s innocent misunder- require or permit the lawyer to take action under either of these
standing of law and subsequent acceptance of the lawyer’s subsections, must proceed as the lawyer reasonably believes
advice, the lawyer may reasonably believe conclude that the necessary to assure that the organization’s highest authority
best interest of the organization does not require that the is informed of the lawyer’s discharge or withdrawal.
matter be referred to higher authority. If a constituent persists Government Agency. The duty defined in this Rule applies
in conduct contrary to the lawyer’s advice, it will be necessary to governmental organizations. Defining precisely the identity
for the lawyer to take steps to have the matter reviewed by a of the client and prescribing the resulting obligations of such
higher authority in the organization. If the matter is of sufficient lawyers may be more difficult in the government context and
seriousness and importance or urgency to the organization, is a matter beyond the scope of these Rules. See Scope.
referral to higher authority in the organization may be neces- Although in some circumstances the client may be a specific
sary even if the lawyer has not communicated with the constit- agency, it may also be a branch of government, such as the
uent. Any measures taken should, to the extent practicable, executive branch, or the government as a whole. For example,
minimize the risk of revealing information relating to the repre- if the action or failure to act involves the head of a bureau,
sentation to persons outside the organization. Even in circum- either the department of which the bureau is a part or the
relevant branch of government may be the client for purposes
stances where a lawyer is not obligated by Rule 1.13 to
of this Rule. Moreover, in a matter involving the conduct of
proceed, a lawyer may bring to the attention of an organiza-
government officials, a government lawyer may have authority
tional client, including its highest authority, matters that the
under applicable law to question such conduct more exten-
lawyer reasonably believes to be of sufficient importance to
sively than that of a lawyer for a private organization in similar
warrant doing so in the best interest of the organization.
circumstances. Thus, when the client is a governmental orga-
Subsection (b) also makes clear that when it is reasonably nization, a different balance may be appropriate between
necessary to enable the organization to address the matter maintaining confidentiality and assuring that the wrongful act
in a timely and appropriate manner, the lawyer must refer is prevented or rectified, for public business is involved. In
the matter to higher authority, including, if warranted by the addition, duties of lawyers employed by the government or
circumstances, the highest authority that can act on behalf lawyers in military service may be defined by statutes and
of the organization under applicable law. The organization’s regulations. This Rule does not limit that authority. See Scope.
highest authority to whom a matter may be referred ordinarily Clarifying the Lawyer’s Role. There are times when the
will be the board of directors or similar governing body. How- organization’s interest may be or become adverse to those of
ever, applicable law may prescribe that under certain condi- one or more of its constituents. In such circumstances the
tions the highest authority reposes elsewhere; for example, lawyer should advise any constituent, whose interest the law-
in the independent directors of a corporation. yer finds adverse to that of the organization of the conflict or
Relation to Other Rules. The authority and responsibility potential conflict of interest, that the lawyer cannot represent
provided in this Rule are concurrent with the authority and such constituent, and that such person may wish to obtain
responsibility provided in other Rules. In particular, this Rule independent representation. Care must be taken to assure that
does not limit or expand the lawyer’s responsibility under Rules the individual understands that, when there is such adversity of
1.8, 1.16, 3.3 and 4.1. Subsection (c) of this Rule supplements interest, the lawyer for the organization cannot provide legal
Rule 1.6 (b) by providing an additional basis upon which the representation for that constituent individual, and that discus-
lawyer may reveal information relating to the representation, sions between the lawyer for the organization and the individ-
but does not modify, restrict, or limit the provisions of Rule ual may not be privileged.
1.6 (b) (1)–(6). Under subsection (c) the lawyer may reveal Whether such a warning should be given by the lawyer for
such information only when the organization’s highest author- the organization to any constituent individual may turn on the
ity insists upon or fails to address threatened or ongoing action facts of each case.
that is clearly a violation of law, and then only to the extent the Dual Representation. Subsection (e) recognizes that a
lawyer reasonably believes necessary to prevent reasonably lawyer for an organization may also represent a principal offi-
certain substantial injury to the organization. It is not necessary cer or major shareholder.

27
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.13 RULES OF PROFESSIONAL CONDUCT

Derivative Actions. Under generally prevailing law, the those of ten or twelve, are regarded as having opinions that
shareholders or members of a corporation may bring suit to are entitled to weight in legal proceedings concerning their
compel the directors to perform their legal obligations in the custody. So also, it is recognized that some persons of
supervision of the organization. Members of unincorporated advanced age can be quite capable of handling routine finan-
associations have essentially the same right. Such an action cial matters while needing special legal protection concerning
may be brought nominally by the organization, but usually is, in major transactions.
fact, a legal controversy over management of the organization. The fact that a client suffers a disability does not diminish
The question can arise whether counsel for the organization the lawyer’s obligation under these rules. Even if the person
may defend such an action. The proposition that the organiza- has a legal representative, the lawyer should as far as possible
tion is the lawyer’s client does not alone resolve the issue. Most accord the represented person the status of client, particularly
derivative actions are a normal incident of an organization’s in maintaining communication.
affairs, to be defended by the organization’s lawyer like any The client may wish to have family members or other per-
other suit. However, if the claim involves serious charges of sons participate in discussions with the lawyer. When neces-
wrongdoing by those in control of the organization, a conflict sary to assist in the representation, the presence of such
may arise between the lawyer’s duty to the organization and persons generally does not constitute a waiver of the attorney-
the lawyer’s relationship with the board. In those circum- client evidentiary privilege. Nevertheless, the lawyer must
stances, Rule 1.7 governs who should represent the directors keep the client’s interests foremost and, except for protective
and the organization. action authorized under subsection (b), must look to the client,
and not family members, to make decisions on the client’s
Rule 1.14. Client with Impaired Capacity behalf.
(Amended June 26, 2006, to take effect Jan. 1, 2007; If a legal representative has already been appointed for the
amended June 30, 2008, to take effect Jan. 1, 2009.) client, the lawyer should look to the representative for deci-
(a) When a client’s capacity to make or commu- sions on behalf of the client only when such decisions are
within the scope of the authority of the legal representative.
nicate adequately considered decisions in con- In matters involving a minor, whether the lawyer should look
nection with a representation is impaired, whether to the parents as natural guardians may depend on the type
because of minority, mental impairment or for of proceeding or matter in which the lawyer is representing
some other reason, the lawyer shall, as far as the minor. If the lawyer represents the guardian as distinct from
reasonably possible, maintain a normal client-law- the ward, and is aware that the guardian is acting adversely to
the ward’s interest, the lawyer may have an obligation to pre-
yer relationship with the client. vent or rectify the guardian’s misconduct. See Rule 1.2 (d).
(b) When the lawyer reasonably believes that Taking Protective Action. If a lawyer reasonably believes
the client is unable to make or communicate ade- that a client is likely to suffer substantial physical, financial or
quately considered decisions, is likely to suffer other harm unless action is taken, and that a normal client-
substantial physical, financial or other harm lawyer relationship cannot be maintained as provided in sub-
unless action is taken and cannot adequately act section (a) because the client lacks sufficient capacity to com-
municate or to make adequately considered decisions in
in the client’s own interest, the lawyer may take connection with the representation, then subsection (b) per-
reasonably necessary protective action, including mits the lawyer to take protective measures deemed neces-
consulting with individuals or entities that have sary. Such measures could include: consulting with family
the ability to take action to protect the client and, members, using a reconsideration period to permit clarification
in appropriate cases, seeking the appointment of or improvement of circumstances, using voluntary surrogate
decision-making tools such as durable powers of attorney or
a legal representative. consulting with support groups, professional services, adult-
(c) Information relating to the representation of protective agencies or other individuals or entities that have
a client with impaired capacity is protected by Rule the ability to protect the client. In taking any protective action,
1.6. When taking protective action pursuant to the lawyer should be guided by such factors as the wishes
subsection (b), the lawyer is impliedly authorized and values of the client to the extent known, the client’s best
under Rule 1.6 (a) to reveal information about the interests and the goals of intruding into the client’s decision-
making autonomy to the least extent feasible, maximizing cli-
client, but only to the extent reasonably necessary ent capacities and respecting the client’s family and social con-
to protect the client’s interests. nections.
(P.B. 1978-1997, Rule 1.14.) (Amended June 26, 2006, to In determining the extent of the client’s impaired capacity,
take effect Jan. 1, 2007; amended June 30, 2008, to take the lawyer should consider and balance such factors as: the
effect Jan. 1, 2009.) client’s ability to articulate reasoning leading to a decision,
COMMENTARY: The normal client-lawyer relationship is variability of state of mind and ability to appreciate conse-
based on the assumption that the client, when properly advised quences of a decision; the substantive fairness of a decision;
and assisted, is capable of making decisions about important and the consistency of a decision with the known long-term
matters. When the client is a minor or is unable to make commitments and values of the client. In appropriate circum-
or communicate adequately considered decisions, however, stances, the lawyer may seek guidance from an appropriate
maintaining the ordinary client-lawyer relationship may not be diagnostician.
possible in all respects. In particular, a severely incapacitated If a legal representative has not been appointed, the lawyer
person may have no power to make legally binding decisions. should consider whether appointment of a legal representative
Nevertheless, a client with impaired capacity often has the is necessary to protect the client’s interests. In addition, rules
ability to understand, deliberate upon, and reach conclusions of procedure in litigation sometimes provide that minors or
about matters affecting the client’s own well-being. For exam- persons with impaired capacity must be represented by a
ple, children as young as five or six years of age, and certainly guardian or next friend if they do not have a general guardian.

28
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.15

In many circumstances, however, appointment of a legal repre- (2) An ‘‘eligible institution’’ means (i) a bank or
sentative may be more expensive or traumatic for the client savings and loan association authorized by fed-
than circumstances in fact require. Evaluation of such circum-
eral or state law to do business in Connecticut,
stances is a matter entrusted to the professional judgment of
the lawyer. In considering alternatives, however, the lawyer the deposits of which are insured by an agency
should be aware of any law that requires the lawyer to advocate of the United States government, or (ii) an open-
the least restrictive action on behalf of the client. end investment company registered with the
Disclosure of the Client’s Condition. Disclosure of the United States Securities and Exchange Commis-
client’s impaired capacity could adversely affect the client’s sion and authorized by federal or state law to do
interests. For example, raising the question of impaired capac- business in Connecticut. In addition, an eligible
ity could, in some circumstances, lead to proceedings for invol- institution shall meet the requirements set forth
untary conservatorship and/or commitment. Information
relating to the representation is protected by Rule 1.6. There-
in subsection (i) (3) below. The determination of
fore, unless authorized to do so by these rules or other law, whether or not an institution is an eligible institu-
the lawyer may not disclose such information. When taking tion shall be made by the organization designated
protective action pursuant to subsection (b), the lawyer is by the judges of the superior court to administer
impliedly authorized to make the necessary disclosures, even the program pursuant to subsection (i) (4) below,
when the client directs the lawyer to the contrary. Neverthe- subject to the dispute resolution process provided
less, given the risks of disclosure, subsection (c) limits what in subsection (i) (4) (E) below.
the lawyer may disclose in consulting with other individuals
or entities or seeking the appointment of a legal representative.
(3) ‘‘Federal Funds Target Rate’’ means the
At the very least, the lawyer should determine whether it is target level for the federal funds rate set by the
likely that the person or entity consulted with will act adversely Federal Open Market Committee of the Board of
to the client’s interests before discussing matters related to the Governors of the Federal Reserve System from
client. The lawyer’s position in such cases is an unavoidably time to time or, if such rate is no longer available,
difficult one. any comparable successor rate. If such rate or
Emergency Legal Assistance. In an emergency where the successor rate is set as a range, the term ‘‘Federal
health, safety or a financial interest of a person with impaired Funds Target Rate’’ means the upper limit of
capacity is threatened with imminent and irreparable harm, a
lawyer may take legal action on behalf of such a person even
such range.
though the person is unable to establish a client-lawyer rela- (4) ‘‘Interest- or dividend-bearing account’’
tionship or to make or express considered judgments about means (i) an interest-bearing checking account,
the matter, when the person or another acting in good faith or (ii) an investment product which is a daily (over-
on that person’s behalf has consulted with the lawyer. Even night) financial institution repurchase agreement
in such an emergency, however, the lawyer should not act or an open-end money market fund. A daily finan-
unless the lawyer reasonably believes that the person has cial institution repurchase agreement must be fully
no other lawyer, agent or other representative available. The
lawyer should take legal action on behalf of the person only
collateralized by U.S. Government Securities and
to the extent reasonably necessary to maintain the status quo may be established only with an eligible institution
or otherwise avoid imminent and irreparable harm. A lawyer that is ‘‘well-capitalized’’ or ‘‘adequately capital-
who undertakes to represent a person in such an exigent ized’’ as those terms are defined by applicable
situation has the same duties under these Rules as the lawyer federal statutes and regulations. An open-end
would with respect to a client. money market fund must be invested solely in
A lawyer who acts on behalf of a person with impaired U.S. Government Securities or repurchase
capacity in an emergency should keep the confidences of the agreements fully collateralized by U.S. Govern-
person as if dealing with a client, disclosing them only to the
extent necessary to accomplish the intended protective action.
ment Securities, must hold itself out as a ‘‘money
The lawyer should disclose to any tribunal involved and to market fund’’ as that term is defined by federal
any other counsel involved the nature of his or her relationship statutes and regulations under the Investment
with the person. The lawyer should take steps to regularize Company Act of 1940 and, at the time of the
the relationship or implement other protective solutions as investment, must have total assets of at least
soon as possible. Normally, a lawyer would not seek compen- $250,000,000.
sation for such emergency actions taken. (5) ‘‘IOLTA account’’ means an interest- or divi-
Rule 1.15. Safekeeping Property dend-bearing account established by a lawyer or
law firm for clients’ funds at an eligible institution
(a) As used in this Rule, the terms below shall from which funds may be withdrawn upon request
have the following meanings: by the depositor without delay. An IOLTA account
(1) ‘‘Allowable reasonable fees’’ for IOLTA shall include only client or third person funds,
accounts are per check charges, per deposit except as permitted by subsection (i) (6) below.
charges, a fee in lieu of a minimum balance, fed- The determination of whether or not an interest- or
eral deposit insurance fees, sweep fees, and a dividend-bearing account meets the requirements
reasonable IOLTA account administrative or of an IOLTA account shall be made by the organi-
maintenance fee. zation designated by the judges of the superior
29
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.15 RULES OF PROFESSIONAL CONDUCT

court to administer the program pursuant to sub- as to which there are no competing interests.
section (i) (4) below. Where there are competing interests in the prop-
(6) ‘‘Non-IOLTA account’’ means an interest- erty or a portion of the property, the lawyer shall
or dividend-bearing account, other than an IOLTA segregate and safeguard the property subject to
account, from which funds may be withdrawn the competing interests.
upon request by the depositor without delay. (g) The word ‘‘interest(s)’’ as used in this sub-
(7) ‘‘U.S. Government Securities’’ means direct section and subsections (e) and (f) means more
obligations of the United States government, or than the mere assertion of a claim by a third party.
obligations issued or guaranteed as to principal In the event a lawyer is notified by a third party
and interest by the United States or any agency or a third party’s agent of a claim to funds held
or instrumentality thereof, including United States by the lawyer on behalf of a client, but it is unclear
government-sponsored enterprises, as such term to the lawyer whether the third party has a valid
is defined by applicable federal statutes and regu- interest within the meaning of this Rule, the lawyer
lations. may make a written request that the third party
(b) A lawyer shall hold property of clients or or third party’s agent provide the lawyer such rea-
third persons that is in a lawyer’s possession in sonable information and/or documentation as
connection with a representation separate from needed to assist the lawyer in determining
the lawyer’s own property. Funds shall be kept in whether substantial grounds exist for the third par-
a separate account maintained in the state where ty’s claim to the funds. If the third party or third
the lawyer’s office is situated or elsewhere with party’s agent fails to comply with such a request
the consent of the client or third person. Other within sixty days, the lawyer may distribute the
property shall be identified as such and appropri- funds in question to the client.
ately safeguarded. Complete records of such (h) Notwithstanding subsections (b), (c), (d), (e)
account funds and other property shall be kept and (f), lawyers and law firms shall participate in
by the lawyer and shall be preserved for a period the statutory program for the use of interest
of seven years after termination of the represen-
earned on lawyers’ clients’ funds accounts to pro-
tation.
vide funding for the delivery of legal services to
(c) A lawyer may deposit the lawyer’s own funds
the poor by nonprofit corporations whose principal
in a client trust account for the sole purposes of
paying bank service charges on that account or purpose is providing legal services to the poor
obtaining a waiver of fees and service charges and for law school scholarships based on financial
on the account, but only in an amount necessary need. Lawyers and law firms shall place a client’s
for those purposes. or third person’s funds in an IOLTA account if the
(d) Absent a written agreement with the client lawyer or law firm determines, in good faith, that
otherwise, a lawyer shall deposit into a client trust the funds cannot earn income for the client in
account legal fees and expenses that have been excess of the costs incurred to secure such
paid in advance, to be withdrawn by the lawyer income. For the purpose of making this good faith
only as fees are earned or expenses incurred. determination of whether a client’s funds cannot
(e) Upon receiving funds or other property in earn income for the client in excess of the costs
which a client or third person has an interest, incurred to secure such income, the lawyer or law
a lawyer shall promptly notify the client or third firm shall consider the following factors: (1) The
person. Except as stated in this Rule or otherwise amount of the funds to be deposited; (2) the
permitted by law or by agreement with the client expected duration of the deposit, including the
or third person, a lawyer shall promptly deliver to likelihood of delay in resolving the relevant trans-
the client or third person any funds or other prop- action, proceeding or matter for which the funds
erty that the client or third person is entitled to are held; (3) the rates of interest, dividends or
receive and, upon request by the client or third yield at eligible institutions where the funds are
person, shall promptly render a full accounting to be deposited; (4) the costs associated with
regarding such property. establishing and administering interest-bearing
(f) When in the course of representation a law- accounts or other appropriate investments for the
yer is in possession of property in which two or benefit of the client, including service charges,
more persons (one of whom may be the lawyer) minimum balance requirements or fees imposed
have interests, the property shall be kept separate by the eligible institutions; (5) the costs of the
by the lawyer until any competing interests are services of the lawyer or law firm in connection
resolved. The lawyer shall promptly distribute all with establishing and maintaining the account or
portions of the property as to which the lawyer is other appropriate investments; (6) the costs of
able to identify the parties that have interests and preparing any tax reports required for income
30
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.15

earned on the funds in the account or other appro- considered by the institution when setting interest
priate investments; and (7) any other circum- rates or dividends for its non-IOLTA customers,
stances that affect the capability of the funds to provided that such factors do not discriminate
earn income for the client in excess of the costs between IOLTA accounts and non-IOLTA
incurred to secure such income. No lawyer shall accounts and that these factors do not includethe
be subject to discipline for determining in good fact that the account is an IOLTA account. In lieu
faith to deposit funds in the interest earned on of the rate set forth in the first sentence of this
lawyers’ clients’ funds account in accordance with subparagraph, an eligible institution may pay a
this subsection. rate equal to the higher of either (i) one percent
(i) An IOLTA account may only be established per annum, or (ii) sixty percent of the Federal
at an eligible institution that meets the following Funds Target Rate. Such alternate rate shall be
requirements: determined for each calendar quarter as of the
(1) No earnings from the IOLTA account shall first business day of such quarter and shall be
be made available to a lawyer or law firm. deemed net of allowable reasonable fees and ser-
(2) Lawyers or law firms depositing a client’s or vice charges. The eligible institution may offer,
third person’s funds in an IOLTA account shall and the lawyer or law firm may request, a sweep
direct the depository institution: account that provides a mechanism for the over-
(A) To remit interest or dividends, net of allow- night investment of balances in the IOLTA account
able reasonable fees, if any, on the average in an interest- or dividend-bearing account that is
monthly balance in the account, or as otherwise a daily financial institution repurchase agreement
computed in accordance with the institution’s or a money market fund. Nothing in this Rule shall
standard accounting practices, at least quarterly, preclude an eligible institution from paying a
to the organization designated by the judges of higher interest rate or dividend than described
the superior court to administer this statutory above or electing to waive any fees and service
program; charges on an IOLTA account. An eligible institu-
(B) To transmit to the organization administer- tion may choose to pay the higher interest or divi-
ing the program with each remittance a report that dend rate on an IOLTA account in lieu of
identifies the name of the lawyer or law firm for establishing it as a higher rate product.
whom the remittance is sent, the amount of remit- (B) Interest and dividends shall be calculated in
tance attributable to each IOLTA account, the rate accordance with the eligible institution’s standard
and type of interest or dividends applied, the practices for non-IOLTA customers.
amount of interest or dividends earned, the (C) Allowable reasonable fees are the only fees
amount and type of fees and service charges and service charges that may be deducted by
deducted, if any, and the average account bal- an eligible institution from interest earned on an
ance for the period for which the report is made IOLTA account. Allowable reasonable fees may
and such other information as is reasonably be deducted from interest or dividends on an
required by such organization; and IOLTA account only at the rates and in accord-
(C) To transmit to the depositing lawyer or law ance with the customary practices of the eligible
firm at the same time a report in accordance with institution for non-IOLTA customers. No fees or
the institution’s normal procedures for reporting service charges other than allowable reasonable
to its depositors. fees may be assessed against the accrued inter-
(3) Participation by banks, savings and loan est or dividends on an IOLTA account. Any fees
associations, and investment companies in the and service charges other than allowable reason-
IOLTA program is voluntary. An eligible institution able fees shall be the sole responsibility of, and
that elects to offer and maintain IOLTA accounts may only be charged to, the lawyer or law firm
shall meet the following requirements: maintaining the IOLTA account. Fees and service
(A) The eligible institution shall pay no less on charges in excess of the interest or dividends
its IOLTA accounts than the highest interest rate earned on one IOLTA account for any period shall
or dividend generally available from the institution not be taken from interest or dividends earned on
to its non-IOLTA customers when the IOLTA any other IOLTA account or accounts or from the
account meets or exceeds the same minimum principal of any IOLTA account.
balance or other eligibility qualifications on its non- (4) The judges of the superior court, upon rec-
IOLTA accounts, if any. In determining the highest ommendation of the chief court administrator,
interest rate or dividend generally available from shall designate an organization qualified under
the institution to its non-IOLTA customers, an eli- Sec. 501 (c) (3) of the Internal Revenue Code, or
gible institution may consider, in addition to the any subsequent corresponding Internal Revenue
balance in the IOLTA account, factors customarily Code of the United States, as from time to time
31
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.15 RULES OF PROFESSIONAL CONDUCT

amended, to administer the program. The chief above will be exclusively devoted to providing
court administrator shall cause to be printed in funding for the delivery of legal services to the
the Connecticut Law Journal an appropriate poor by nonprofit corporations whose principal
announcement identifying the designated organi- purpose is providing legal services to the poor
zation. The organization administering the pro- and for law school scholarships based on financial
gram shall comply with the following: need and to the collection, management and dis-
(A) Each June mail to each judge of the superior tribution of such funds;
court and to each lawyer or law firm participating (B) Establishing that all interest and dividends
in the program a detailed annual report of all funds earned on such funds, less allowable reasonable
disbursed under the program including the fees, if any, shall be used exclusively for such
amount disbursed to each recipient of funds; purposes;
(B) Each June submit the following in detail (C) Establishing and describing the methods
to the chief court administrator for approval and the organization will utilize to implement and
comment by the Executive Committee of the administer the program and to allocate funds to
superior court: (i) its proposed goals and objec- be disbursed under the program, the frequency
tives for the program; (ii) the procedures it has with which the funds will be disbursed by the orga-
established to avoid discrimination in the award- nization for such purposes, and the segregation
ing of grants; (iii) information regarding the insur- of such funds from other funds of the organization;
ance and fidelity bond it has procured; (iv) a (D) Establishing that the organization shall con-
description of the recommendations and advice sult with and receive recommendations from the
it has received from the Advisory Panel estab- Advisory Panel established by General Statutes
lished by General Statutes § 51-81c and the § 51-81c regarding the implementation and
action it has taken to implement such recommen- administration of the program, including the
dations and advice; (v) the method it utilizes to
method of allocation and the allocation of funds
allocate between the two uses of funds provided
to be disbursed under such program;
for in § 51-81c and the frequency with which it
disburses funds for such purposes; (vi) the proce- (E) Establishing that the organization shall com-
dures it has established to monitor grantees to ply with the requirements of this Rule; and
ensure that any limitations or restrictions on the (F) Establishing that said resolution will not be
use of the granted funds have been observed amended, and the facts and undertakings set forth
by the grantees, such procedures to include the in it will not be altered, until the same shall have
receipt of annual audits of each grantee showing been approved by the judges of the superior court
compliance with grant awards and setting forth and ninety days have elapsed after publication by
quantifiable levels of services that each grantee the chief court administrator of the notice of such
has provided with grant funds; (vii) the procedures approval in the Connecticut Law Journal.
it has established to ensure that no funds that (6) Nothing in this subsection (i) shall prevent
have been awarded to grantees are used for lob- a lawyer or law firm from depositing a client’s or
bying purposes; and (viii) the procedures it has third person’s funds, regardless of the amount of
established to segregate funds to be disbursed such funds or the period for which such funds are
under the program from other funds of the organi- expected to be held, in a separate non-IOLTA
zation; account established on behalf of and for the bene-
(C) Allow the judicial branch access to its books fit of the client or third person. Such an account
and records upon reasonable notice; shall be established as:
(D) Submit to audits by the judicial branch; and (A) A separate clients’ funds account for the
(E) Provide for a dispute resolution process for particular client or third person on which the inter-
resolving disputes as to whether a bank, savings est or dividends will be paid to the client or third
and loan association, or open-end investment person; or
company is an eligible institution within the mean- (B) A pooled clients’ funds account with subac-
ing of this Rule. counting by the bank, savings and loan associa-
(5) Before an organization may be designated tion or investment company or by the lawyer or
to administer this program, it shall file with the law firm, which provides for the computation of
chief court administrator, and the judges of the interest or dividends earned by each client’s or
superior court shall have approved, a resolution third person’s funds and the payment thereof to
of the board of directors of such an organization the client or third person.
which includes provisions: (j) A lawyer who practices in this jurisdiction
(A) Establishing that all funds the organization shall maintain current financial records as pro-
might receive pursuant to subsection (i) (2) (A) vided in this Rule and shall retain the following
32
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.15

records for a period of seven years after termina- media provided that they otherwise comply with
tion of the representation: these Rules and that printed copies can be pro-
(1) receipt and disbursement journals con- duced. These records shall be readily accessible
taining a record of deposits to and withdrawals to the lawyer.
from client trust accounts, specifically identifying (m) Upon dissolution of a law firm or of any
the date, source, and description of each item legal professional corporation, the partners shall
deposited, as well as the date, payee and purpose make reasonable arrangements for the mainte-
of each disbursement; nance of client trust account records specified in
(2) ledger records for all client trust accounts this Rule.
showing, for each separate trust client or benefi- (n) Upon the sale of a law practice, the seller
ciary, the source of all funds deposited, the names shall make reasonable arrangements for the
of all persons for whom the funds are or were maintenance of records specified in this Rule.
held, the amount of such funds, the descriptions (P.B. 1978-1997, Rule 1.15.) (Amended June 26, 2006, to
and amounts of charges or withdrawals, and the take effect Sept. 1, 2006; amended June 29, 2007, to take
effect Sept. 1, 2007; amended June 30, 2008, to take effect
names of all persons or entities to whom such Aug. 1, 2008; amended June 21, 2010, to take effect Aug. 1,
funds were disbursed; 2010; amended June 20, 2011, to take effect Jan. 1, 2012;
(3) copies of retainer and compensation amended June 12, 2015, to take effect Jan. 1, 2016.)
agreements with clients as required by Rule 1.5 HISTORY—2016: In subsections (a) (2) and (a) (5), what
of the Rules of Professional Conduct; had been references to subsection (h) now refer to subsection
(i). Prior to 2016, subsection (f) read: ‘‘When in the course of
(4) copies of accountings to clients or third per- representation a lawyer is in possession of property in which
sons showing the disbursement of funds to them two or more persons (one of whom may be the lawyer) claim
or on their behalf; interests, the property shall be kept separate by the lawyer until
(5) copies of bills for legal fees and expenses the dispute is resolved. The lawyer shall promptly distribute
rendered to clients; all portions of the property as to which the interests are not
(6) copies of records showing disbursements in dispute.’’
Also in 2016, what is now subsection (g) was added, and
on behalf of clients; what had been subsections (g) through (m) were designated
(7) the physical or electronic equivalents of all subsections (h) through (n), respectively. In addition, in what
checkbook registers, bank statements, records of are now subsections (i) (5) (A) and (i) (6), what had been
deposit, prenumbered canceled checks, and sub- references to subsection (h) now refer to subsection (i).
stitute checks provided by a financial institution; COMMENTARY: A lawyer should hold property of others
(8) records of all electronic transfers from client with the care required of a professional fiduciary. Securities
should be kept in a safe deposit box, except when some other
trust accounts, including the name of the person form of safekeeping is warranted by special circumstances.
authorizing transfer, the date of transfer, the name All property that is the property of clients or third persons,
of the recipient and confirmation from the financial including prospective clients, must be kept separate from the
institution of the trust account number from which lawyer’s business and personal property and, if moneys, in
money was withdrawn and the date and the time one or more trust accounts. Separate trust accounts may be
the transfer was completed; warranted when administering estate moneys or acting in simi-
lar fiduciary capacities. A lawyer should maintain on a current
(9) copies of monthly trial balances and at least basis books and records in accordance with generally
quarterly reconciliations of the client trust accepted accounting practices.
accounts maintained by the lawyer; and While normally it is impermissible to commingle the lawyer’s
(10) copies of those portions of client files that own funds with client funds, subsection (c) provides that it is
are reasonably related to client trust account permissible when necessary to pay bank service charges on
that account. Accurate records must be kept regarding which
transactions. part of the funds is the lawyer’s.
(k) With respect to client trust accounts required Lawyers often receive funds from which the lawyer’s fee
by this Rule: will be paid. The lawyer is not required to remit to the clients’
(1) only a lawyer admitted to practice law in this funds account funds that the lawyer reasonably believes repre-
jurisdiction or a person under the direct supervi- sent fees owed. However, a lawyer may not hold funds to
sion of the lawyer shall be an authorized signatory coerce a client into accepting the lawyer’s contention. The
disputed portion of the funds must be kept in a trust account
or authorize transfers from a client trust account; and the lawyer should suggest means for prompt resolution
(2) receipts shall be deposited intact and of the dispute, such as arbitration. The undisputed portion of
records of deposit should be sufficiently detailed the funds shall be promptly distributed.
to identify each item; and Subsection (f) also recognizes that third parties, such as a
(3) withdrawals shall be made only by check client’s creditor who has a lien on funds recovered in a personal
injury action, may have lawful interests in specific funds or
payable to a named payee or by authorized elec- other property in a lawyer’s custody. A lawyer may have a
tronic transfer and not to cash. duty under applicable law to protect such third-party interests
(l) The records required by this Rule may be against wrongful interference by the client. In such cases the
maintained by electronic, photographic, or other lawyer must refuse to surrender the property to the client until

33
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.15 RULES OF PROFESSIONAL CONDUCT

the competing interests are resolved. A lawyer should not transactions are payment instructions to either debit or credit
unilaterally assume to arbitrate a dispute between the client a deposit account. ACH payments are used in a variety of
and the third party, but, when there are substantial grounds payment environments including bill payments, business-to-
for dispute as to the person entitled to the funds, the lawyer business payments, and government payments (e.g. tax
may file an action to have a court resolve the dispute. refunds). In addition to the primary use of ACH transactions,
The word ‘‘interest(s)’’ as used in subsections (e), (f) and retailers and third parties use the ACH system for other types
(g) includes, but is not limited to, the following: a valid judgment of transactions including electronic check conversion (ECC).
concerning disposition of the property; a valid statutory or ECC is the process of transmitting MICR information from
judgment lien, or other lien recognized by law, against the the bottom of a check, converting check payments to ACH
property; a letter of protection or similar obligation that is both transactions depending upon the authorization given by the
(a) directly related to the property held by the lawyer, and account holder at the point-of-purchase. In this type of transac-
(b) an obligation specifically entered into to aid the lawyer in tion, the lawyer should be careful to comply with the require-
obtaining the property; or a written assignment, signed by the ments of subsection (j) (8).
client, conveying an interest in the funds or other property to There are five types of check conversions where a lawyer
another person or entity. should be careful to comply with the requirements of subsec-
The obligations of a lawyer under this Rule are independent tion (j) (8). First, in a ‘‘point-of-purchase conversion,’’ a paper
of those arising from activity other than rendering legal ser- check is converted into a debit at the point of purchase, and
vices. For example, a lawyer who serves only as an escrow the paper check is returned to the issuer. Second, in a ‘‘back-
agent is governed by the applicable law relating to fiduciaries office conversion,’’ a paper check is presented at the point-
even though the lawyer does not render legal services in the of-purchase and is later converted into a debit, and the paper
transaction and is not governed by this Rule. A ‘‘lawyers’ fund’’ check is destroyed. Third, in a ‘‘account-receivable conver-
for client protection provides a means through the collective sion,’’ a paper check is converted into a debit, and the paper
efforts of the bar to reimburse persons who have lost money check is destroyed. Fourth, in a ‘‘telephone-initiated debit’’
or property as a result of dishonest conduct of a lawyer. Where or ‘‘check-by-phone’’ conversion, bank account information is
such a fund has been established, a lawyer must participate provided via the telephone, and the information is converted
where it is mandatory, and, even when it is voluntary, the to a debit. Fifth, in a ‘‘web-initiated debit,’’ an electronic pay-
lawyer should participate. ment is initiated through a secure web environment. Subsec-
Subsection (i) requires lawyers and law firms to participate tion (j) (8) applies to each of the types of electronic funds
in the statutory IOLTA program. The lawyer or law firm should transfers described. All electronic funds transfers shall be
review its IOLTA account at reasonable intervals to determine recorded, and a lawyer should not reuse a check number which
whether changed circumstances require further action with has been previously used in an electronic transfer transaction.
respect to the funds of any client or third person. The potential of these records to serve as safeguards is
Subsection (j) lists the basic financial records that a lawyer realized only if the procedures set forth in subsection (j) (9) are
must maintain with regard to all trust accounts of a law firm. regularly performed. The trial balance is the sum of balances of
These include the standard books of account, and the support- each client’s ledger card (or the electronic equivalent). Its value
ing records that are necessary to safeguard and account for lies in comparing it on a monthly basis to a control balance.
the receipt and disbursement of client or third person funds The control balance starts with the previous month’s balance,
as required by Rule 1.15 of the Rules of Professional Conduct. then adds receipts from the Trust Receipts Journal and sub-
Subsection (j) requires that lawyers maintain client trust tracts disbursements from the Trust Disbursements Journal.
account records, including the physical or electronic equiva- Once the total matches the trial balance, the reconciliation
lents of all checkbook registers, bank statements, records of readily follows by adding amounts of any outstanding checks
deposit, prenumbered canceled checks, and substitute checks and subtracting any deposits not credited by the bank at
for a period of at least seven years after termination of each month’s end. This balance should agree with the bank state-
particular legal engagement or representation. The ‘‘Check ment. Quarterly reconciliation is recommended only as a mini-
Clearing for the 21st Century Act’’ or ‘‘Check 21 Act,’’ codified mum requirement; monthly reconciliation is the preferred
at 12 U.S.C. § 5001 et seq., recognizes ‘‘substitute checks’’ practice given the difficulty of identifying an error (whether by
as the legal equivalent of an original check. A ‘‘substitute the lawyer or the bank) among three months’ transactions.
check’’ is defined at 12 U.S.C. § 5002 (16) as paper reproduc- In some situations, documentation in addition to that listed
tion of the original check that contains an image of the front in subdivisions (1) through (9) of subsection (i) is necessary
and back of the original check; bears a magnetic ink character for a complete understanding of a trust account transaction.
recognition (‘‘MICR’’) line containing all the information The type of document that a lawyer must retain under subdivi-
appearing on the MICR line of the original check; conforms sion (10) of subsection (i) because it is ‘‘reasonably related’’
with generally applicable industry standards for substitute to a client trust transaction will vary depending on the nature
checks; and is suitable for automated processing in the same of the transaction and the significance of the document in
manner as the original check. Banks, as defined in 12 U.S.C. shedding light on the transaction. Examples of documents
§ 5002 (2), are not required to return to customers the original that typically must be retained under this subdivision include
canceled checks. Most banks now provide electronic images correspondence between the client and lawyer relating to a
of checks to customers who have access to their accounts on disagreement over fees or costs or the distribution of proceeds,
internet based websites. It is the lawyer’s responsibility to settlement agreements contemplating payment of funds, set-
download electronic images. Electronic images shall be main- tlement statements issued to the client, documentation relating
tained for the requisite number of years and shall be readily to sharing litigation costs and attorney fees for subrogated
available for printing upon request or shall be printed and claims, agreements for division of fees between lawyers, guar-
maintained for the requisite number years. antees of payment to third parties out of proceeds recovered
The ACH (Automated Clearing House) Network is an elec- on behalf of a client, and copies of bills, receipts or correspon-
tronic funds transfer or payment system that primarily provides dence related to any payments to third parties on behalf of a
for the interbank clearing of electronic payments between origi- client (whether made from the client’s funds or from the law-
nating and receiving participating financial institutions. ACH yer’s funds advanced for the benefit of the client).

34
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.16

Subsection (k) lists minimal accounting controls for client seventeenth paragraphs, what had been references to subsec-
trust accounts. It also enunciates the requirement that only a tion (i) now refer to subsection (j). In the fourteenth and six-
lawyer admitted to the practice of law in this jurisdiction or a teenth paragraphs, what had been references to subsection
person who is under the direct supervision of the lawyer shall (j) now refer to subsection (k). In the first sentence of the
be the authorized signatory or authorized to make electronic seventeenth paragraph, what had been a reference to subsec-
transfers from a client trust account. While it is permissible to tion (k) now refers to subsection (l). In the first sentence of
grant limited nonlawyer access to a client trust account, such the eighteenth paragraph, what had been references to sub-
access should be limited and closely monitored by the lawyer. sections (l) and (m) now refer to subsections (m) and (n),
The lawyer has a nondelegable duty to protect and preserve respectively.
the funds in a client trust account and can be disciplined for AMENDMENT NOTE: The revisions to this rule and its
failure to supervise subordinates who misappropriate client commentary address issues related to unwarranted obstruc-
funds. See Rules 5.1 and 5.3 of the Rules of Professional tion of disbursements and unsubstantiated claims. Under sub-
Conduct. section (f) as revised, a lawyer is obligated to hold property
Authorized electronic transfers shall be limited to (1) money only where two or more persons have competing interests
required for payment to a client or third person on behalf of in the property and is not prevented from making a proper
a client; (2) expenses properly incurred on behalf of a client, disbursement because there is a mere claim or dispute lacking
such as filing fees or payment to third persons for services a mature legal interest in the property. The term ‘‘interest(s)’’
rendered in connection with the representation; or (3) money is defined in new subsection (g) of the rule as is a process
transferred to the lawyer for fees that are earned in connection by which the lawyer may request information to assist the
with the representation and are not in dispute; or (4) money lawyer in determining whether substantial grounds exist for
transferred from one client trust account to another client the claim to the property.
trust account.
The requirements in subdivision (2) of subsection (k) that Rule 1.16. Declining or Terminating Repre-
receipts shall be deposited intact mean that a lawyer cannot
deposit one check or negotiable instrument into two or more
sentation
accounts at the same time, a practice commonly known as a (a) Except as stated in subsection (c), a lawyer
split deposit. shall not represent a client or, where representa-
Subsection (l) allows the use of alternative media for the tion has commenced, shall withdraw from the rep-
maintenance of client trust account records if printed copies
of necessary reports can be produced. If trust records are
resentation of a client if:
computerized, a system of regular and frequent (preferably (1) The representation will result in violation of
daily) backup procedures is essential. If a lawyer uses third- the Rules of Professional Conduct or other law;
party electronic or internet based file storage, the lawyer must (2) The lawyer’s physical or mental condition
make reasonable efforts to ensure that the company has in materially impairs the lawyer’s ability to represent
place, or will establish reasonable procedures to protect the
confidentiality of client information. See, ABA Formal Ethics
the client; or
Opinion 398 (1995). Records required by subsection (j) shall (3) The lawyer is discharged.
be readily accessible and shall be readily available to be pro- (b) Except as stated in subsection (c), a lawyer
duced upon request by the client or third person who has an may withdraw from representing a client if:
interest as provided in Rule 1.15 of the Rules of Professional
Conduct, or by the official request of a disciplinary authority,
(1) withdrawal can be accomplished without
including but not limited to, a subpoena duces tecum. Personal material adverse effect on the interests of the
identifying information in records produced upon request by client;
the client or third person or by disciplinary authority shall (2) the client persists in a course of action
remain confidential and shall be disclosed only in a manner involving the lawyer’s services that the lawyer rea-
to ensure client confidentiality as otherwise required by law
or court rule.
sonably believes is criminal or fraudulent;
Subsections (m) and (n) provide for the preservation of a (3) the client has used the lawyer’s services to
lawyer’s client trust account records in the event of dissolution perpetrate a crime or fraud;
or sale of a law practice. Regardless of the arrangements the (4) the client insists upon taking action that the
partners or shareholders make among themselves for mainte- lawyer considers repugnant or with which the law-
nance of the client trust records, each partner may be held
responsible for ensuring the availability of these records. For
yer has a fundamental disagreement;
the purposes of these Rules, the terms ‘‘law firm,’’ ‘‘partner,’’ (5) the client fails substantially to fulfill an obliga-
and ‘‘reasonable’’ are defined in accordance with Rules 1.0 tion to the lawyer regarding the lawyer’s services
(d), (h), and (i) of the Rules of Professional Conduct. and has been given reasonable warning that the
HISTORY—2016: In the fourth paragraph of the commen- lawyer will withdraw unless the obligation is ful-
tary, in the first sentence, ‘‘claims against’’ was deleted after
‘‘lawful’’ and was replaced by ‘‘interests in.’’ In the second
filled;
sentence, ‘‘claims’’ was deleted after ‘‘third-party’’ and was (6) the representation will result in an unreason-
replaced by ‘‘interests.’’ In the third sentence, ‘‘claims’’ was able financial burden on the lawyer or has been
deleted after ‘‘until the’’ and was replaced by ‘‘competing inter- rendered unreasonably difficult by the client; or
ests.’’ In the fifth paragraph, in the first sentence, parentheses (7) other good cause for withdrawal exists.
were added to ‘‘interest(s)’’ and references to subsections (e)
and (g) were added. In the seventh and thirteenth paragraphs, (c) A lawyer must comply with applicable law
what had been references to subsection (h) now refer to sub- requiring notice to or permission of a tribunal when
section (i). In the eighth, ninth, tenth, eleventh, twelfth, and terminating a representation. When ordered to do
35
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.16 RULES OF PROFESSIONAL CONDUCT

so by a tribunal, a lawyer shall continue represen- If the client has diminished capacity, the client may lack
tation notwithstanding good cause for terminating the legal capacity to discharge the lawyer and, in any event,
the discharge may be seriously adverse to the client’s inter-
the representation. ests. The lawyer should make special effort to help the client
(d) Upon termination of representation, a lawyer consider the consequences and may take reasonably neces-
shall take steps to the extent reasonably practica- sary protective action as provided in Rule 1.14.
ble to protect a client’s interests, such as giving Assisting the Client upon Withdrawal. Even if the lawyer
reasonable notice to the client, allowing time for has been unfairly discharged by the client, a lawyer must take
employment of other counsel, surrendering all reasonable steps to mitigate the consequences to the client.
The lawyer may retain papers as security for a fee only to the
papers and property to which the client is entitled extent permitted by law. See Rule 1.5.
and refunding any advance payment of the fee Confirmation in Writing. A written statement to the client
that has not been earned. The lawyer may retain confirming the termination of the relationship and the basis of
papers relating to the client to the extent permitted the termination reduces the possibility of misunderstanding
by other law. If the representation of the client is the status of the relationship. The written statement should
terminated either by the lawyer withdrawing from be sent to the client before or within a reasonable time after
the termination of the relationship.
representation or by the client discharging the law-
yer, the lawyer shall confirm the termination in Rule 1.17. Sale of Law Practice
writing to the client before or within a reasonable
A lawyer or a law firm may sell or purchase a
time after the termination of the representation.
(P.B. 1978-1997, Rule 1.16.) (Amended June 25, 2001, to law practice, or an area of practice, including good
take effect Jan. 1, 2002; amended June 26, 2006, to take will, if the following conditions are satisfied:
effect Jan. 1, 2007.) (a) The seller ceases to engage in the private
COMMENTARY: A lawyer should not accept representation practice of law, or in the area of practice that has
in a matter unless it can be performed competently, promptly, been sold, in Connecticut;
without improper conflict of interest and to completion. Ordi-
narily, a representation in a matter is completed when the
(b) The entire practice, or the entire area of
agreed upon assistance has been concluded. See Rules 1.2 practice, is sold to one or more lawyers or law
(c) and 6.5. See also Rule 1.3, Commentary. firms;
Mandatory Withdrawal. A lawyer ordinarily must decline (c) The seller gives written notice to each of the
or withdraw from representation if the client demands that the seller’s clients regarding:
lawyer engage in conduct that is illegal or violates the Rules (1) the proposed sale;
of Professional Conduct or other law. The lawyer is not obliged
to decline or withdraw simply because the client suggests such
(2) the client’s right to retain other counsel or
a course of conduct; a client may make such a suggestion in to take possession of the file; and
the hope that a lawyer will not be constrained by a profes- (3) the fact that the client’s consent to the trans-
sional obligation. fer of the client’s files will be presumed if the client
When a lawyer has been appointed to represent a client, does not take any action or does not otherwise
withdrawal ordinarily requires approval of the appointing object within ninety days of receipt of the notice.
authority. See also Rule 6.2. Similarly, court approval or notice
to the court is often required by applicable law before a lawyer
If a client cannot be given notice, the representa-
withdraws from pending litigation. Difficulty may be encoun- tion of that client may be transferred to the pur-
tered if withdrawal is based on the client’s demand that the chaser only upon entry of an order so authorizing
lawyer engage in unprofessional conduct. The court may by a court having jurisdiction. The seller may dis-
request an explanation for the withdrawal, while the lawyer close to the court in camera information relating
may be bound to keep confidential the facts that would consti- to the representation only to the extent necessary
tute such an explanation. Lawyers should be mindful of their
obligations to both clients and the court under Rules 1.6
to obtain an order authorizing the transfer of a file.
and 3.3. (d) The fees charged clients shall not be
Withdrawal of Limited Appearance. When the lawyer has increased by reason of the sale.
filed a limited appearance under Practice Book Section 3-8 (Adopted June 26, 2006, to take effect Jan. 1, 2007.)
(b) and the lawyer has completed the representation described COMMENTARY: The practice of law is a profession, not
in the limited appearance, the lawyer is not required to obtain merely a business. Clients are not commodities that can be
permission of the tribunal to terminate the representation purchased and sold at will. Pursuant to this Rule, when a
before filing the certificate of completion. lawyer or an entire firm ceases to practice, or ceases to prac-
Discharge. A client has a right to discharge a lawyer at tice in an area of law, and other lawyers or firms take over
any time, with or without cause, subject to liability for payment the representation, the selling lawyer or firm may obtain com-
for the lawyer’s services. Where future dispute about the with- pensation for the reasonable value of the practice as may
drawal may be anticipated, it may be advisable to prepare a withdrawing partners of law firms. See Rules 5.4 and 5.6.
written statement reciting the circumstances. Termination of Practice by the Seller. The requirement
Whether a client can discharge appointed counsel may that all of the private practice, or all of an area of practice, be
depend on applicable law. A client seeking to do so should sold is satisfied if the seller in good faith makes the entire
be given a full explanation of the consequences. These conse- practice, or the area of practice, available for sale to the pur-
quences may include a decision by the appointing authority chasers. The fact that a number of the seller’s clients decide
that appointment of successor counsel is unjustified, thus not to be represented by the purchasers but take their matters
requiring the client to represent himself or herself. elsewhere, therefore, does not result in a violation.

36
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 1.18

The requirement that the seller cease to engage in the disposition of their files, the Rule requires an order from a
private practice of law does not prohibit employment as a court having jurisdiction authorizing their transfer or other dis-
lawyer on the staff of a public agency or a legal services entity position. The court can be expected to determine whether
that provides legal services to the poor, or as in-house counsel reasonable efforts to locate the client have been exhausted,
to a business. and whether the absent client’s legitimate interests will be
The Rule permits a sale of an entire practice attendant served by authorizing the transfer of the file so that the pur-
upon retirement from the private practice of law within the chaser may continue the representation. Preservation of client
jurisdiction. Its provisions, therefore, accommodate the lawyer confidences requires that the petition for a court order be
who sells the practice upon the occasion of moving to another considered in camera. This procedure is contemplated as an
state. Some states are so large that a move from one locale in camera review of privileged materials.
therein to another is tantamount to leaving the jurisdiction in All the elements of client autonomy, including the client’s
which the lawyer has engaged in the practice of law. To also absolute right to discharge a lawyer and transfer the represen-
accommodate lawyers so situated, states may permit the sale tation to another, survive the sale of the practice or area of
of the practice when the lawyer leaves the geographic area practice.
rather than the jurisdiction. The alternative desired should be Fee Arrangements between Client and Purchaser. The
indicated by selecting one of the two provided for in Rule sale may not be financed by increases in fees charged exclu-
1.17 (a). sively to the clients of the purchased practice. Existing
This Rule also permits a lawyer or law firm to sell an area agreements between the seller and the client as to fees and
of practice. If an area of practice is sold and the lawyer remains the scope of the work must be honored by the purchaser.
in the active practice of law, the lawyer must cease accepting Other Applicable Ethical Standards. Lawyers participat-
any matters in the area of practice that has been sold, either ing in the sale of a law practice or a practice area are subject
as counsel or co-counsel or by assuming joint responsibility to the ethical standards applicable to involving another lawyer
for a matter in connection with the division of a fee with another in the representation of a client. These include, for example,
lawyer as would otherwise be permitted by Rule 1.5 (e). For the seller’s obligation to exercise competence in identifying a
example, a lawyer with a substantial number of estate planning purchaser qualified to assume the practice and the purchaser’s
matters and a substantial number of probate administration obligation to undertake the representation competently (see
cases may sell the estate planning portion of the practice but Rule 1.1); the obligation to avoid disqualifying conflicts, and
remain in the practice of law by concentrating on probate to secure the client’s informed consent for those conflicts that
administration; however, that practitioner may not thereafter can be agreed to (see Rule 1.7 regarding conflicts and Rule
accept any estate planning matters. Although a lawyer who 1.0 for the definition of informed consent); and the obligation
leaves a jurisdiction or geographical area typically would sell to protect information relating to the representation (see Rules
the entire practice, this Rule permits the lawyer to limit the 1.6 and 1.9).
sale to one or more areas of the practice, thereby preserving
If approval of the substitution of the purchasing lawyer for
the lawyer’s right to continue practice in the areas of the prac-
the selling lawyer is required by the rules of any tribunal in
tice that were not sold.
which a matter is pending, such approval must be obtained
Sale of Entire Practice or Entire Area of Practice. The
before the matter can be included in the sale (see Rule 1.16).
Rule requires that the seller’s entire practice, or an entire area
Applicability of the Rule. This Rule applies to the sale of
of practice, be sold. The prohibition against sale of less than
a law practice by representatives of a deceased, disabled or
an entire practice area protects those clients whose matters
disappeared lawyer. Thus, the seller may be represented by
are less lucrative and who might find it difficult to secure other
counsel if a sale could be limited to substantial fee-generating a nonlawyer representative not subject to these Rules. Since,
matters. The purchasers are required to undertake all client however, no lawyer may participate in a sale of a law practice
matters in the practice or practice area, subject to client con- which does not conform to the requirements of this Rule, the
sent. This requirement is satisfied, however, even if a pur- representatives of the seller as well as the purchasing lawyer
chaser is unable to undertake a particular client matter can be expected to see to it that they are met.
because of a conflict of interest. Admission to or retirement from a law partnership or profes-
Client Confidences, Consent and Notice. Negotiations sional association, retirement plans and similar arrangements,
between a seller and a prospective purchaser prior to disclo- and a sale of tangible assets of a law practice, do not constitute
sure of information relating to a specific representation of an a sale or purchase governed by this Rule.
identifiable client no more violate the confidentiality provisions This Rule does not apply to the transfers of legal representa-
of Rule 1.6 than do preliminary discussions concerning the tion between lawyers when such transfers are unrelated to
possible association of another lawyer or mergers between the sale of a practice or an area of practice.
firms, with respect to which client consent is not required. See
Rule 1.6 (c) (5). Providing the purchaser access to detailed Rule 1.18. Duties to Prospective Client
information relating to the representation, such as the client’s (a) A person who consults with a lawyer con-
file, however, requires client consent. The Rule provides that cerning the possibility of forming a client-lawyer
before such information can be disclosed by the seller to the
purchaser the client must be given actual written notice of the
relationship with respect to a matter is a prospec-
contemplated sale, including the identity of the purchaser, tive client.
and must be told that the decision to consent or make other (b) Even when no client-lawyer relationship
arrangements must be made within ninety days. If nothing is ensues, a lawyer who has learned information
heard from the client within that time, consent to the sale from a prospective client shall not use or reveal
is presumed. that information, except as Rule 1.9 would permit
A lawyer or law firm ceasing to practice cannot be required
to remain in practice because some clients cannot be given with respect to information of a former client.
actual notice of the proposed purchase. Since these clients (c) A lawyer subject to subsection (b) shall not
cannot themselves consent to the purchase or direct any other represent a client with interests materially adverse
37
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 1.18 RULES OF PROFESSIONAL CONDUCT

to those of a prospective client in the same or a the matter is one that the lawyer is willing to undertake. Subsec-
substantially related matter if the lawyer received tion (b) prohibits the lawyer from using or revealing that infor-
mation, except as permitted by Rule 1.9, even if the client or
information from the prospective client that could lawyer decides not to proceed with the representation. The
be significantly harmful to that person in the mat- duty exists regardless of how brief the initial consultation
ter, except as provided in subsection (d). If a law- may be.
yer is disqualified from representation under this In order to avoid acquiring disqualifying information from
paragraph, no lawyer in a firm with which that a prospective client, a lawyer considering whether or not to
lawyer is associated may knowingly undertake or undertake a new matter should limit the initial consultation to
only such information as reasonably appears necessary for
continue representation in such a matter, except that purpose. Where the information indicates that a conflict
as provided in subsection (d). of interest or other reason for nonrepresentation exists, the
(d) When the lawyer has received disqualifying lawyer should so inform the prospective client or decline the
information as defined in subsection (c), represen- representation. If the prospective client wishes to retain the
tation is permissible if: lawyer, and if consent is possible under Rule 1.7, then consent
(1) both the affected client and the prospective from all affected present or former clients must be obtained
before accepting the representation.
client have given informed consent, confirmed in A lawyer may condition consultations with a prospective
writing, or client on the person’s informed consent that no information
(2) the lawyer who received the information took disclosed during the consultation will prohibit the lawyer from
reasonable measures to avoid exposure to more representing a different client in the matter. See Rule 1.0 (f)
disqualifying information than was reasonably for the definition of informed consent. If the agreement
expressly so provides, the prospective client may also consent
necessary to determine whether to represent the to the lawyer’s subsequent use of information received from
prospective client; and the prospective client.
(i) the disqualified lawyer is timely screened Even in the absence of an agreement, under subsection
from any participation in the matter; and (c), the lawyer is not prohibited from representing a client with
(ii) written notice is promptly given to the pro- interests adverse to those of the prospective client in the same
or a substantially related matter unless the lawyer has received
spective client. from the prospective client information that could be signifi-
(Adopted June 26, 2006, to take effect Jan. 1, 2007;
cantly harmful if used in the matter.
amended June 13, 2014, to take effect Jan. 1, 2015.)
Under subsection (c), the prohibition in this Rule is imputed
COMMENTARY: Prospective clients, like clients, may dis-
to other lawyers as provided in Rule 1.10, but, under subsec-
close information to a lawyer, place documents or other prop- tion (d) (1), imputation may be avoided if the lawyer obtains
erty in the lawyer’s custody, or rely on the lawyer’s advice. A the informed consent, confirmed in writing, of both the prospec-
lawyer’s consultations with a prospective client usually are tive and affected clients. In the alternative, imputation may be
limited in time and depth and leave both the prospective client avoided if the conditions of subsection (d) (2) are met and all
and the lawyer free (and sometimes required) to proceed no disqualified lawyers are timely screened and written notice
further. Hence, prospective clients should receive some but is promptly given to the prospective client. See Rule 1.0 (l)
not all of the protection afforded clients. (requirements for screening procedures).
A person becomes a prospective client by consulting with Notice, including a general description of the subject matter
a lawyer about the possibility of forming a client-lawyer rela- about which the lawyer was consulted, and of the screening
tionship with respect to a matter. Whether communications, procedures employed, generally should be given as soon as
including written, oral, or electronic communications, consti- practicable after the need for screening becomes apparent.
tute a consultation depends on the circumstances. For exam- For the duty of competence of a lawyer who gives assis-
ple, a consultation is likely to have occurred if a lawyer, either tance on the merits of a matter to a prospective client, see Rule
in person or through the lawyer’s advertising in any medium, 1.1. For a lawyer’s duties when a prospective client entrusts
specifically requests or invites the submission of information valuables or papers to the lawyer’s care, see Rule 1.15.
about a potential representation without clear and reasonably
understandable warnings and cautionary statements that limit COUNSELOR
the lawyer’s obligations, and a person provides information in
response. In contrast, a consultation does not occur if a person Rule 2.1. Advisor
provides information to a lawyer in response to advertising that In representing a client, a lawyer shall exercise
merely describes the lawyer’s education, experience, areas of
practice, and contact information, or provides legal information
independent professional judgment and render
of general interest. Such a person communicates information candid advice. In rendering advice, a lawyer may
unilaterally to a lawyer, without any reasonable expectation refer not only to law but to other considerations
that the lawyer is willing to discuss the possibility of forming such as moral, economic, social and political fac-
a client-lawyer relationship, and is thus not a ‘‘prospective tors, that may be relevant to the client’s situation.
client.’’ Moreover, a person who communicates with a lawyer (P.B. 1978-1997, Rule 2.1.)
for the purpose of disqualifying the lawyer is not a ‘‘prospec- COMMENTARY: Scope of Advice. A client is entitled to
tive client.’’ straightforward advice expressing the lawyer’s honest assess-
It is often necessary for a prospective client to reveal infor- ment. Legal advice often involves unpleasant facts and alter-
mation to the lawyer during an initial consultation prior to the natives that a client may be disinclined to confront. In
decision about formation of a client-lawyer relationship. The presenting advice, a lawyer endeavors to sustain the client’s
lawyer often must learn such information to determine whether morale and may put advice in as acceptable a form as honesty
there is a conflict of interest with an existing client and whether permits. However, a lawyer should not be deterred from giving

38
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 2.3

candid advice by the prospect that the advice will be unpalat- relating to the evaluation is otherwise protected
able to the client. by Rule 1.6.
Advice couched in narrow legal terms may be of little value (P.B. 1978-1997, Rule 2.3.) (Amended June 26, 2006, to
to a client, especially where practical considerations, such take effect Jan. 1, 2007.)
as cost or effects on other people, are predominant. Purely COMMENTARY: Definition. An evaluation may be per-
technical legal advice, therefore, can sometimes be inade- formed at the client’s direction or when impliedly authorized
quate. It is proper for a lawyer to refer to relevant moral and in order to carry out the representation. See Rule 1.2. Such
ethical considerations in giving advice. Although a lawyer is an evaluation may be for the primary purpose of establishing
not a moral advisor as such, moral and ethical considerations information for the benefit of third parties; for example, an
impinge upon most legal questions and may decisively influ- opinion concerning the title of property rendered at the behest
ence how the law will be applied. of a vendor for the information of a prospective purchaser, or
A client may expressly or impliedly ask the lawyer for purely at the behest of a borrower for the information of a prospective
technical advice. When such a request is made by a client lender. In some situations, the evaluation may be required by
experienced in legal matters, the lawyer may accept it at face a government agency; for example, an opinion concerning the
value. When such a request is made by a client inexperienced legality of the securities registered for sale under the securities
in legal matters, however, the lawyer’s responsibility as advisor laws. In other instances, the evaluation may be required by
may include indicating that more may be involved than strictly a third person, such as a purchaser of a business.
legal considerations. A legal evaluation should be distinguished from an investi-
Matters that go beyond strictly legal questions may also be gation of a person with whom the lawyer does not have a
in the domain of another profession. Family matters can client-lawyer relationship. A legal evaluation of a client should
involve problems within the professional competence of psy- also be distinguished from a report by counsel for an insured
chiatry, clinical psychology or social work; business matters to the insured’s carrier on the status of the matter that is the
can involve problems within the competence of the accounting subject of representation, provided the report does not contain
profession or of financial specialists. Where consultation with matter that is detrimental to the client’s relationship with the
a professional in another field is itself something a competent insurance carrier. For example, a lawyer retained by a pur-
lawyer would recommend, the lawyer should make such a chaser to analyze a vendor’s title to property does not have
recommendation. At the same time, a lawyer’s advice at its a client-lawyer relationship with the vendor. So also, an investi-
best often consists of recommending a course of action in the gation into a person’s affairs by a government lawyer, or by
face of conflicting recommendations of experts. special counsel employed by the government, is not an evalua-
Offering Advice. In general, a lawyer is not expected to tion as that term is used in this Rule. The question is whether
give advice until asked by the client. However, when a lawyer the lawyer is retained by the person whose affairs are being
knows that a client proposes a course of action that is likely examined. When the lawyer is retained by that person, the
to result in substantial adverse legal consequences to the general rules concerning loyalty to client and preservation of
client, the lawyer’s duty to the client under Rule 1.4 may require confidences apply, which is not the case if the lawyer is
that the lawyer offer advice if the client’s course of action is retained by someone else. For this reason, it is essential to
related to the representation. Similarly, when a matter is likely identify the person by whom the lawyer is retained. This should
to involve litigation, it may be necessary under Rule 1.4 to be made clear not only to the person under examination, but
inform the client of forms of dispute resolution that might consti- also to others to whom the results are to be made available.
tute reasonable alternatives to litigation. Duties Owed to Third Person and Client. When the evalu-
ation is intended for the information or use of a third person,
A lawyer ordinarily has no duty to initiate investigation of
a legal duty to that person may or may not arise. That legal
a client’s affairs or to give advice that the client has indicated
question is beyond the scope of this Rule. However, since
is unwanted, but a lawyer may initiate advice to a client when
such an evaluation involves a departure from the normal client-
doing so appears to be in the client’s interest.
lawyer relationship, careful analysis of the situation is required.
The lawyer must be satisfied as a matter of professional judg-
Rule 2.2. Intermediary ment that making the evaluation is compatible with other func-
[Repealed as of Jan. 1, 2007.] tions undertaken in behalf of the client. For example, if the
lawyer is acting as advocate in defending the client against
Rule 2.3. Evaluation for Use by Third charges of fraud, it would normally be incompatible with that
Persons responsibility for the lawyer to perform an evaluation for others
concerning the same or a related transaction. Assuming no
(a) A lawyer may provide an evaluation of a such impediment is apparent, however, the lawyer should
matter affecting a client for the use of someone advise the client of the implications of the evaluation, particu-
other than the client if the lawyer reasonably larly the lawyer’s responsibilities to third persons and the duty
believes that making the evaluation is compatible to disseminate the findings.
with other aspects of the lawyer’s relationship with Access to and Disclosure of Information. The quality
of an evaluation depends on the freedom and extent of the
the client. investigation upon which it is based. Ordinarily, a lawyer should
(b) When the lawyer knows or reasonably have whatever latitude of investigation seems necessary as
should know that the evaluation is likely to affect a matter of professional judgment. Under some circumstances,
the client’s interests materially and adversely, the however, the terms of the evaluation may be limited. For exam-
lawyer shall not provide the evaluation unless the ple, certain issues or sources may be categorically excluded,
or the scope of search may be limited by time constraints or
client gives informed consent. the noncooperation of persons having relevant information.
(c) Except as disclosure is authorized in con- Any such limitations that are material to the evaluation should
nection with a report of an evaluation, information be described in the report. If after a lawyer has commenced

39
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 2.3 RULES OF PROFESSIONAL CONDUCT

an evaluation, the client refuses to comply with the terms upon a joint committee of the American Bar Association and the
which it was understood the evaluation was to have been American Arbitration Association or the Model Standards of
made, the lawyer’s obligations are determined by law, having Conduct for Mediators jointly prepared by the American Bar
reference to the terms of the client’s agreement and the sur- Association, the American Arbitration Association and the
rounding circumstances. In no circumstances is the lawyer Society of Professionals in Dispute Resolution.
permitted to knowingly make a false statement of material fact Unlike nonlawyers who serve as third-party neutrals, law-
or law in providing an evaluation under this Rule. See Rule 4.1. yers serving in this role may experience unique problems as
Obtaining Client’s Informed Consent. Information relat- a result of differences between the role of a third-party neutral
ing to an evaluation is protected by Rule 1.6. In many situa- and a lawyer’s service as a client representative. The potential
tions, providing an evaluation to a third party poses no for confusion is significant when the parties are unrepresented
significant risk to the client; thus, the lawyer may be impliedly in the process. Thus, subsection (b) requires a lawyer-neutral
authorized to disclose information to carry out the representa- to inform unrepresented parties that the lawyer is not repre-
tion. See Rule 1.6 (a). Where, however, it is reasonably likely senting them. For some parties, particularly parties who fre-
that providing the evaluation will affect the client’s interests quently use dispute-resolution processes, this information will
materially and adversely, the lawyer must first obtain the cli- be sufficient. For others, particularly those who are using the
ent’s consent after the client has been adequately informed process for the first time, more information will be required.
concerning the important possible effects on the client’s inter- Where appropriate, the lawyer should inform unrepresented
ests. See Rules 1.6 (a) and 1.0 (f). parties of the important differences between the lawyer’s role
Financial Auditors’ Requests for Information. When a as third-party neutral and a lawyer’s role as a client representa-
question concerning the legal situation of a client arises at the tive, including the inapplicability of the attorney-client eviden-
instance of the client’s financial auditor and the question is tiary privilege as well as the inapplicability of the duty of
referred to the lawyer, the lawyer’s response may be made confidentiality. The extent of disclosure required under this
in accordance with procedures recognized in the legal profes- subsection will depend on the particular parties involved and
sion. Such a procedure is set forth in the American Bar Associ- the subject matter of the proceeding, as well as the particular
ation Statement of Policy Regarding Lawyers’ Responses to features of the dispute-resolution process selected.
Auditors’ Requests for Information, adopted in 1975. A lawyer who serves as a third-party neutral subsequently
may be asked to serve as a lawyer representing a client in
Rule 2.4. Lawyer Serving as Third-Party the same matter. The conflicts of interest that arise for both
Neutral the individual lawyer and the lawyer’s law firm are addressed
in Rule 1.12.
(a) A lawyer serves as a third-party neutral
Lawyers who represent clients in alternative dispute-resolu-
when the lawyer assists two or more persons who tion processes are governed by the Rules of Professional
are not clients of the lawyer to reach a resolution of Conduct. When the dispute-resolution process takes place
a dispute or other matter that has arisen between before a tribunal, as in binding arbitration (see Rule 1.0 [n]),
them. Service as a third-party neutral may include the lawyer’s duty of candor is governed by Rule 3.3. Otherwise,
service as an arbitrator, a mediator or in such the lawyer’s duty of candor toward both the third-party neutral
other capacity as will enable the lawyer to assist and other parties is governed by Rule 4.1.
the parties to resolve the matter. ADVOCATE
(b) A lawyer serving as a third-party neutral
shall inform unrepresented parties that the lawyer Rule 3.1. Meritorious Claims and Con-
is not representing them. When the lawyer knows tentions
or reasonably should know that a party does not A lawyer shall not bring or defend a proceeding,
understand the lawyer’s role in the matter, the or assert or controvert an issue therein, unless
lawyer shall explain the difference between the there is a basis in law and fact for doing so that
lawyer’s role as a third-party neutral and a law- is not frivolous, which includes a good faith argu-
yer’s role as one who represents a client. ment for an extension, modification or reversal of
(Adopted June 26, 2006, to take effect Jan. 1, 2007.) existing law. A lawyer for the defendant in a crimi-
COMMENTARY: Alternative dispute resolution has
become a substantial part of the civil justice system. Aside from
nal proceeding, or the respondent in a proceeding
representing clients in dispute-resolution processes, lawyers that could result in incarceration, may neverthe-
often serve as third-party neutrals. A third-party neutral is a less so defend the proceeding as to require that
person, such as a mediator, arbitrator, conciliator or evaluator, every element of the case be established.
who assists the parties, represented or unrepresented, in the (P.B. 1978-1997, Rule 3.1.) (Amended June 26, 2006, to
resolution of a dispute or in the arrangement of a transaction. take effect Jan. 1, 2007.)
Whether a third-party neutral serves primarily as a facilitator, COMMENTARY: The advocate has a duty to use legal
evaluator or decision maker depends on the particular process procedure for the fullest benefit of the client’s cause, but also
that is either selected by the parties or mandated by a court. a duty not to abuse legal procedure. The law, both procedural
The role of a third-party neutral is not unique to lawyers, and substantive, establishes the limits within which an advo-
although, in some court-connected contexts, only lawyers are cate may proceed. However, the law is not always clear and
allowed to serve in this role or to handle certain types of cases. never is static. Accordingly, in determining the proper scope
In performing this role, the lawyer may be subject to court rules of advocacy, account must be taken of the law’s ambiguities
or other law that apply either to third-party neutrals generally or and potential for change.
to lawyers serving as third-party neutrals. Lawyer-neutrals may The filing of an action or defense or similar action taken
also be subject to various codes of ethics, such as the Code for a client is not frivolous merely because the facts have not
of Ethics for Arbitration in Commercial Disputes prepared by first been fully substantiated or because the lawyer expects

40
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 3.3

to develop vital evidence only by discovery. What is required (c) The duties stated in subsections (a) and (b)
of lawyers, however, is that they inform themselves about continue at least to the conclusion of the proceed-
the facts of their clients’ cases and the applicable law and
determine that they can make good faith arguments in support
ing, and apply even if compliance requires disclo-
of their clients’ positions. Such action is not frivolous even sure of information otherwise protected by Rule
though the lawyer believes that the client’s position ultimately 1.6.
will not prevail. The action is frivolous, however, if the lawyer (d) In an ex parte proceeding, a lawyer shall
is unable either to make a good faith argument on the merits inform the tribunal of all material facts known to
of the action taken or to support the action taken by a good the lawyer that will enable the tribunal to make
faith argument for an extension, modification or reversal of an informed decision, whether or not the facts
existing law.
The lawyer’s obligations under this Rule are subordinate
are adverse.
to federal or state constitutional law that entitles a defendant (e) When, prior to judgment, a lawyer becomes
in a criminal matter to the assistance of counsel in presenting aware of discussion or conduct by a juror which
a claim or contention that otherwise would be prohibited by violates the trial court’s instructions to the jury,
this Rule. the lawyer shall promptly report that discussion
or conduct to the trial judge.
Rule 3.2. Expediting Litigation (P.B. 1978-1997, Rule 3.3.)
A lawyer shall make reasonable efforts to expe- COMMENTARY: This Rule governs the conduct of a lawyer
dite litigation consistent with the interests of the who is representing a client in the proceedings of a tribunal.
client. See Rule 1.0 (n) for the definition of ‘‘tribunal.’’ It also applies
when the lawyer is representing a client in an ancillary proceed-
(P.B. 1978-1997, Rule 3.2.)
ing conducted pursuant to the tribunal’s adjudicative authority,
COMMENTARY: Dilatory practices bring the administration such as a deposition. Thus, for example, subsection (a) (3)
of justice into disrepute. Although there will be occasions when requires a lawyer to take reasonable remedial measures if
a lawyer may properly seek a postponement for personal rea- the lawyer comes to know that a client who is testifying in a
sons, it is not proper for a lawyer to routinely fail to expedite deposition has offered evidence that is false.
litigation solely for the convenience of the advocates. Nor will This Rule sets forth the special duties of lawyers as officers
a failure to expedite be reasonable if done for the purpose of of the court to avoid conduct that undermines the integrity of
frustrating an opposing party’s attempt to obtain rightful the adjudicative process. A lawyer acting as an advocate in
redress or repose. It is not a justification that similar conduct an adjudicative proceeding has an obligation to present the
is often tolerated by the bench and bar. The question is whether client’s case with persuasive force. Performance of that duty
a competent lawyer acting in good faith would regard the while maintaining confidences of the client, however, is quali-
course of action as having some substantial purpose other fied by the advocate’s duty of candor to the tribunal. Conse-
than delay. Realizing financial or other benefit from otherwise quently, although a lawyer in an adversary proceeding is not
improper delay in litigation is not a legitimate interest of the required to present an impartial exposition of the law or to
client. vouch for the evidence submitted in a cause, the lawyer must
not allow the tribunal to be misled by false statements of law
Rule 3.3. Candor toward the Tribunal or fact or evidence that the lawyer knows to be false.
(a) A lawyer shall not knowingly: Representations by a Lawyer. An advocate is responsible
(1) Make a false statement of fact or law to a for pleadings and other documents prepared for litigation, but
is usually not required to have personal knowledge of matters
tribunal or fail to correct a false statement of mate- asserted therein, for litigation documents ordinarily present
rial fact or law previously made to the tribunal by assertions by the client, or by someone on the client’s behalf,
the lawyer; and not assertions by the lawyer. Compare Rule 3.1. However,
(2) Fail to disclose to the tribunal legal authority an assertion purporting to be on the lawyer’s own knowledge,
in the controlling jurisdiction known to the lawyer as in an affidavit by the lawyer or in a statement in open
to be directly adverse to the position of the client court, may properly be made only when the lawyer knows the
assertion is true or believes it to be true on the basis of a
and not disclosed by opposing counsel; or reasonably diligent inquiry. There are circumstances where
(3) Offer evidence that the lawyer knows to be failure to make a disclosure is the equivalent of an affirmative
false. If a lawyer, the lawyer’s client, or a witness misrepresentation. The obligation prescribed in Rule 1.2 (d)
called by the lawyer, has offered material evi- not to counsel a client to commit or assist the client in commit-
dence and the lawyer comes to know of its falsity, ting a fraud applies in litigation. Regarding compliance with
Rule 1.2 (d), see the Commentary to that Rule. See also the
the lawyer shall take reasonable remedial mea- Commentary to Rule 8.4 (2).
sures, including, if necessary, disclosure to the Legal Argument. Legal argument based on a knowingly
tribunal. false representation of law constitutes dishonesty toward the
(b) A lawyer who represents a client in an adju- tribunal. A lawyer is not required to make a disinterested expo-
dicative proceeding and who knows that a person sition of the law, but must recognize the existence of pertinent
intends to engage, is engaging or has engaged legal authorities. Furthermore, as stated in subsection (a) (2),
an advocate has a duty to disclose directly adverse authority
in criminal or fraudulent conduct related to the in the controlling jurisdiction that has not been disclosed by
proceeding shall take reasonable remedial mea- the opposing party. The underlying concept is that legal argu-
sures, including, if necessary, disclosure to the ment is a discussion seeking to determine the legal premises
tribunal. properly applicable to the case.

41
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 3.3 RULES OF PROFESSIONAL CONDUCT

Offering Evidence. Subsection (a) (3) requires that the See Rule 1.2 (d). Furthermore, unless it is clearly understood
lawyer refuse to offer evidence that the lawyer knows to be that the lawyer will act upon the duty to disclose the existence
false, regardless of the client’s wishes. This duty is premised of false evidence, the client can simply reject the lawyer’s
on the lawyer’s obligation as an officer of the court to prevent advice to reveal the false evidence and insist that the lawyer
the trier of fact from being misled by false evidence. A lawyer keep silent. Thus, the client could in effect coerce the lawyer
does not violate this Rule if the lawyer offers the evidence for into being a party to fraud on the court.
the purpose of establishing its falsity. Preserving Integrity of Adjudicative Process. Lawyers
If a lawyer knows that the client intends to testify falsely or have a special obligation to protect a tribunal against criminal
wants the lawyer to introduce false evidence, the lawyer should or fraudulent conduct that undermines the integrity of the adju-
seek to persuade the client that the evidence should not be dicative process, such as bribing, intimidating or otherwise
offered. If the persuasion is ineffective and the lawyer contin- unlawfully communicating with a witness, juror, court official
ues to represent the client, the lawyer must refuse to offer the or other participant in the proceeding, unlawfully destroying or
false evidence. If only a portion of a witness’ testimony will concealing documents or other evidence or failing to disclose
be false, the lawyer may call the witness to testify but may information to the tribunal when required by law to do so.
not elicit or otherwise permit the witness to present the testi- Thus, subsection (b) requires a lawyer to take reasonable
mony that the lawyer knows is false. remedial measures, including disclosure if necessary, when-
The duties stated in subsections (a) and (b) apply to all ever the lawyer knows that a person, including the lawyer’s
lawyers, including defense counsel in criminal cases. In some client, intends to engage, is engaging or has engaged in crimi-
jurisdictions, however, courts have required counsel to present nal or fraudulent conduct related to the proceeding. Nothing
the accused as a witness or to give a narrative statement if in Rule 3.3 (e) is meant to limit a lawyer’s obligation to take
the accused so desires, even if counsel knows that the testi- appropriate action after judgment has entered.
mony or statement will be false. The obligation of the advocate Duration of Obligation. A practical time limit on the obliga-
under the Rules of Professional Conduct is subordinate to tion to rectify false evidence or false statements of fact has
such requirements. to be established. The conclusion of the proceeding is a rea-
The prohibition against offering false evidence only applies sonably definite point for the termination of the obligation. In
if the lawyer knows that the evidence is false. A lawyer’s criminal and juvenile delinquency matters, the duty to correct
reasonable belief that evidence is false does not preclude its a newly discovered and material falsehood continues until
presentation to the trier of fact. A lawyer’s knowledge that the defendant or delinquent is discharged from custody or
evidence is false, however, can be inferred from the circum- released from judicial supervision, whichever occurs later. The
stances. See Rule 1.0 (g). Thus, although a lawyer should lawyer shall notify the tribunal that false evidence or false
resolve doubts about the veracity of testimony or other evi- statements of fact were made.
dence in favor of the client, the lawyer cannot ignore an obvi- Ex Parte Proceedings. Ordinarily, an advocate has the
ous falsehood. limited responsibility of presenting one side of the matters that
Because of the special protections historically provided a tribunal should consider in reaching a decision; the conflicting
criminal defendants, however, this Rule does not permit a position is expected to be presented by the opposing party.
lawyer to refuse to offer the testimony of such a client where However, in any ex parte proceeding, such as an application
the lawyer reasonably believes but does not know that the for a temporary restraining order, there is no balance of presen-
testimony will be false. Unless the lawyer knows the testimony tation by opposing advocates. The object of an ex parte pro-
will be false, the lawyer must honor the client’s decision to ceeding is nevertheless to yield a substantially just result. The
testify. judge has an affirmative responsibility to accord the absent
Remedial Measures. Having offered material evidence in party just consideration. The lawyer for the represented party
the belief that it was true, a lawyer may subsequently come has the correlative duty to make disclosures of material facts
to know that the evidence is false. Or, a lawyer may be sur- known to the lawyer and that the lawyer reasonably believes
prised when the lawyer’s client, or another witness called by are necessary to an informed decision.
the lawyer, offers testimony the lawyer knows to be false, Withdrawal. Normally, a lawyer’s compliance with the duty
either during the lawyer’s direct examination or in response of candor imposed by this Rule does not require that the lawyer
to cross-examination by the opposing lawyer. In such situa- withdraw from the representation of a client whose interests
tions or if the lawyer knows of the falsity of testimony elicited will be or have been adversely affected by the lawyer’s disclo-
from the client during a deposition, the lawyer must take rea- sure. The lawyer may, however, be required by Rule 1.16 (a)
sonable remedial measures. In such situations, the advocate’s to seek permission of the tribunal to withdraw if the lawyer’s
proper course is to remonstrate with the client confidentially, compliance with this Rule’s duty of candor results in such an
advise the client of the lawyer’s duty of candor to the tribunal extreme deterioration of the client-lawyer relationship that the
and seek the client’s cooperation with respect to the withdrawal lawyer can no longer competently represent the client. Also
or correction of the false statements or evidence. If that fails, see Rule 1.16 (b) for the circumstances in which a lawyer will
the advocate must take further remedial action. If withdrawal be permitted to seek a tribunal’s permission to withdraw. In
from the representation is not permitted or will not undo the connection with a request for permission to withdraw that is
effect of the false evidence, the advocate must make such premised on a client’s misconduct, a lawyer may reveal infor-
disclosure to the tribunal as is reasonably necessary to remedy mation relating to the representation only to the extent reason-
the situation, even if doing so requires the lawyer to reveal ably necessary to comply with this Rule or as otherwise
information that otherwise would be protected by Rule 1.6. It permitted by Rule 1.6.
is for the tribunal then to determine what should be done.
The disclosure of a client’s false testimony can result in Rule 3.4. Fairness to Opposing Party and
grave consequences to the client, including not only a sense Counsel
of betrayal but also loss of the case and perhaps a prosecution
for perjury. But the alternative is that the lawyer cooperate A lawyer shall not:
in deceiving the court, thereby subverting the truth-finding (1) Unlawfully obstruct another party’s access
process which the adversary system is designed to implement. to evidence or unlawfully alter, destroy or conceal
42
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 3.6

a document or other material having potential evi- terms permitted by law. The common law rule in most jurisdic-
dentiary value. A lawyer shall not counsel or assist tions is that it is improper to pay an occurrence witness any
fee for testifying and that it is improper to pay an expert witness
another person to do any such act; a contingent fee.
(2) Falsify evidence, counsel or assist a witness Subdivision (6) permits a lawyer to advise employees of a
to testify falsely, or offer an inducement to a wit- client to refrain from giving information to another party, for
ness that is prohibited by law; the employees may identify their interests with those of the
(3) Knowingly disobey an obligation under the client. See also Rule 4.2.
rules of a tribunal except for an open refusal based Rule 3.5. Impartiality and Decorum
on an assertion that no valid obligation exists; (Amended June 26, 2006, to take effect Jan. 1, 2007.)
(4) In pretrial procedure, make a frivolous dis- A lawyer shall not:
covery request or fail to make reasonably diligent (1) Seek to influence a judge, juror, prospective
effort to comply with a legally proper discovery juror or other official by means prohibited by law;
request by an opposing party; (2) Communicate ex parte with such a person
(5) In trial, allude to any matter that the lawyer during the proceeding unless authorized to do so
does not reasonably believe is relevant or that will by law or court order;
not be supported by admissible evidence, assert (3) Communicate with a juror or prospective
personal knowledge of facts in issue except when juror after discharge of the jury if:
testifying as a witness, or state a personal opinion (a) the communication is prohibited by law or
as to the justness of a cause, the credibility of a court order;
witness, the culpability of a civil litigant or the guilt (b) the juror has made known to the lawyer a
or innocence of an accused; or desire not to communicate; or
(6) Request a person other than a client to (c) the communication involves misrepresenta-
refrain from voluntarily giving relevant information tion, coercion, duress or harassment; or
to another party unless: (4) Engage in conduct intended to disrupt a
(A) The person is a relative or an employee or tribunal or ancillary proceedings such as deposi-
other agent of a client; and tions and mediations.
(B) The lawyer reasonably believes that the per- (P.B. 1978-1997, Rule 3.5.) (Amended June 26, 2006, to
son’s interests will not be adversely affected by take effect Jan. 1, 2007; amended June 29, 2007, to take
effect Jan. 1, 2008.)
refraining from giving such information. COMMENTARY: Many forms of improper influence upon
(7) Present, participate in presenting, or a tribunal are proscribed by criminal law. Others are specified
threaten to present criminal charges solely to in the ABA Model Code of Judicial Conduct, with which an
obtain an advantage in a civil matter. advocate should be familiar. A lawyer is required to avoid
(P.B. 1978-1997, Rule 3.4.) contributing to a violation of such provisions.
COMMENTARY: The procedure of the adversary system During a proceeding a lawyer may not communicate ex
contemplates that the evidence in a case is to be marshaled parte with persons serving in an official capacity in the proceed-
competitively by the contending parties. Fair competition in ing, such as judges, masters or jurors, unless authorized to
the adversary system is secured by prohibitions against do so by law or court order.
destruction or concealment of evidence, improperly influencing A lawyer may on occasion want to communicate with a
witnesses, obstructive tactics in discovery procedure, and juror or prospective juror after the jury has been discharged.
The lawyer may do so unless the communication is prohibited
the like.
by law or a court order but must respect the desire of the juror
Documents and other items of evidence are often essential
not to talk with the lawyer. The lawyer may not engage in
to establish a claim or defense. Subject to evidentiary privi-
improper conduct during the communication.
leges, the right of an opposing party, including the government, The advocate’s function is to present evidence and argu-
to obtain evidence through discovery or subpoena is an ment so that the cause may be decided according to law.
important procedural right. The exercise of that right can be Refraining from abusive or obstreperous conduct is a corollary
frustrated if relevant material is altered, concealed or of the advocate’s right to speak on behalf of litigants. A lawyer
destroyed. Applicable law in many jurisdictions makes it an may stand firm against abuse by a judge but should avoid
offense to destroy material for the purpose of impairing its reciprocation; the judge’s default is no justification for similar
availability in a pending proceeding or one whose commence- dereliction by an advocate. An advocate can present the
ment can be foreseen. Falsifying evidence is also generally a cause, protect the record for subsequent review and preserve
criminal offense. Subdivision (1) applies to evidentiary material professional integrity by patient firmness no less effectively
generally, including computerized information. Applicable law than by belligerence or theatrics.
may permit a lawyer to take temporary possession of physical
evidence of client crimes for the purpose of conducting a Rule 3.6. Trial Publicity
limited examination that will not alter or destroy material char-
acteristics of the evidence. In such a case, applicable law may
(a) A lawyer who is participating or has partici-
require the lawyer to turn the evidence over to the police or pated in the investigation or litigation of a matter
other prosecuting authority, depending on the circumstances. shall not make an extrajudicial statement that the
With regard to subdivision (2), it is not improper to pay a lawyer knows or reasonably should know will be
witness’ expenses or to compensate an expert witness on disseminated by means of public communication
43
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 3.6 RULES OF PROFESSIONAL CONDUCT

and will have a substantial likelihood of materially (i) identity, residence, occupation and family status of the
prejudicing an adjudicative proceeding in the accused;
(ii) if the accused has not been apprehended, information
matter. necessary to aid in apprehension of that person;
(b) Notwithstanding subsection (a), a lawyer (iii) the fact, time and place of arrest; and
may make a statement that a reasonable lawyer (iv) the identity of investigating and arresting officers or
would believe is required to protect a client from agencies and the length of the investigation.
the substantial undue prejudicial effect of recent (5) There are, on the other hand, certain subjects which
publicity not initiated by the lawyer or the lawyer’s are more likely than not to have a material prejudicial effect
client. A statement made pursuant to this subsec- on a proceeding, particularly when they refer to a civil matter
triable to a jury, a criminal matter, or any other proceeding
tion shall be limited to such information as is nec- that could result in incarceration. These subjects relate to:
essary to mitigate the recent adverse publicity. (a) the character, credibility, reputation or criminal record
(c) No lawyer associated in a firm or govern- of a party, suspect in a criminal investigation or witness, or
ment agency with a lawyer subject to subsection the identity of a witness, or the expected testimony of a party
(a) shall make a statement prohibited by subsec- or witness;
tion (a). (b) in a criminal case or proceeding that could result in
(P.B. 1978-1997, Rule 3.6.) (Amended June 24, 2002, to incarceration, the possibility of a plea of guilty to the offense
take effect Jan. 1, 2003; amended June 26, 2006, to take or the existence or contents of any confession, admission, or
effect Jan. 1, 2007.) statement given by a defendant or suspect or that person’s
COMMENTARY: (1) It is difficult to strike a balance between refusal or failure to make a statement;
protecting the right to a fair trial and safeguarding the right of (c) the performance or results of any examination or test
free expression. Preserving the right to a fair trial necessarily or the refusal or failure of a person to submit to an examination
entails some curtailment of the information that may be dis- or test, or the identity or nature of physical evidence expected
seminated about a party prior to trial, particularly where trial to be presented;
by jury is involved. If there were no such limits, the result (d) any opinion as to the guilt or innocence of a defendant
would be the practical nullification of the protective effect of or suspect in a criminal case or proceeding that could result
the rules of forensic decorum and the exclusionary rules of in incarceration;
evidence. On the other hand, there are vital social interests (e) information that the lawyer knows or reasonably should
served by the free dissemination of information about events know is likely to be inadmissible as evidence in a trial and
having legal consequences and about legal proceedings them- that would, if disclosed, create a substantial risk of prejudicing
selves. The public has a right to know about threats to its an impartial trial; or
safety and measures aimed at assuring its security. It also (f) the fact that a defendant has been charged with a crime,
has a legitimate interest in the conduct of judicial proceedings, unless there is included therein a statement explaining that
particularly in matters of general public concern. Furthermore, the charge is merely an accusation and that the defendant is
the subject matter of legal proceedings is often of direct signifi- presumed innocent until and unless proven guilty.
cance in debate and deliberations over questions of public (6) Another relevant factor in determining prejudice is the
policy. nature of the proceeding involved. Criminal jury trials will be
(2) Special rules of confidentiality may validly govern pro- most sensitive to extrajudicial speech. Civil trials may be less
ceedings in juvenile, domestic relations and mental disability sensitive. Nonjury hearings and arbitration proceedings may
proceedings, and perhaps other types of litigation. Rule 3.4 be even less affected. The Rule will still place limitations on
(3) requires compliance with such Rules. prejudical comments in these cases, but the likelihood of preju-
(3) The Rule sets forth a basic general prohibition against dice may be different depending on the type of proceeding.
a lawyer making statements that the lawyer knows or should (7) Finally, extrajudicial statements that might otherwise
know will have a substantial likelihood of materially prejudicing raise a question under this Rule may be permissible when
an adjudicative proceeding. Recognizing that the public value they are made in response to statements made publicly by
of informed commentary is great and the likelihood of prejudice another party, another party’s lawyer, or third persons, where
to a proceeding by the commentary of a lawyer who is not a reasonable lawyer would believe a public response is
involved in the proceeding is small, the Rule applies only to required in order to avoid prejudice to the lawyer’s client. When
lawyers who are, or who have been involved in the investiga- prejudicial statements have been publicly made by others,
tion or litigation of a case, and their associates. responsive statements may have the salutary effect of less-
(4) Certain subjects would not ordinarily be considered to ening any resulting adverse impact on the adjudicative pro-
present a substantial likelihood of material prejudice, such as: ceeding. Such responsive statements should be limited to
(a) the claim, offense or defense involved and, except when contain only such information as is necessary to mitigate
prohibited by law, the identity of the persons involved; undue prejudice created by the statements made by others.
(b) information contained in a public record; (8) See Rule 3.8 (5) for additional duties of prosecutors in
(c) that an investigation of the matter is in progress; connection with extrajudicial statements about criminal pro-
(d) the scheduling or result of any step in litigation; ceedings.
(e) a request for assistance in obtaining evidence and infor-
mation necessary thereto; Rule 3.7. Lawyer as Witness
(f) a warning of danger concerning the behavior of a person (a) A lawyer shall not act as advocate at a trial
involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public
in which the lawyer is likely to be a necessary
interest; and witness unless:
(g) in a criminal case: in addition to subparagraphs (a) (1) The testimony relates to an uncontested
through (f): issue;
44
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 3.8

(2) The testimony relates to the nature and witness because the lawyer’s disqualification would work a
value of legal services rendered in the case; or substantial hardship on the client. Similarly, a lawyer who
might be permitted to simultaneously serve as an advocate
(3) Disqualification of the lawyer would work and a witness by subsection (a) (3) might be precluded from
substantial hardship on the client. doing so by Rule 1.9. The problem can arise whether the
(b) A lawyer may act as advocate in a trial in lawyer is called as a witness on behalf of the client or is called
which another lawyer in the lawyer’s firm is likely by the opposing party. Determining whether or not such a
to be called as a witness unless precluded from conflict exists is primarily the responsibility of the lawyer
doing so by Rule 1.7 or Rule 1.9. involved. If there is a conflict of interest, the lawyer must secure
(P.B. 1978-1997, Rule 3.7.) (Amended June 26, 2006, to the client’s informed consent, confirmed in writing. In some
take effect Jan. 1, 2007.) cases, the lawyer will be precluded from seeking the client’s
consent. See Rule 1.7. See Rule 1.0 (c) for the definition of
COMMENTARY: Combining the roles of advocate and wit-
‘‘confirmed in writing’’ and Rule 1.0 (f) for the definition of
ness can prejudice the tribunal and the opposing party and can
also involve a conflict of interest between the lawyer and client. ‘‘informed consent.’’
Advocate-Witness Rule. The tribunal has proper objection Subsection (b) provides that a lawyer is not disqualified
when the trier of fact may be confused or misled by a lawyer from serving as an advocate because a lawyer with whom the
serving as both advocate and witness. The opposing party has lawyer is associated in a firm is precluded from doing so by
proper objection where the combination of roles may prejudice subsection (a). If, however, the testifying lawyer would also
that party’s rights in the litigation. A witness is required to be disqualified by Rule 1.7 or Rule 1.9 from representing the
testify on the basis of personal knowledge, while an advocate client in the matter, other lawyers in the firm will be precluded
is expected to explain and comment on evidence given by from representing the client by Rule 1.10 unless the client
others. It may not be clear whether a statement by an advo- gives informed consent under the conditions stated in Rule 1.7.
cate-witness should be taken as proof or as an analysis of
the proof. Rule 3.8. Special Responsibilities of a Pros-
To protect the tribunal, subsection (a) prohibits a lawyer ecutor
from simultaneously serving as advocate and necessary wit- The prosecutor in a criminal case shall:
ness except in those circumstances specified in subsections (1) Refrain from prosecuting a charge that the
(a) (1) through (a) (3). Subsection (a) (1) recognizes that if
the testimony will be uncontested, the ambiguities in the dual prosecutor knows is not supported by probable
role are purely theoretical. Subsection (a) (2) recognizes that cause;
where the testimony concerns the extent and value of legal (2) Make reasonable efforts to assure that the
services rendered in the action in which the testimony is accused has been advised of the right to, and the
offered, permitting the lawyers to testify avoids the need for procedure for obtaining, counsel and has been
a second trial with new counsel to resolve that issue. Moreover,
in such a situation the judge has firsthand knowledge of the
given reasonable opportunity to obtain counsel;
matter in issue; hence, there is less dependence on the adver- (3) Not seek to obtain from an unrepresented
sary process to test the credibility of the testimony. accused a waiver of important pretrial rights, such
Apart from these two exceptions, subsection (a) (3) recog- as the right to a preliminary hearing;
nizes that a balancing is required between the interests of the (4) Make timely disclosure to the defense of all
client and those of the tribunal and the opposing party. Whether evidence or information known to the prosecutor
the tribunal is likely to be misled or the opposing party is likely
to suffer prejudice depends on the nature of the case, the
that tends to negate the guilt of the accused or
importance and probable tenor of the lawyer’s testimony, and mitigates the offense, and, in connection with sen-
the probability that the lawyer’s testimony will conflict with that tencing, disclose to the defense and to the tribunal
of other witnesses. Even if there is risk of such prejudice, in all unprivileged mitigating information known to
determining whether the lawyer should be disqualified, due the prosecutor, except when the prosecutor is
regard must be given to the effect of disqualification on the relieved of this responsibility by a protective order
lawyer’s client. It is relevant that one or both parties could
reasonably foresee that the lawyer would probably be a wit-
of the tribunal; and
ness. The conflict of interest principles stated in Rules 1.7, (5) Exercise reasonable care to prevent investi-
1.9 and 1.10 have no application to this aspect of the problem. gators, law enforcement personnel, employees
Because the tribunal is not likely to be misled when a lawyer or other persons assisting or associated with the
acts as advocate in a trial in which another lawyer in the prosecutor in a criminal case from making an
lawyer’s firm will testify as a necessary witness, subsection extrajudicial statement that the prosecutor would
(b) permits the lawyer to do so except in situations involving
a conflict of interest.
be prohibited from making under Rule 3.6.
Conflict of Interest. In determining if it is permissible to (6) When a prosecutor knows of new and credi-
act as advocate in a trial in which the lawyer will be a necessary ble evidence creating a reasonable probability
witness, the lawyer must also consider that the dual role may that a convicted defendant did not commit an
give rise to a conflict of interest that will require compliance offense of which the defendant was convicted, the
with Rules 1.7 or 1.9. For example, if there is likely to be prosecutor shall, unless a court authorizes delay:
substantial conflict between the testimony of the client and
that of the lawyer, the representation involves a conflict of
(A) if the conviction was obtained outside the
interest that requires compliance with Rule 1.7. This would prosecutor’s jurisdiction, promptly disclose that
be true even though the lawyer might not be prohibited by evidence to a court and an appropriate author-
subsection (a) from simultaneously serving as advocate and ity, and
45
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 3.8 RULES OF PROFESSIONAL CONDUCT

(B) if the conviction was obtained in the prose- Washington, 466 U.S. 668, 694, 105 S. Ct. 2052, 80 L. Ed.
cutor’s jurisdiction, promptly disclose that evi- 2d 674 (1984). The decision by a prosecutor to disclose infor-
mation to a defendant or an appropriate authority shall not be
dence to the defendant, and a court and an deemed a concession that, and shall not ethically foreclose the
appropriate authority. prosecutor from contesting before a factfinder or an appellate
(P.B. 1978-1997, Rule 3.8.) (Amended June 13, 2014, to tribunal that, the evidence is new or credible or that it creates
take effect Jan. 1, 2015.) a reasonable probability that the defendant did not commit
COMMENTARY: A prosecutor has the responsibility of a the offense.
minister of justice and not simply that of an advocate. This A prosecutor’s independent judgment, made in good faith,
responsibility carries with it specific obligations to see that that the new evidence is not of such nature as to trigger the
the defendant is accorded procedural justice and that guilt is obligations of subdivision (6), though subsequently determined
decided upon the basis of sufficient evidence. Precisely how to have been erroneous, does not constitute a violation of
far the prosecutor is required to go in this direction is a matter of
this Rule.
debate and varies in different jurisdictions. Many jurisdictions
have adopted the ABA Standards of Criminal Justice Relating
to the Prosecution Function, which in turn are the product of
Rule 3.9. Advocate in Nonadjudicative Pro-
prolonged and careful deliberation by lawyers experienced in ceedings
both criminal prosecution and defense. See also Rule 3.3 A lawyer representing a client before a legisla-
(d), governing ex parte proceedings, among which grand jury tive body or administrative agency in a nonadjudi-
proceedings are included. Applicable law may require other
measures by the prosecutor and knowing disregard of those
cative proceeding shall disclose that the
obligations or a systematic abuse of prosecutorial discretion appearance is in a representative capacity and
could constitute a violation of Rule 8.4. shall conform to the provisions of Rules 3.3 (a)
Subdivision (3) does not apply to an accused appearing as through (c), 3.4 (1) through (3), and 3.5.
a self-represented party with the approval of the tribunal. Nor (P.B. 1978-1997, Rule 3.9.) (Amended June 26, 2006, to
does it forbid the lawful questioning of a suspect who has take effect Jan. 1, 2007.)
knowingly waived the rights to counsel and silence. COMMENTARY: In representation before bodies such as
The exception in subdivision (4) recognizes that a prosecu- legislatures, municipal councils, and executive and administra-
tor may seek an appropriate protective order from the tribunal tive agencies acting in a rule-making or policy-making capac-
if disclosure of information to the defense could result in sub- ity, lawyers present facts, formulate issues and advance
stantial harm to an individual or to the public interest. argument in the matters under consideration. The decision-
When a prosecutor knows of new and credible evidence making body, like a court, should be able to rely on the integrity
creating a reasonable probability that a person outside the of the submissions made to it. A lawyer appearing before
prosecutor’s jurisdiction was convicted of a crime that the such a body must deal with it honestly and in conformity with
person did not commit, subdivision (6) requires prompt disclo- applicable rules of procedure. See Rules 3.3 (a) through (c),
sure to a court and other appropriate authority, such as the 3.4 (a) through (c) and 3.5.
Office of the Chief Public Defender, the office of the Federal Lawyers have no exclusive right to appear before nonadju-
Defender or the chief prosecutor of the jurisdiction where the dicative bodies, as they do before a court. The requirements
conviction occurred. When disclosure is made to the chief of this Rule therefore may subject lawyers to regulations inap-
prosecutor of the jurisdiction, that prosecutor must then inde- plicable to advocates who are not lawyers. However, legisla-
pendently evaluate his or her own ethical obligations under tures and administrative agencies have a right to expect
this Rule with respect to the evidence. If the conviction was lawyers to deal with them as they deal with courts.
obtained in the prosecutor’s jurisdiction, subdivision (6) This Rule only applies when a lawyer represents a client
requires the prosecutor to promptly disclose the evidence to in connection with an official hearing or meeting of a govern-
the defendant and a court and other appropriate authority, mental agency or a legislative body to which the lawyer or the
such as the Office of the Chief Public Defender or the office lawyer’s client is presenting evidence or argument. It does not
of the Federal Defender. Disclosure to a court shall be by apply to representation of a client in a negotiation or other
written notice to the presiding judge of the jurisdiction in which
bilateral transaction with a governmental agency or in connec-
the conviction was obtained, or, where the conviction was in
tion with an application for a license or other privilege or the
federal court, to the chief United States District Court Judge.
client’s compliance with generally applicable reporting require-
Consistent with the objectives of Rules 4.2 and 4.3, disclosure
ments, such as the filing of income tax returns. Nor does it
to a represented defendant must be made through the defend-
apply to the representation of a client in connection with an
ant’s counsel. If a defendant is not represented, or if the prose-
investigation or examination of the client’s affairs conducted
cutor cannot determine if a defendant is represented,
disclosure to the Office of the Chief Public Defender or the by government investigators or examiners. Representation in
Office of the Federal Defender shall satisfy the requirement such matters is governed by Rules 4.1 through 4.4.
of notice to the defendant. The prosecutor may seek to delay
disclosure by means of a protective order or other appropriate TRANSACTIONS WITH PERSONS
measure to protect the safety of a witness, to secure the OTHER THAN CLIENTS
integrity of an on-going investigation, or other similar purpose.
Knowledge denotes the actual knowledge of the prosecutor Rule 4.1. Truthfulness in Statements to
who is determining the scope of his or her own ethical duty Others
to act. A ‘‘reasonable probability that the defendant did not In the course of representing a client a lawyer
commit an offense of which the defendant was convicted’’ is
‘‘a probability sufficient to undermine confidence in the out- shall not knowingly:
come,’’ as articulated in Brady v. Maryland, 373 U.S. 83, 87, (1) Make a false statement of material fact or
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Strickland v. law to a third person; or
46
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 4.3

(2) Fail to disclose a material fact when disclo- been filed or will be filed, that lawyer may directly
sure is necessary to avoid assisting a criminal or communicate with the party only about matters
fraudulent act by a client, unless disclosure is outside the scope of the limited appearance with-
prohibited by Rule 1.6. out consulting with the party’s limited appear-
(P.B. 1978-1997, Rule 4.1.) (Amended June 26, 2006, to ance lawyer.
take effect Jan. 1, 2007.) (P.B. 1978-1997, Rule 4.2.) (Amended June 14, 2013, to
COMMENTARY: Misrepresentation. A lawyer is required take effect Oct. 1, 2013.)
to be truthful when dealing with others on a client’s behalf, COMMENTARY: This Rule does not prohibit communica-
but generally has no affirmative duty to inform an opposing
tion with a party, or an employee or agent of a party, concerning
party of relevant facts. A misrepresentation can occur if the
matters outside the representation. For example, the existence
lawyer incorporates or affirms a statement of another person
of a controversy between a government agency and a private
that the lawyer knows is false. Misrepresentations can also
party, or between two organizations, does not prohibit a lawyer
occur by partially true but misleading statements or omissions
for either from communicating with nonlawyer representatives
that are the equivalent of affirmative false statements. For
dishonest conduct that does not amount to a false statement of the other regarding a separate matter. Also, parties to a
or for misrepresentations by a lawyer other than in the course matter may communicate directly with each other and a lawyer
of representing a client, see Rule 8.4. having independent justification for communicating with the
Statements of Fact. This Rule refers to statements of fact. other party is permitted to do so. Communications authorized
Whether a particular statement should be regarded as one by law include, for example, the right of a party to a controversy
of fact can depend on the circumstances. Under generally with a government agency to speak with government officials
accepted conventions in negotiation, certain types of state- about the matter.
ments ordinarily are not taken as statements of material fact. In the case of an organization, this Rule prohibits communi-
Estimates of price or value placed on the subject of a transac- cations by a lawyer for one party concerning the matter in
tion and a party’s intentions as to an acceptable settlement representation with persons having a managerial responsibility
of a claim are ordinarily in this category, and so is the existence on behalf of the organization, and with any other person whose
of an undisclosed principal except where nondisclosure of the act or omission in connection with that matter may be imputed
principal would constitute fraud. Lawyers should be mindful to the organization for purposes of civil or criminal liability or
of their obligations under applicable law to avoid criminal and whose statement may constitute an admission on the part of
tortious misrepresentation. the organization. If an agent or employee of the organization
Crime or Fraud by Client. Under Rule 1.2 (d), a lawyer is represented in the matter by his or her own counsel, the
is prohibited from counseling or assisting a client in conduct consent by that counsel to a communication will be sufficient
that the lawyer knows is criminal or fraudulent. Subdivision for purposes of this Rule. (Compare Rule 3.4).
(2) states a specific application of the principle set forth in This Rule also covers any person, whether or not a party
Rule 1.2 (d) and addresses the situation where a client’s crime to a formal proceeding, who is represented by counsel con-
or fraud takes the form of a lie or misrepresentation. Ordinarily, cerning the matter in question.
a lawyer can avoid assisting a client’s crime or fraud by with-
drawing from the representation. Sometimes it may be neces- Rule 4.3. Dealing with Unrepresented
sary for the lawyer to give notice of the fact of withdrawal and Person
to disaffirm an opinion, document, affirmation or the like. In
extreme cases, substantive law may require a lawyer to dis- In dealing on behalf of a client with a person
close information relating to the representation to avoid being who is not represented by counsel, in whole or in
deemed to have assisted the client’s crime or fraud. If the part, a lawyer shall not state or imply that the
lawyer can avoid assisting a client’s crime or fraud only by lawyer is disinterested. When the lawyer knows
disclosing this information, then under subdivision (2) the law-
yer is required to do so, unless the disclosure is prohibited by or reasonably should know that the unrepresented
Rule 1.6. person misunderstands the lawyer’s role in the
matter, the lawyer shall make reasonable efforts
Rule 4.2. Communication with Person Rep- to correct the misunderstanding. The lawyer shall
resented by Counsel not give legal advice to an unrepresented person,
In representing a client, a lawyer shall not com- other than the advice to secure counsel, if the
municate about the subject of the representation lawyer knows or reasonably should know that the
with a party the lawyer knows to be represented interests of such a person are or have a reason-
by another lawyer in the matter, unless the lawyer able possibility of being in conflict with the inter-
has the consent of the other lawyer or is author- ests of the client.
ized by law to do so. An otherwise unrepresented (P.B. 1978-1997, Rule 4.3.) (Amended June 26, 2006, to
party for whom a limited appearance has been take effect Jan. 1, 2007; amended June 14, 2013, to take
filed pursuant to Practice Book Section 3-8 (b) is effect Oct. 1, 2013.)
considered to be unrepresented for purposes of COMMENTARY: An unrepresented person, particularly
one not experienced in dealing with legal matters, might
this Rule as to anything other than the subject
assume that a lawyer is disinterested in loyalties or is a disinter-
matter of the limited appearance. When a limited ested authority on the law even when the lawyer represents
appearance has been filed for the party, and a client. In order to avoid a misunderstanding, a lawyer will
served on the other lawyer, or the other lawyer is typically need to identify the lawyer’s client and, where neces-
otherwise notified that a limited appearance has sary, explain that the client has interests opposed to those of

47
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 4.3 RULES OF PROFESSIONAL CONDUCT

the unrepresented person. For misunderstandings that some- the privilege status of a document or electronically stored
times arise when a lawyer for an organization deals with an information has been waived. Similarly, this Rule does not
unrepresented constituent, see Rule 1.13 (d). address the legal duties of a lawyer who receives a document
The Rule distinguishes between situations involving unrep- or electronically stored information that the lawyer knows or
resented persons whose interests may be adverse to those reasonably should know may have been inappropriately
of the lawyer’s client and those in which the person’s interests obtained by the sending person. For purposes of this Rule,
are not in conflict with the client’s. In the former situation, the ‘‘document or electronically stored information’’ includes, in
possibility that the lawyer will compromise the unrepresented addition to paper documents, e-mail and other forms of elec-
person’s interests is so great that the Rule prohibits the giving tronically stored information, including embedded data (com-
of any advice, apart from the advice to obtain counsel. Whether monly referred to as ‘‘metadata’’), that is subject to being read
a lawyer is giving impermissible advice may depend on the or put into readable form. Metadata in electronic documents
experience and sophistication of the unrepresented person, creates an obligation under this Rule only if the receiving
as well as the setting in which the behavior and comments lawyer knows or reasonably should know that the metadata
occur. This Rule does not prohibit a lawyer from negotiating was inadvertently sent to the receiving lawyer.
the terms of a transaction or settling a dispute with an unrepre- Some lawyers may choose to return a document or delete
sented person. So long as the lawyer has explained that the electronically stored information unread, for example, when
lawyer represents an adverse party and is not representing the lawyer learns before receiving it that it was inadvertently
the person, the lawyer may inform the person of the terms on sent. Where a lawyer is not required by applicable law to do
which the lawyer’s client will enter into an agreement or settle a so, the decision to voluntarily return such a document or delete
matter, prepare documents that require the person’s signature electronically stored information is a matter of professional
and explain the lawyer’s own view of the meaning of the docu- judgment ordinarily reserved to the lawyer. See Rules 1.2
ment or the lawyer’s view of the underlying legal obligations. and 1.4.
See Rule 3.8 for particular duties of prosecutors in dealing
with unrepresented persons. LAW FIRMS AND ASSOCIATIONS
Rule 4.4. Respect for Rights of Third Rule 5.1. Responsibilities of Partners, Man-
Persons agers, and Supervisory Lawyers
(a) In representing a client, a lawyer shall not (Amended June 26, 2006, to take effect Jan. 1, 2007.)
use means that have no substantial purpose other (a) A partner in a law firm, and a lawyer who
than to embarrass, delay, or burden a third per- individually or together with other lawyers pos-
son, or use methods of obtaining evidence that sesses comparable managerial authority in a law
violate the legal rights of such a person. firm, shall make reasonable efforts to ensure that
(b) A lawyer who receives a document or elec- the firm has in effect measures giving reasonable
tronically stored information relating to the repre- assurance that all lawyers in the firm conform to
sentation of the lawyer’s client and knows or the Rules of Professional Conduct.
reasonably should know that the document or (b) A lawyer having direct supervisory authority
electronically stored information was inadver- over another lawyer shall make reasonable efforts
tently sent shall promptly notify the sender. to ensure that the other lawyer conforms to the
(P.B. 1978-1997, Rule 4.4.) (Amended June 26, 2006, to Rules of Professional Conduct.
take effect Jan. 1, 2007; amended June 14, 2013, to take (c) A lawyer shall be responsible for another
effect Jan. 1, 2014.) lawyer’s violation of the Rules of Professional
COMMENTARY: Responsibility to a client requires a lawyer Conduct if:
to subordinate the interests of others to those of the client,
but that responsibility does not imply that a lawyer may disre- (1) The lawyer orders or, with knowledge of the
gard the rights of third persons. It is impractical to catalogue specific conduct, ratifies the conduct involved; or
all such rights, but they include legal restrictions on methods (2) The lawyer is a partner or has comparable
of obtaining evidence from third persons and unwarranted managerial authority in the law firm in which the
intrusions into privileged relationships, such as the client-law- other lawyer practices, or has direct supervisory
yer relationship.
authority over the other lawyer, and knows of the
Subsection (b) recognizes that lawyers sometimes receive
a document or electronically stored information that was mis- conduct at a time when its consequences can be
takenly sent or produced by opposing parties or their lawyers. avoided or mitigated but fails to take reasonable
A document or electronically stored information is inadvertently remedial action.
sent when it is accidentally transmitted, such as when an (P.B. 1978-1997, Rule 5.1.) (Amended June 26, 2006, to
e-mail or letter is misaddressed or a document or electronically take effect Jan. 1, 2007.)
stored information is accidentally included with information that COMMENTARY: Subsection (a) applies to lawyers who
was intentionally transmitted. If a lawyer knows or reasonably have managerial authority over the professional work of a firm.
should know that such a document or electronically stored See Rule 1.0 (d). This includes members of a partnership,
information was sent inadvertently, then this Rule requires the the shareholders in a law firm organized as a professional
lawyer to promptly notify the sender in order to permit that corporation, and members of other associations authorized to
person to take protective measures. Whether the lawyer is practice law; lawyers having comparable managerial authority
required to take additional steps, such as returning the docu- in a legal services organization or a law department of an
ment or electronically stored information, is a matter of law enterprise or government agency; and lawyers who have inter-
beyond the scope of these Rules, as is the question of whether mediate managerial responsibilities in a firm. Subsection (b)

48
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 5.3

applies to lawyers who have supervisory authority over the Rule 5.2. Responsibilities of a Subordinate
work of other lawyers in a firm. Lawyer
Subsection (a) requires lawyers with managerial authority
within a firm to make reasonable efforts to establish internal A lawyer is bound by the Rules of Professional
policies and procedures designed to provide reasonable Conduct notwithstanding that that lawyer acted at
assurance that all lawyers in the firm will conform to the Rules the direction of another person.
of Professional Conduct. Such policies and procedures include (P.B. 1978-1997, Rule 5.2.) (Amended June 26, 2006, to
those designed to detect and resolve conflicts of interest, iden- take effect Jan. 1, 2007.)
tify dates by which actions must be taken in pending matters, COMMENTARY: Although a lawyer is not relieved of
account for client funds and property and ensure that inexperi- responsibility for a violation by the fact that the lawyer acted
enced lawyers are properly supervised. at the direction of a supervisor, that fact may be relevant in
determining whether a lawyer had the knowledge required to
Other measures that may be required to fulfill the responsi-
render conduct a violation of the Rules. For example, if a
bility prescribed in subsection (a) can depend on the firm’s
subordinate filed a frivolous pleading at the direction of a
structure and the nature of its practice. In a small firm of
supervisor, the subordinate would not be guilty of a profes-
experienced lawyers, informal supervision and periodic review sional violation unless the subordinate knew of the document’s
of compliance with the required systems ordinarily will suffice. frivolous character.
In a large firm, or in practice situations in which difficult ethical When lawyers in a supervisor-subordinate relationship
problems frequently arise, more elaborate measures may be encounter a matter involving professional judgment as to ethi-
necessary. Some firms, for example, have a procedure cal duty, the supervisor may assume responsibility for making
whereby junior lawyers can make confidential referral of ethical the judgment. Otherwise a consistent course of action or posi-
problems directly to a designated senior partner or special tion could not be taken. If the question can reasonably be
committee. See Rule 5.2. Firms, whether large or small, may answered only one way, the duty of both lawyers is clear and
also rely on continuing legal education in professional ethics. they are equally responsible for fulfilling it. However, if the
In any event, the ethical atmosphere of a firm can influence question is reasonably arguable, someone has to decide upon
the conduct of all its members and the partners may not the course of action. That authority ordinarily reposes in the
assume that all lawyers associated with the firm will inevitably supervisor, and a subordinate may be guided accordingly. For
conform to the Rules. example, if a question arises whether the interests of two
Subsection (c) expresses a general principle of personal clients conflict under Rule 1.7, the supervisor’s reasonable
responsibility for acts of another. See also Rule 8.4 (1). resolution of the question should protect the subordinate pro-
Subsection (c) (2) defines the duty of a partner or other fessionally if the resolution is subsequently challenged.
lawyer having comparable managerial authority in a law firm,
as well as a lawyer who has direct supervisory authority over
Rule 5.3. Responsibilities regarding Non-
performance of specific legal work by another lawyer. Whether lawyer Assistance
a lawyer has supervisory authority in particular circumstances (Amended June 13, 2014, to take effect Jan. 1, 2015.)
is a question of fact. Partners and lawyers with comparable With respect to a nonlawyer employed or
authority have at least indirect responsibility for all work being retained by or associated with a lawyer:
done by the firm, while a partner or manager in charge of a
(1) A partner, and a lawyer who individually or
particular matter ordinarily also has supervisory responsibility
for the work of other firm lawyers engaged in the matter.
together with other lawyers possesses compara-
Appropriate remedial action by a partner or managing lawyer ble managerial authority in a law firm shall make
would depend on the immediacy of that lawyer’s involvement reasonable efforts to ensure that the firm has in
and the seriousness of the misconduct. A supervisor is effect measures giving reasonable assurance that
required to intervene to prevent avoidable consequences of the person’s conduct is compatible with the pro-
misconduct if the supervisor knows that the misconduct fessional obligations of the lawyer;
occurred. Thus, if a supervising lawyer knows that a subordi- (2) A lawyer having direct supervisory authority
nate misrepresented a matter to an opposing party in negotia-
tion, the supervisor as well as the subordinate has a duty to
over the nonlawyer shall make reasonable efforts
correct the resulting misapprehension. to ensure that the person’s conduct is compatible
Professional misconduct by a lawyer under supervision with the professional obligations of the lawyer; and
could reveal a violation of subsection (b) on the part of the (3) A lawyer shall be responsible for conduct
supervisory lawyer even though it does not entail a violation of such a person that would be a violation of the
of subsection (c) because there was no direction, ratification Rules of Professional Conduct if engaged in by a
or knowledge of the violation. lawyer if:
Apart from this Rule and Rule 8.4 (1), a lawyer does not (A) The lawyer orders or, with the knowledge
have disciplinary liability for the conduct of a partner, associate of the specific conduct, ratifies the conduct
or subordinate. Whether a lawyer may be liable civilly or crimi-
involved; or
nally for another lawyer’s conduct is a question of law beyond
the scope of these Rules. (B) The lawyer is a partner or has comparable
The duties imposed by this Rule on managing and supervis- managerial authority in the law firm in which the
ing lawyers do not alter the personal duty of each lawyer in person is employed, or has direct supervisory
a firm to abide by the Rules of Professional Conduct. See authority over the person, and knows of the con-
Rule 5.2 (a). duct at a time when its consequences can be
49
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 5.3 RULES OF PROFESSIONAL CONDUCT

avoided or mitigated but fails to take reasonable Rule 5.4. Professional Independence of a
remedial action. Lawyer
(P.B. 1978-1997, Rule 5.3.) (Amended June 26, 2006, to
(a) A lawyer or law firm shall not share legal
take effect Jan. 1, 2007.)
COMMENTARY: Lawyers generally employ assistants in
fees with a nonlawyer, except that:
their practice, including secretaries, investigators, law student (1) An agreement by a lawyer with the lawyer’s
interns, and paraprofessionals. Such assistants, whether firm, partner, or associate may provide for the
employees or independent contractors, act for the lawyer in payment of money, over a reasonable period of
rendition of the lawyer’s professional services. A lawyer must time after the lawyer’s death, to the lawyer’s estate
give such assistants appropriate instruction and supervision or to one or more specified persons;
concerning the ethical aspects of their employment, particu-
larly regarding the obligation not to disclose information relat- (2) A lawyer who purchases the practice of a
ing to representation of the client, and should be responsible deceased, disabled or disappeared lawyer may,
for their work product. The measures employed in supervising pursuant to the provisions of Rule 1.17, pay to
nonlawyers should take account of the fact that they do not the estate or other representative of that lawyer
have legal training and are not subject to professional dis- the agreed upon purchase price; and
cipline.
(3) A lawyer or law firm may include nonlawyer
Subdivision (1) requires lawyers with managerial authority
within a law firm to make reasonable efforts to ensure that employees in a compensation or retirement plan,
the firm has in effect measures giving reasonable assurance even though the plan is based in whole or in part
that nonlawyers in the firm and nonlawyers outside the firm on a profit-sharing arrangement.
who work on firm matters act in a way compatible with the (b) A lawyer shall not form a partnership with a
professional obligations of the lawyer. See Commentary to nonlawyer if any of the activities of the partnership
Rule 1.1 and first paragraph of Commentary to Rule 5.1. Subdi-
vision (2) applies to lawyers who have supervisory authority
consist of the practice of law.
over such nonlawyers within or outside the firm. Subdivision (c) A lawyer shall not permit a person who rec-
(3) specifies the circumstances in which a lawyer is responsible ommends, employs, or pays the lawyer to render
for the conduct of such nonlawyers within or outside the firm legal services for another to direct or regulate the
that would be a violation of the Rules of Professional Conduct lawyer’s professional judgment in rendering such
if engaged in by a lawyer. legal services.
Nonlawyers Outside the Firm. A lawyer may use nonlaw-
yers outside the firm to assist the lawyer in rendering legal
(d) A lawyer shall not practice with or in the
services to the client. Examples include the retention of an form of a professional corporation or association
investigative or paraprofessional service, hiring a document authorized to practice law for a profit, if:
management company to create and maintain a database for (1) A nonlawyer owns any interest therein,
complex litigation, sending client documents to a third party except that a fiduciary representative of the estate
for printing or scanning, and using an Internet-based service of a lawyer may hold the stock or interest of the
to store client information. When using such services outside
the firm, a lawyer must make reasonable efforts to ensure that
lawyer for a reasonable time during adminis-
the services are provided in a manner that is compatible with tration;
the lawyer’s professional obligations. The extent of this obliga- (2) A nonlawyer is a corporate director or officer
tion will depend upon the circumstances, including the educa- thereof or occupies the position of similar respon-
tion, experience and reputation of the nonlawyer; the nature sibility in any form of association other than a
of the services involved; the terms of any arrangements con-
corporation; or
cerning the protection of client information; and the legal and
ethical environments of the jurisdictions in which the services (3) A nonlawyer has the right to direct or control
will be performed, particularly with regard to confidentiality. the professional judgment of a lawyer.
See also Rules 1.1 (competence), 1.2 (allocation of authority), (P.B. 1978-1997, Rule 5.4.) (Amended June 26, 2006, to
1.4 (communication with client), 1.6 (confidentiality), 5.4 (a) take effect Jan. 1, 2007.)
(professional independence of the lawyer), and 5.5 (a) (unau- COMMENTARY: The provisions of this Rule express tradi-
thorized practice of law). When retaining or directing a nonlaw- tional limitations on sharing fees. These limitations are to pro-
yer outside the firm, a lawyer should communicate directions tect the lawyer’s professional independence of judgment.
appropriate under the circumstances to give reasonable assur- Where someone other than the client pays the lawyer’s fee
ance that the nonlawyer’s conduct is compatible with the pro- or salary, or recommends employment of the lawyer, that
fessional obligations of the lawyer. arrangement does not modify the lawyer’s obligation to the
Where the client directs the selection of a particular nonlaw- client. As stated in subsection (c), such arrangements should
yer service provider outside the firm, the lawyer may need not interfere with the lawyer’s professional judgment.
to consult with the client to determine how the outsourcing This Rule also expresses traditional limitations on permit-
arrangement should be structured and who will be responsible ting a third party to direct or regulate the lawyer’s professional
for monitoring the performance of the nonlawyer services. judgment in rendering legal services to another. See also Rule
Unless the client expressly agrees that the client will be respon- 1.8 (f) (lawyer may accept compensation from a third party as
sible for monitoring the nonlawyer’s services, the lawyer will long as there is no interference with the lawyer’s independent
be responsible for monitoring the nonlawyer’s services. professional judgment and the client gives informed consent).

50
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 5.5

Rule 5.5. Unauthorized Practice of Law (e) A lawyer not admitted to practice in this
(a) A lawyer shall not practice law in a jurisdic- jurisdiction and authorized by the provisions of
tion in violation of the regulation of the legal pro- this Rule to engage in providing legal services on
fession in that jurisdiction, or assist another in a temporary basis in this jurisdiction is thereby
doing so. The practice of law in this jurisdiction is subject to the disciplinary rules of this jurisdiction
defined in Practice Book Section 2-44A. Conduct with respect to the activities in this jurisdiction.
described in subsections (c) and (d) in another (f) A lawyer desirous of obtaining the privileges
jurisdiction shall not be deemed the unauthorized set forth in subsections (c) (3) or (4): (1) shall
practice of law for purposes of this subsection (a). notify the statewide bar counsel as to each sepa-
(b) A lawyer who is not admitted to practice in rate matter prior to any such representation in
this jurisdiction, shall not: Connecticut, (2) shall notify the statewide bar
(1) except as authorized by law, establish an counsel upon termination of each such represen-
office or other systematic and continuous pres- tation in Connecticut, and (3) shall pay such fees
ence in this jurisdiction for the practice of law; or as may be prescribed by the Judicial Branch.
(2) hold out to the public or otherwise represent (P.B. 1978-1997, Rule 5.5.) (Amended June 28, 1999, to
take effect Jan. 1, 2000; amended June 24, 2002, to take
that the lawyer is admitted to practice law in effect Jan. 1, 2003; amended June 29, 2007, to take effect
this jurisdiction. Jan. 1, 2008; amended June 30, 2008, to take effect Jan. 1,
(c) A lawyer admitted in another United States 2009; amended June 15, 2012, to take effect Jan. 1, 2013;
jurisdiction which accords similar privileges to amended June 13, 2014, to take effect Jan. 1, 2015.)
Connecticut lawyers in its jurisdiction, and pro- COMMENTARY: A lawyer may practice law only in a juris-
vided that the lawyer is not disbarred or sus- diction in which the lawyer is authorized to practice. A lawyer
may be admitted to practice law in a jurisdiction on a regular
pended from practice in any jurisdiction, may basis or may be authorized by court rule or order or by law
provide legal services on a temporary basis in this to practice for a limited purpose or on a restricted basis. Sub-
jurisdiction, that: section (a) applies to unauthorized practice of law by a lawyer,
(1) are undertaken in association with a lawyer whether through the lawyer’s direct action or by the lawyer’s
who is admitted to practice in this jurisdiction and assisting another person. For example, a lawyer may not assist
who actively participates in the matter; a person in practicing law in violation of the rules governing
professional conduct in that person’s jurisdiction.
(2) are in or reasonably related to a pending or
A lawyer may provide professional advice and instruction
potential proceeding before a tribunal in this or to nonlawyers whose employment requires knowledge of the
another jurisdiction, if the lawyer, or a person the law; for example, claims adjusters, employees of financial
lawyer is assisting, is authorized by law or order or commercial institutions, social workers, accountants and
to appear in such proceeding or reasonably persons employed in government agencies. Lawyers also may
expects to be so authorized; assist independent nonlawyers, such as paraprofessionals,
(3) are in or reasonably related to a pending or who are authorized by the law of a jurisdiction to provide
particular law-related services. In addition, a lawyer may coun-
potential mediation or other alternative dispute sel nonlawyers who wish to proceed as self-represented
resolution proceeding in this or another jurisdic- parties.
tion, with respect to a matter that is substantially Other than as authorized by law or this Rule, a lawyer who
related to, or arises in, a jurisdiction in which the is not admitted to practice generally in this jurisdiction violates
lawyer is admitted to practice and are not services subsection (b) (1) if the lawyer establishes an office or other
for which the forum requires pro hac vice admis- systematic and continuous presence in this jurisdiction for the
sion; or practice of law. Presence may be systematic and continuous
even if the lawyer is not physically present here. Such a lawyer
(4) are not within subdivisions (c) (2) or (c) (3) must not hold out to the public or otherwise represent that the
and arise out of or are substantially related to the lawyer is admitted to practice law in this jurisdiction. See also
legal services provided to an existing client of Rules 7.1 (a) and 7.5 (b). A lawyer not admitted to practice
the lawyer’s practice in a jurisdiction in which the in this jurisdiction who engages in repeated and frequent activi-
lawyer is admitted to practice. ties of a similar nature in this jurisdiction such as the prepara-
tion and/or recording of legal documents (loans and
(d) A lawyer admitted to practice in another mortgages) involving residents or property in this state may
jurisdiction, and not disbarred or suspended from be considered to have a systematic and continuous presence
practice in any jurisdiction, may provide legal ser- in this jurisdiction that would not be authorized by this Rule
vices in this jurisdiction that: and could, thereby, be considered to constitute unauthorized
(1) the lawyer is authorized to provide pursuant practice of law.
to Practice Book Section 2-15A and the lawyer is There are occasions in which a lawyer admitted to practice
in another United States jurisdiction, and not disbarred or
an authorized house counsel as provided in that
suspended from practice in any jurisdiction, may provide legal
section; or services on a temporary basis in this jurisdiction under circum-
(2) the lawyer is authorized by federal or other stances that do not create an unreasonable risk to the interests
law or rule to provide in this jurisdiction. of their clients, the public or the courts. Subsection (c) identifies

51
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 5.5 RULES OF PROFESSIONAL CONDUCT

four such circumstances. The fact that conduct is not so identi- the services are with respect to a matter that is substantially
fied does not imply that the conduct is or is not authorized. related to, or arises out of, a jurisdiction in which the lawyer
With the exception of subdivisions (d) (1) and (d) (2), this Rule is admitted to practice. The lawyer, however, must obtain
does not authorize a lawyer to establish an office or other admission pro hac vice in the case of a court-annexed arbitra-
systematic and continuous presence in this jurisdiction without tion or mediation or otherwise if court rules or law so require.
being admitted to practice generally here. There is no single Subdivision (c) (4) permits a lawyer admitted in another
test to determine whether a lawyer’s services are provided on jurisdiction to provide certain legal services on a temporary
a ‘‘temporary basis’’ in this jurisdiction and may, therefore, be basis in this jurisdiction if they arise out of or are substantially
permissible under subsection (c). Services may be ‘‘tempo- related to the lawyer’s practice in a jurisdiction in which the
rary’’ even though the lawyer provides services in this jurisdic- lawyer is admitted but are not within subdivisions (c) (2) or
tion for an extended period of time, as when the lawyer is (c) (3). These services include both legal services and services
representing a client in a single lengthy negotiation or litigation. that nonlawyers may perform but that are considered the prac-
Subsection (c) applies to lawyers who are admitted to prac- tice of law when performed by lawyers.
tice law in any United States jurisdiction, which includes the Subdivision (c) (3) requires that the services be with respect
District of Columbia and any state, territory or commonwealth to a matter that is substantially related to, or arises out of, a
of the United States. The word ‘‘admitted’’ in subsection (c) jurisdiction in which the lawyer is admitted. A variety of factors
contemplates that the lawyer is authorized to practice in the may evidence such a relationship. However, the matter,
jurisdiction in which the lawyer is admitted and excludes a although involving other jurisdictions, must have a significant
lawyer who, while technically admitted, is not authorized to connection with the jurisdiction in which the lawyer is admitted
practice, because, for example, the lawyer is in an inactive to practice. A significant aspect of the lawyer’s work might be
status. conducted in that jurisdiction or a significant aspect of the
Subdivision (c) (1) recognizes that the interests of clients matter may involve the law of that jurisdiction. The necessary
and the public are protected if a lawyer admitted only in another relationship might arise when the client’s activities and the
jurisdiction associates with a lawyer licensed to practice in resulting legal issues involve multiple jurisdictions. Subdivision
this jurisdiction. For this subdivision to apply, however, the (c) (4) requires that the services provided in this jurisdiction
lawyer admitted to practice in this jurisdiction must actively in which the lawyer is not admitted to practice be for (1) an
participate in and share responsibility for the representation existing client, i.e., one with whom the lawyer has a previous
of the client. relationship and not arising solely out of a Connecticut based
Lawyers not admitted to practice generally in a jurisdiction matter and (2) arise out of or be substantially related to the
may be authorized by law or order of a tribunal or an adminis- legal services provided to that client in a jurisdiction in which
trative agency to appear before the tribunal or agency. This the lawyer is admitted to practice. Without both, the lawyer is
authority may be granted pursuant to formal rules governing prohibited from practicing law in the jurisdiction in which the
admission pro hac vice or pursuant to informal practice of the lawyer is not admitted to practice.
tribunal or agency. Under subdivision (c) (2), a lawyer does Subdivision (d) (2) recognizes that a lawyer may provide
not violate this Rule when the lawyer appears before a tribunal legal services in a jurisdiction in which the lawyer is not
or agency pursuant to such authority. To the extent that a licensed when authorized to do so by federal or other law,
court rule or other law of this jurisdiction requires a lawyer which includes statute, court rule, executive regulation or judi-
who is not admitted to practice in this jurisdiction to obtain cial precedent.
admission pro hac vice before appearing before a tribunal or A lawyer who practices law in this jurisdiction pursuant to
administrative agency, this Rule requires the lawyer to obtain subsections (c) or (d) or otherwise is subject to the disciplinary
that authority. authority of this jurisdiction. See Rule 8.5 (a).
Subdivision (c) (2) also provides that a lawyer rendering In some circumstances, a lawyer who practices law in this
services in this jurisdiction on a temporary basis does not jurisdiction pursuant to subsections (c) or (d) may have to
violate this Rule when the lawyer engages in conduct in antici- inform the client that the lawyer is not licensed to practice law
pation of a proceeding or hearing in a jurisdiction in which the in this jurisdiction.
lawyer is authorized to practice law or in which the lawyer Subsections (c) and (d) do not authorize communications
reasonably expects to be admitted pro hac vice. Examples of advertising legal services in this jurisdiction by lawyers who
such conduct include meetings with the client, interviews of are admitted to practice in other jurisdictions. Whether and
potential witnesses, and the review of documents. Similarly, how lawyers may communicate the availability of their services
a lawyer admitted only in another jurisdiction may engage in this jurisdiction is governed by Rules 7.1 to 7.5.
in conduct temporarily in this jurisdiction in connection with
pending litigation in another jurisdiction in which the lawyer is Rule 5.6. Restrictions on Right to Practice
or reasonably expects to be authorized to appear, including A lawyer shall not participate in offering or
taking depositions in this jurisdiction.
When a lawyer has been or reasonably expects to be admit-
making:
ted to appear before a court or administrative agency, subdivi- (1) A partnership, shareholders, operating,
sion (c) (2) also permits conduct by lawyers who are associated employment, or other similar type of agreement
with that lawyer in the matter, but who do not expect to appear that restricts the right of a lawyer to practice after
before the court or administrative agency. For example, subor- termination of the relationship, except an
dinate lawyers may conduct research, review documents, and agreement concerning benefits upon retirement;
attend meetings with witnesses in support of the lawyer
responsible for the litigation.
or
Subdivision (c) (3) permits a lawyer admitted to practice (2) An agreement in which a restriction on the
law in another jurisdiction to perform services on a temporary lawyer’s right to practice is part of the settlement
basis in this jurisdiction if those services are in or reasonably of a client controversy.
related to a pending or potential mediation or other alternative (P.B. 1978-1997, Rule 5.6.) (Amended June 26, 2006, to
dispute resolution proceeding in this or another jurisdiction, if take effect Jan. 1, 2007.)

52
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 6.3

COMMENTARY: An agreement restricting the right of law- (1) Representing the client is likely to result in
yers to practice after leaving a firm not only limits their profes- violation of the Rules of Professional Conduct or
sional autonomy but also limits the freedom of clients to choose
a lawyer. Subdivision (1) prohibits such agreements except
other law;
for restrictions incident to provisions concerning retirement (2) Representing the client is likely to result in an
benefits for service with the firm. unreasonable financial burden on the lawyer; or
Subdivision (2) prohibits a lawyer from agreeing not to rep- (3) The client or the cause is so repugnant to
resent other persons in connection with settling a claim on the lawyer as to be likely to impair the client-lawyer
behalf of a client.
This Rule does not apply to prohibit restrictions that may
relationship or the lawyer’s ability to represent
be included in the terms of the sale of a law practice pursuant the client.
to Rule 1.17. (P.B. 1978-1997, Rule 6.2.)
COMMENTARY: A lawyer ordinarily is not obliged to accept
PUBLIC SERVICE a client whose character or cause the lawyer regards as repug-
nant. The lawyer’s freedom to select clients is, however, quali-
Rule 6.1. Pro Bono Publico Service fied. All lawyers have a responsibility to assist in providing pro
A lawyer should render public interest legal ser- bono publico service. See Rule 6.1. An individual lawyer fulfills
vice. A lawyer may discharge this responsibility this responsibility by accepting a fair share of unpopular mat-
ters or indigent or unpopular clients. A lawyer may also be
by providing professional services at no fee or a subject to appointment by a court to serve unpopular clients
reduced fee to persons of limited means or to or persons unable to afford legal services.
public service or charitable groups or organiza- Appointed Counsel. For good cause a lawyer may seek
tions, by service in activities for improving the law, to decline an appointment to represent a person who cannot
the legal system or the legal profession, and by afford to retain counsel or whose cause is unpopular. Good
financial support for organizations that provide cause exists if the lawyer could not handle the matter compe-
legal services to persons of limited means. tently, see Rule 1.1, or if undertaking the representation would
(P.B. 1978-1997, Rule 6.1.) result in an improper conflict of interest, for example, when
COMMENTARY: The ABA House of Delegates has formally the client or the cause is so repugnant to the lawyer as to be
acknowledged ‘‘the basic responsibility of each lawyer likely to impair the client-lawyer relationship or the lawyer’s
engaged in the practice of law to provide public interest legal ability to represent the client. A lawyer may also seek to decline
services’’ without fee, or at a substantially reduced fee in one an appointment if acceptance would be unreasonably burden-
or more of the following areas: poverty law, civil rights law, some, for example, when it would impose a financial sacrifice
public rights law, charitable organization representation and so great as to be unjust.
the administration of justice. This Rule expresses that policy An appointed lawyer has the same obligations to the client
but is not intended to be enforced through disciplinary process. as retained counsel, including the obligations of loyalty and
The rights and responsibilities of individuals and organiza- confidentiality, and is subject to the same limitations on the
tions in the United States are increasingly defined in legal client-lawyer relationship, such as the obligation to refrain from
terms. As a consequence, legal assistance in coping with the assisting the client in violation of the Rules.
web of statutes, rules and regulations is imperative for persons
of modest and limited means, as well as for the relatively well- Rule 6.3. Membership in Legal Services
to-do. Organization
The basic responsibility for providing legal services for those
unable to pay ultimately rests upon the individual lawyer, and A lawyer may serve as a director, officer or
personal involvement in the problems of the disadvantaged member of a legal services organization, apart
can be one of the most rewarding experiences in the life of a from the law firm in which the lawyer practices,
lawyer. Every lawyer, regardless of professional prominence notwithstanding that the organization serves per-
or professional workload, should find time to participate in
or otherwise support the provision of legal services to the
sons having interests adverse to a client of the
disadvantaged. The provision of free legal services to those lawyer. The lawyer shall not knowingly participate
unable to pay reasonable fees continues to be an obligation in a decision or action of the organization:
of each lawyer as well as the profession generally, but the (1) If participating in the decision or action would
efforts of individual lawyers are often not enough to meet the be incompatible with the lawyer’s obligations to a
need. Thus, it has been necessary for the profession and
government to institute additional programs to provide legal
client under Rule 1.7; or
services. Accordingly, legal aid offices, lawyer referral services (2) Where the decision or action could have a
and other related programs have been developed, and others material adverse effect on the representation of
will be developed by the profession and government. Every a client of the organization whose interests are
lawyer should support all proper efforts to meet this need for adverse to a client of the lawyer.
legal services. Law firms should act reasonably to enable and (P.B. 1978-1997, Rule 6.3.)
encourage all lawyers in the firm to provide the pro bono legal
COMMENTARY: Lawyers should be encouraged to support
services recommended by this Rule.
and participate in legal services organizations. A lawyer who
Rule 6.2. Accepting Appointments is an officer or a member of such an organization does not
thereby have a client-lawyer relationship with persons served
A lawyer shall not seek to avoid appointment by the organization. However, there is potential conflict
by a tribunal to represent a person except for good between the interests of such persons and the interests of the
cause, such as: lawyer’s clients. If the possibility of such conflict disqualified

53
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 6.3 RULES OF PROFESSIONAL CONDUCT

a lawyer from serving on the board of a legal services organiza- Except as provided in this Rule, the Rules of Pro-
tion, the profession’s involvement in such organizations would fessional Conduct, including Rules 1.6 and 1.9
be severely curtailed.
(c), are applicable to the limited representation.
It may be necessary in appropriate cases to reassure a
client of the organization that the representation will not be
(c) Except as provided in subsection (a) (2),
affected by conflicting loyalties of a member of the board. Rule 1.10 is inapplicable to a representation gov-
Established, written policies in this respect can enhance the erned by this Rule.
credibility of such assurances. (Adopted June 26, 2006, to take effect Jan. 1, 2007.)
COMMENTARY: Legal services organizations, courts and
Rule 6.4. Law Reform Activities Affecting various nonprofit organizations have established programs
Client Interests through which lawyers provide short-term limited legal ser-
vices—such as advice or the completion of legal forms—that
A lawyer may serve as a director, officer or will assist persons to address their legal problems without
member of an organization involved in reform of further representation by a lawyer. In these programs, such
the law or its administration notwithstanding that as legal advice hotlines, advice only clinics or self-represented
the reform may affect the interests of a client of party counseling programs, a client-lawyer relationship is
established, but there is no expectation that the lawyer’s
the lawyer. When the lawyer knows that the inter- representation of the client will continue beyond the limited
ests of a client may be materially benefitted by a consultation. Such programs are normally operated under cir-
decision in which the lawyer participates, the law- cumstances in which it is not feasible for a lawyer to systemati-
yer shall disclose that fact but need not identify cally screen for conflicts of interest as is generally required
the client. before undertaking a representation. See, e.g., Rules 1.7,
(P.B. 1978-1997, Rule 6.4.) 1.9 and 1.10.
Because a lawyer who is representing a client in the circum-
COMMENTARY: Lawyers involved in organizations seek-
stances addressed by this Rule ordinarily is not able to check
ing law reform generally do not have a client-lawyer relation-
systematically for conflicts of interest, subsection (a) requires
ship with the organization. Otherwise, it might follow that a
compliance with Rules 1.7 or 1.9 (a) only if the lawyer knows
lawyer could not be involved in a bar association law reform that the representation presents a conflict of interest for the
program that might indirectly affect a client. See also Rule 1.2 lawyer, and with Rule 1.10 only if the lawyer knows that another
(b). For example, a lawyer specializing in antitrust litigation lawyer in the lawyer’s firm is disqualified by Rules 1.7 or 1.9
might be regarded as disqualified from participating in drafting (a) in the matter.
revisions of rules governing that subject. In determining the Because the limited nature of the services significantly
nature and scope of participation in such activities, a lawyer reduces the risk of conflicts of interest with other matters being
should be mindful of obligations to clients under other Rules, handled by the lawyer’s firm, subsection (b) provides that Rule
particularly Rule 1.7. A lawyer is professionally obligated to 1.10 is inapplicable to a representation governed by this Rule
protect the integrity of the program by making an appropriate except as provided by subsection (a) (2). Subsection (a) (2)
disclosure within the organization when the lawyer knows a requires the participating lawyer to comply with Rule 1.10 when
private client might be materially benefitted. the lawyer knows that the lawyer’s firm is disqualified by Rules
1.7 or 1.9 (a). By virtue of subsection (b), however, a lawyer’s
Rule 6.5. Nonprofit and Court-Annexed Lim- participation in a short-term limited legal services program will
ited Legal Services Programs not preclude the lawyer’s firm from undertaking or continuing
the representation of a client with interests adverse to a client
(a) A lawyer who, under the auspices of a pro- being represented under the program’s auspices. Nor will the
gram sponsored by a nonprofit organization or personal disqualification of a lawyer participating in the pro-
court, provides short-term limited legal services gram be imputed to other lawyers participating in the program.
to a client without expectation by either the lawyer If, after commencing a short-term limited representation in
or the client that the lawyer will provide continuing accordance with this Rule, a lawyer undertakes to represent
the client in the matter on an ongoing basis, Rules 1.7, 1.9
representation in the matter: (a) and 1.10 become applicable.
(1) is subject to Rules 1.7 and 1.9 (a) only if
the lawyer knows that the representation of the INFORMATION ABOUT LEGAL SERVICES
client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer Rule 7.1. Communications concerning a
Lawyer’s Services
knows that another lawyer associated with the
lawyer in a law firm is disqualified by Rule 1.7 or A lawyer shall not make a false or misleading
1.9 (a) with respect to the matter. communication about the lawyer or the lawyer’s
(b) A lawyer who provides short-term limited services. A communication is false or misleading
legal services pursuant to this Rule must secure if it contains a material misrepresentation of fact
the client’s informed consent to the limited scope or law, or omits a fact necessary to make the
of the representation. See Rule 1.2 (c). If a short- statement considered as a whole not materially
term limited representation would not be reason- misleading.
(P.B. 1978-1997, Rule 7.1.) (Amended June 26, 2006, to
able under the circumstances, the lawyer may take effect Jan. 1, 2007.)
offer advice to the client but must also advise the COMMENTARY: This Rule governs all communications
client of the need for further assistance of counsel. about a lawyer’s services, including advertising permitted by

54
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 7.2

Rule 7.2. Whatever means are used to make known a lawyer’s number of the lawyer admitted in Connecticut
services, statements about them must be truthful. Statements, shall be displayed in bold print for fifteen seconds
even if literally true, that are misleading are also prohibited
by this Rule. A truthful statement is misleading if it omits a fact
or the duration of the commercial, whichever is
necessary to make the lawyer’s communication considered as less, and shall be prominent enough to be
a whole not materially misleading. A truthful statement is also readable.
misleading if there is a substantial likelihood that it will lead (e) Advertisements on the electronic media
a reasonable person to formulate a specific conclusion about such as television and radio may contain the same
the lawyer or the lawyer’s services for which there is no reason- factual information and illustrations as permitted
able factual foundation.
An advertisement that truthfully reports a lawyer’s achieve-
in advertisements in the print media.
ments on behalf of clients or former clients may be misleading (f) Every advertisement and written communi-
if presented so as to lead a reasonable person to form an cation that contains information about the lawyer’s
unjustified expectation that the same results could be obtained fee, including those indicating that the charging
for other clients in similar matters without reference to the of a fee is contingent on outcome, or that no fee
specific factual and legal circumstances of each client’s case. will be charged in the absence of a recovery, or
Similarly, an unsubstantiated comparison of the lawyer’s ser-
vices or fees with the services or fees of other lawyers may
that the fee will be a percentage of the recovery,
be misleading if presented with such specificity as would lead shall disclose whether and to what extent the cli-
a reasonable person to conclude that the comparison can be ent will be responsible for any court costs and
substantiated. The inclusion of an appropriate disclaimer or expenses of litigation. The disclosure concerning
qualifying language may preclude a finding that a statement court costs and expenses of litigation shall be in
is likely to create unjustified expectations or otherwise mislead the same print size and type as the information
the public.
See also Rule 8.4 (5) for the prohibition against stating or
regarding the lawyer’s fee and, if broadcast, shall
implying an ability to influence improperly a government appear for the same duration as the information
agency or official or to achieve results by means that violate regarding the lawyer’s fee. If the information
the Rules of Professional Conduct or other law. regarding the fee is spoken, the disclosure con-
cerning court costs and expenses of litigation shall
Rule 7.2. Advertising also be spoken.
(a) Subject to the requirements set forth in (g) A lawyer who advertises a specific fee or
Rules 7.1 and 7.3, a lawyer may advertise ser- range of fees for a particular service shall honor
vices through written, recorded or electronic com- the advertised fee or range of fees for at least
munication, including public media. ninety days unless the advertisement specifies a
(b) (1) A copy or recording of an advertisement shorter period; provided that, for advertisements
or communication shall be kept for three years in the yellow pages of telephone directories or
after its last dissemination along with a record other media not published more frequently than
of when and where it was used. An electronic annually, the advertised fee or range of fees shall
advertisement or communication shall be copied be honored for no less than one year following
once every three months on a compact disc or publication.
similar technology and kept for three years after (h) No lawyers shall directly or indirectly pay all
its last dissemination. or part of the cost of an advertisement by a lawyer
(2) A lawyer shall comply with the mandatory not in the same firm unless the advertisement
filing requirement of Practice Book Section 2-28A. discloses the name and address of the nonadver-
(c) A lawyer shall not give anything of value to tising lawyer, and whether the advertising lawyer
a person for recommending the lawyer’s services, may refer any case received through the adver-
except that a lawyer may: tisement to the nonadvertising lawyer.
(1) pay the reasonable cost of advertisements (i) The following information in advertisements
or communications permitted by this Rule; and written communications shall be presumed
(2) pay the usual charges of a not-for-profit or not to violate the provisions of Rule 7.1:
qualified lawyer referral service. A qualified lawyer (1) Subject to the requirements of Rule 7.3, the
referral service is a lawyer referral service that name of the lawyer or law firm, a listing of lawyers
has been approved by an appropriate regula- associated with the firm, office addresses and
tory authority; telephone numbers, office and telephone service
(3) pay for a law practice in accordance with hours, fax numbers, website and e-mail
Rule 1.17. addresses and domain names, and a designation
(d) Any advertisement or communication made such as ‘‘attorney’’ or ‘‘law firm.’’
pursuant to this Rule shall include the name of at (2) Date of admission to the Connecticut bar
least one lawyer admitted in Connecticut respon- and any other bars and a listing of federal courts
sible for its content. In the case of television adver- and jurisdictions where the lawyer is licensed to
tisements, the name, address and telephone practice.
55
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 7.2 RULES OF PROFESSIONAL CONDUCT

(3) Technical and professional licenses granted going beyond specified facts about a lawyer, or against ‘‘undig-
by the state or other recognized licensing nified’’ advertising. Television, the Internet, and other forms
of electronic communication are now among the most powerful
authorities. media for getting information to the public, particularly persons
(4) Foreign language ability. of low and moderate income; prohibiting television, Internet,
(5) Fields of law in which the lawyer practices and other forms of electronic advertising, therefore, would
or is designated, subject to the requirements of impede the flow of information about legal services to many
Rule 7.4, or is certified pursuant to Rule 7.4A. sectors of the public. Limiting the information that may be
advertised has a similar effect and assumes that the bar can
(6) Prepaid or group legal service plans in which accurately forecast the kind of information that the public would
the lawyer participates. regard as relevant.
(7) Acceptance of credit cards. Neither this Rule nor Rule 7.3 prohibits communications
(8) Fee for initial consultation and fee schedule. authorized by law, such as notice to members of a class in
(9) A listing of the name and geographic location class action litigation.
Record of Advertising. Subsection (b) requires that a
of a lawyer or law firm as a sponsor of a public record of the content and use of advertising be kept in order
service announcement or charitable, civic or com- to facilitate enforcement of this Rule. It does not require that
munity program or event. advertising be subject to review prior to dissemination. Such
(10) Nothing in this Rule prohibits a lawyer or a requirement would be burdensome and expensive relative
law firm from permitting the inclusion in the law to its possible benefits, and may be of doubtful constitutionality.
directories intended primarily for the use of the Paying Others to Recommend a Lawyer. Except as per-
mitted under subsection (c) (1) through (c) (3), lawyers are
legal profession of such information as has tradi- not permitted to pay others for recommending the lawyer’s
tionally been included in these publications. services or for channeling professional work in a manner that
(j) Notwithstanding the provisions of subsection violates Rule 7.3. A communication contains a recommenda-
(d), a lawyer and service may participate in an tion if it endorses or vouches for a lawyer’s credentials, abili-
internet based client to lawyer matching service, ties, competence, character, or other professional qualities.
Subsection (c) (1), however, allows a lawyer to pay for advertis-
provided the service otherwise complies with the ing and communications permitted by this Rule, including the
Rules of Professional Conduct. If the service pro- costs of print directory listings, on-line directory listings, news-
vides an exclusive referral to a lawyer or law firm paper advertisements, television and radio airtime, domain
for a particular practice area in a particular geo- name registrations, sponsorship fees, advertisements,
graphical region, then the service must comply Internet-based advertisements, and group advertising. A law-
with subsection (d). yer may compensate employees, agents and vendors who are
engaged to provide marketing or client development services,
(P.B. 1978-1997, Rule 7.2.) (Amended June 26, 2006, to
such as publicists, public relations personnel, business devel-
take effect Jan. 1, 2007; amended June 15, 2012, to take
opment staff and website designers. See also Rule 5.3 (duties
effect Jan. 1, 2013.)
of lawyers and law firms with respect to the conduct of nonlaw-
COMMENTARY: To assist the public in learning about and yers); Rule 8.4 (a) (duty to avoid violating the Rules through
obtaining legal services, lawyers should be allowed to make the acts of another).
known their services not only through reputation but also A lawyer may pay the usual charges of a legal service plan
through organized information campaigns in the form of adver- or a not-for-profit or qualified lawyer referral service. A legal
tising. Advertising involves an active quest for clients, contrary service plan is a prepaid or group legal service plan or a similar
to the tradition that a lawyer should not seek clientele. How- delivery system that assists people who seek to secure legal
ever, the public’s need to know about legal services can be representation. A lawyer referral service, on the other hand,
fulfilled in part through advertising. This need is particularly is any organization that holds itself out to the public as a lawyer
acute in the case of persons of moderate means who have referral service. Such referral services are understood by the
not made extensive use of legal services. The interest in public to be consumer oriented organizations that provide unbi-
expanding public information about legal services ought to ased referrals to lawyers with appropriate experience in the
prevail over considerations of tradition. Nevertheless, advertis- subject matter of the representation and afford other client
ing by lawyers entails the risk of practices that are misleading protections, such as complaint procedures or malpractice
or overreaching. insurance requirements. Consequently, this Rule only permits
This Rule permits public dissemination of information con- a lawyer to pay the usual charges of a not-for-profit or qualified
cerning a lawyer’s name or firm name, address, e-mail lawyer referral service. A qualified lawyer referral service is
address, website, and telephone number; the kinds of services one that is approved by an appropriate regulatory authority
the lawyer will undertake; the basis on which the lawyer’s as affording adequate protections for the public. See, e.g.,
fees are determined, including prices for specific services and the American Bar Association’s Model Supreme Court Rules
payment and credit arrangements; whether and to what extent Governing Lawyer Referral Services and Model Lawyer Refer-
the client will be responsible for any court costs and expenses ral and Information Service Quality Assurance Act (requiring
of litigation; lawyer’s foreign language ability; names of refer- that organizations that are identified as lawyer referral ser-
ences and, with their consent, names of clients regularly repre- vices: [i] permit the participation of all lawyers who are licensed
sented; and other information that might invite the attention and eligible to practice in the jurisdiction and who meet reason-
of those seeking legal assistance. able objective eligibility requirements as may be established
Questions of effectiveness and taste in advertising are mat- by the referral service for the protection of the public; [ii] require
ters of speculation and subjective judgment. Some jurisdic- each participating lawyer to carry reasonably adequate mal-
tions have had extensive prohibitions against television practice insurance; [iii] act reasonably to assess client satisfac-
advertising and other forms of advertising, against advertising tion and address client complaints; and [iv] do not make

56
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 7.3

referrals to lawyers who own, operate or are employed by the death or otherwise relates to an accident or disas-
referral service). ter involving the person to whom the communica-
A lawyer who accepts assignments or referrals from a legal
service plan or referrals from a lawyer referral service must
tion is addressed or a relative of that person,
act reasonably to assure that the activities of the plan or service unless the accident or disaster occurred more
are compatible with the lawyer’s professional obligations. See than forty days prior to the mailing of the communi-
Rule 5.3. Legal service plans and lawyer referral services may cation.
communicate with the public, but such communication must (c) Every written communication, as well as any
be in conformity with these Rules. Thus, advertising must not
be false or misleading, as would be the case if the communica-
communication by audio or video recording, or
tions of a group advertising program or a group legal services other electronic means, used by a lawyer for the
plan would mislead the public to think that it was a lawyer purpose of obtaining professional employment
referral service sponsored by a state agency or bar associa- from anyone known to be in need of legal services
tion. Nor could the lawyer allow in person, telephonic, or real- in a particular matter, must be clearly and promi-
time contacts that would violate Rule 7.3. nently labeled ‘‘Advertising Material’’ in red ink on
Rule 7.3. Solicitation of Clients the first page of any written communication and
(Amended June 13, 2014, to take effect Jan. 1, 2015.)
the lower left corner of the outside envelope or
(a) A lawyer shall not initiate personal, live tele- container, if any, and at the beginning and ending
phone, or real-time electronic contact, including of any communication by audio or video recording
telemarketing contact, for the purpose of obtaining or other electronic means. If the written communi-
professional employment, except in the follow- cation is in the form of a self-mailing brochure or
ing circumstances: pamphlet, the label ‘‘Advertising Material’’ in red
(1) If the target of the solicitation is a close ink shall appear on the address panel of the bro-
friend, relative, former client or one whom the chure or pamphlet. Brochures solicited by clients
lawyer reasonably believes to be a client; or any other person need not contain such mark.
(2) Under the auspices of a public or charitable No reference shall be made in the communication
legal services organization; to the communication having any kind of approval
(3) Under the auspices of a bona fide political, from the Connecticut bar. Such written communi-
social, civic, fraternal, employee or trade organi- cations shall be sent only by regular United States
zation whose purposes include but are not limited mail, not by registered mail or other forms of
to providing or recommending legal services, if restricted delivery.
the legal services are related to the principal pur- (d) The first sentence of any written communi-
poses of the organization; cation concerning a specific matter shall be: ‘‘If
(4) If the target of the solicitation is a business you have already retained a lawyer for this matter,
organization, a not-for-profit organization or gov- please disregard this letter.’’
ernmental body and the lawyer seeks to provide (e) A written communication seeking employ-
services related to the organization. ment in a specific matter shall not reveal on the
(b) A lawyer shall not contact or send a written envelope, or on the outside of a self-mailing bro-
or electronic communication to any person for the chure or pamphlet, the nature of the legal matter.
purpose of obtaining professional employment if: (f) If a contract for representation is mailed with
(1) The lawyer knows or reasonably should the communication, the top of each page of the
know that the physical, emotional or mental state contract shall be marked ‘‘Sample’’ in bold letters
of the person makes it unlikely that the person in red ink in a type size one size larger than the
would exercise reasonable judgment in employing largest type used in the contract and the words
a lawyer; ‘‘Do Not Sign’’ in bold letters shall appear on the
(2) It has been made known to the lawyer that client signature line.
the person does not want to receive such commu- (g) Written communications shall be on letter-
nications from the lawyer; sized paper rather than legal-sized paper and
(3) The communication involves coercion, shall not be made to resemble legal pleadings or
duress, fraud, overreaching, harassment, intimi- other legal documents. This provision does not
dation or undue influence; preclude the mailing of brochures and pamphlets.
(4) The written communication concerns a spe- (h) If a lawyer other than the lawyer whose
cific matter and the lawyer knows or reasonably name or signature appears on the communication
should know that the person to whom the commu- will actually handle the case or matter, or if the
nication is directed is represented by a lawyer in case or matter will be referred to another lawyer
the matter; or or law firm, any written communication concerning
(5) The written or electronic communication a specific matter shall include a statement so
concerns an action for personal injury or wrongful advising the target of the solicitation.
57
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 7.3 RULES OF PROFESSIONAL CONDUCT

(i) Notwithstanding the prohibitions in subsec- requirements of Rule 7.3 (c) are not applicable in those situa-
tion (a), a lawyer may participate with a prepaid tions. Also, nothing in this Commentary is intended to prohibit
a lawyer from participating in constitutionally protected activi-
or group legal service plan operated by an organi-
ties of public or charitable legal service organizations or bona
zation not owned or directed by the lawyer which fide political, social, civic, fraternal, employee or trade organi-
uses in-person or telephone contact to solicit zations whose purposes include providing or recommending
memberships or subscriptions for the plan from legal services to their members or beneficiaries.
persons who are not known to need legal services In determining whether a contact is permissible under Rule
in a particular matter covered by the plan. 7.3 (b), it is relevant to consider the time and circumstances
(P.B. 1978-1997, Rule 7.3.) (Amended June 26, 2006, to under which the contact is initiated. For example, a person
take effect Jan. 1, 2007; amended June 13, 2014, to take undergoing active medical treatment for traumatic injury is
effect Jan. 1, 2015.) unlikely to be in an emotional state in which reasonable judg-
COMMENTARY: A solicitation is a targeted communication ment about employing a lawyer can be exercised. Moreover,
initiated by the lawyer that is directed to a specific person and if after sending a letter or other communication to a member
that offers to provide, or can reasonably be understood as of the public as permitted by Rule 7.2 the lawyer receives no
offering to provide, legal services. In contrast, a lawyer’s com- response, any further effort to communicate with the person
munication typically does not constitute a solicitation if it is may violate the provisions of Rule 7.3 (b).
directed to the general public, such as through a billboard, The requirement in Rule 7.3 (c) that certain communications
an Internet banner advertisement, a website or a television be marked ‘‘Advertising Material’’ does not apply to communi-
commercial, or if it is in response to a request for information cations sent in response to requests of potential clients or
or is automatically generated in response to Internet searches. their spokespersons or sponsors. General announcements by
Unrestricted solicitation involves definite social harms. lawyers, including changes in personnel or office location, do
Among these are harassment, overreaching, provocation of not constitute communications soliciting professional employ-
nuisance litigation and schemes for systematic fabrication of ment from any person known to be in need of legal services
claims, all of which were experienced prior to adoption of within the meaning of this Rule.
restrictions on solicitation. Measures reasonably designed to This Rule is not intended to prohibit a lawyer from contacting
suppress these harms are constitutionally legitimate. At the representatives of organizations or groups that may be inter-
same time, measures going beyond realization of such objec- ested in establishing a group or prepaid legal plan for their
tives would appear to be invalid under relevant decisions of members, insureds, beneficiaries or other third parties for the
the United States Supreme Court. purpose of informing such entities of the availability of and
The potential for abuse inherent in direct in-person, live details concerning the plan or arrangement which the lawyer
telephone or real-time electronic solicitation justifies their pro- or lawyer’s firm is willing to offer. This form of communication
hibition, particularly since lawyers have alternative means of is not directed to people who are seeking legal services for
conveying necessary information to those who may be in need themselves. Rather, it is usually addressed to an individual
of legal services. In particular, communications can be mailed acting in a fiduciary capacity seeking a supplier of legal ser-
or transmitted by e-mail or other electronic means that do vices for others who may, if they choose, become prospective
not involve real-time contact and do not violate other laws clients of the lawyer. Under these circumstances, the activity
governing solicitations. These forms of communications and which the lawyer undertakes in communicating with such rep-
solicitations make it possible for the public to be informed
resentatives and the type of information transmitted to the
about the need for legal services, and about the qualifications
individual are functionally similar to and serve the same pur-
of available lawyers and law firms, without subjecting the public
pose as advertising permitted under Rule 7.2. Subsection (i)
to direct in-person, telephone or real-time electronic persua-
of this Rule would permit an attorney to participate with an
sion that may overwhelm a person’s judgment.
organization which uses personal contact to solicit members
The use of general advertising and written, recorded and
for its group or prepaid legal service plan, provided that the
electronic communications to transmit information from lawyer
personal contact is not undertaken by any lawyer who would
to the public, rather than direct in-person, live telephone, or
real-time electronic contact, will help to ensure that the infor- be a provider of legal services through the plan.
mation flows cleanly as well as freely. The contents of adver- Subsection (i) of this Rule permits a lawyer to participate
tisements and communications permitted under Rule 7.2 can with an organization that uses personal contact to solicit mem-
be permanently recorded so that they cannot be disputed and bers for its group or prepaid legal service plan, provided that
may be shared with others who know the lawyer. This potential the personal contact is not undertaken by any lawyer who
for informal review is itself likely to help guard against state- would be a provider of legal services through the plan. The
ments and claims that might constitute false and misleading organization must not be owned by or directed (whether as
communications, in violation of Rule 7.1. The contents of direct manager or otherwise) by any lawyer or law firm that partici-
in-person, live telephone, or real-time electronic contact can pates in the plan. For example, subsection (i) would not permit
be disputed and are not subject to a third-party scrutiny. Con- a lawyer to create an organization controlled directly or indi-
sequently, they are much more likely to approach (and occa- rectly by the lawyer and use the organization for the in-person
sionally cross) the dividing line between accurate or telephone solicitation of legal employment of the lawyer
representations and those that are false and misleading. through memberships in the plan or otherwise. The communi-
There is far less likelihood that a lawyer would engage in cation permitted by these organizations also must not be
abusive practices against a former client, or a person with directed to a person known to need legal services in a particular
whom the lawyer has a close personal or family relationship, or matter, but is to be designed to inform potential plan members
in situations in which the lawyer is motivated by considerations generally of another means of affordable legal services. Law-
other than the lawyer’s pecuniary gain. Nor is there a serious yers who participate in a legal service plan must reasonably
potential for abuse when the person contacted is a lawyer. ensure that the plan sponsors are in compliance with Rules
Consequently, the general prohibition in Rule 7.3 (a) and the 7.1, 7.2 and 7.3 (b). See 8.4 (a).

58
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 7.4A

Rule 7.4. Communication of Fields of lawyer was certified, the date of such certification
Practice and the date such certification expires.
(a) A lawyer may communicate the fact that the (c) A lawyer shall not state that he or she is a
lawyer does or does not practice in particular fields certified specialist if the lawyer’s certification has
of law. terminated, or if the statement is otherwise con-
(b) A lawyer admitted to engage in patent prac- trary to the terms of such certification.
tice before the United States Patent and Trade- (d) Certification as a specialist may not be attrib-
mark Office may use the designation ‘‘Patent uted to a law firm.
Attorney’’ or a substantially similar designation. (e) Lawyers may be certified as specialists in
(c) A lawyer engaged in admiralty practice may the following fields of law:
use the designation ‘‘Admiralty,’’ ‘‘Proctor in Admi- (1) Administrative law: The practice of law deal-
ralty’’ or a substantially similar designation. ing with states, their political subdivisions,
(d) A lawyer shall not state or imply that the regional and metropolitan authorities and other
lawyer is a specialist in a particular field of law public entities including, but not limited to, their
except as provided herein and in Rule 7.4A. rights and duties, financing, public housing and
(P.B. 1978-1997, Rule 7.4.) (Amended June 30, 2008, to urban development, the rights of public employ-
take effect Jan. 1, 2009.) ees, election law, school law, sovereign immunity,
COMMENTARY: This Rule permits a lawyer to indicate and constitutional law; practice before federal and
fields of practice in communications about the lawyer’s ser- state courts and governmental agencies.
vices. If a lawyer practices only in certain fields, or will not (2) Admiralty: The practice of law dealing with
accept matters except in such fields, the lawyer is permitted
so to indicate. A lawyer may indicate that the lawyer ‘‘concen-
all matters arising under the Carriage of Goods
trates in,’’ ‘‘focuses on,’’ or that the practice is ‘‘limited to’’ by Sea Act (COGSA), Harter Act, Jones Act, and
particular fields of practice as long as the statements are not federal and state maritime law including, but not
false or misleading in violation of Rule 7.1. However, the lawyer limited to, the carriage of goods, collision and
may not use the terms ‘‘specialist,’’ ‘‘certified,’’ ‘‘board-certi- other maritime torts, general average, salvage,
fied,’’ ‘‘expert’’ or any similar variation, unless the lawyer has limitation of liability, ship financing, ship subsidies,
been certified in accordance with Rule 7.4A.
the rights of injured sailors and longshoremen;
Recognition of specialization in patent matters is a matter
of long-established policy of the Patent and Trademark Office. practice before federal and state courts and gov-
Designation of admiralty practice has a long historical tradition ernmental agencies (including the Federal Mari-
associated with maritime commerce and the federal courts. time Commission).
(3) Antitrust: The practice of law dealing with
Rule 7.4A. Certification as Specialist all matters arising under the Sherman Act, Clayton
(a) Except as provided in Rule 7.4, a lawyer Act, Federal Trade Commission Act, Hart-Scott-
shall not state or imply that he or she is a specialist Rodino Antitrust Improvements Act and state anti-
in a field of law unless the lawyer is currently trust statutes including, but not limited to,
certified as a specialist in that field of law by a restraints of trade, unfair competition, monopoli-
board or other entity which is approved by the zation, price discrimination, restrictive practices;
Rules Committee of the superior court of this practice before federal and state courts and gov-
state. Among the criteria to be considered by the ernmental agencies.
Rules Committee in determining upon application (4) Appellate practice: The practice of law deal-
whether to approve a board or entity as an agency ing with all procedural and substantive aspects of
which may certify lawyers practicing in this state civil and criminal matters before federal and state
as being specialists, shall be the requirement that appeals courts including, but not limited to, argu-
the board or entity certify specialists on the basis ments and the submission of briefs.
of published standards and procedures which (1) (5) Business Bankruptcy: The practice of law
do not discriminate against any lawyer properly dealing with all aspects of the United States Bank-
qualified for such certification, (2) provide a rea- ruptcy Code when the debtor was engaged in
sonable basis for the representation that lawyers business before the institution of a Chapter 7, 9,
so certified possess special competence, and (3) or 11 proceeding. This includes, but is not limited
require redetermination of the special qualifica- to, business liquidations, business reorganiza-
tions of certified specialists after a period of not tions, and related adversary and contested pro-
more than five years. ceedings.
(b) Upon certifying a lawyer practicing in this (6) Child Welfare Law: The practice of law rep-
state as being a specialist, the board or entity resenting children, parents or the government in
that certified the lawyer shall notify the statewide all child protection proceedings including emer-
grievance committee of the name and juris num- gency, temporary custody, adjudication, disposi-
ber of the lawyer, the specialty field in which the tion, foster care, permanency planning,
59
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 7.4A RULES OF PROFESSIONAL CONDUCT

termination, guardianship, and adoption. Child (15) Elder law: The practice of law involving the
Welfare Law does not include representation in counseling and representation of older persons
private child custody and adoption disputes where and their representatives relative to the legal
the state is not a party. aspects of health and long term care planning
(7) Consumer Bankruptcy: The practice of law and financing; public benefits; alternative living
dealing with all aspects of the United States Bank- arrangements and attendant residents’ rights
ruptcy Code when the debtor was not engaged under state and federal law; special needs coun-
in business before the institution of a Chapter 7, seling; surrogate decision making; decision mak-
12, or 13 proceeding. This includes, but is not ing capacity; conservatorships; conservation,
limited to, liquidations, wage earner plans, family disposition, and administration of the estates of
farmers and related adversary and contested pro- older persons and the implementation of deci-
ceedings. sions of older persons and their representatives
(8) Civil rights and discrimination: The practice relative to the foregoing with due consideration
of law dealing with all matters arising under federal to the applicable tax consequences of an action,
and state law relating to proper treatment in the involving, when appropriate, consultation and col-
areas of, among others, public accommodations, laboration with professionals in related disci-
voting, employment, housing, administration of plines. Lawyers certified in elder law must be
welfare and social security benefits; practice capable of recognizing issues that arise during
before federal and state courts and governmen- counseling and representation of older persons or
tal agencies. their representatives with respect to the following:
(9) Civil trial practice: The practice of law deal- Abuse, neglect or exploitation of older persons;
ing with representation of parties before federal estate, trust, and tax planning; other probate mat-
or state courts in all noncriminal matters. ters. Elder law specialists must be capable of rec-
(10) Commercial transactions: The practice of ognizing the professional conduct and ethical
law dealing with all aspects of commercial paper, issues that arise during representation.
contracts, sales and financing, including, but not (16) Environmental: The practice of law dealing
limited to, secured transactions. with all aspects of the regulation of environmental
(11) Consumer claims and protection: The prac- quality by both federal and state governments;
tice of law dealing with all aspects of consumer control of air pollution, water pollution, noise pollu-
transactions including, but not limited to, sales tion, toxic substances, pesticides, and civilian
practices, credit transactions, secured transac- uses of nuclear energy; solid waste/resource
tions and warranties; all matters arising under the recovery; all matters arising under the National
Equal Credit Opportunity Act, the Fair Credit Environmental Policy Act, Clean Air Act, Federal
Reporting Act, the Magnuson-Moss Act, the Truth Water Pollution Control Act, Noise Control Act,
in Lending Act, state statutes such as the ‘‘Little Solid Waste Disposal Act, Toxic Substance Con-
FTC’’ acts, and other analogous federal and trol Act and other federal and state environmental
state statutes. statutes; practice before federal and state courts
(12) Corporate and business organizations: and governmental agencies.
The practice of law dealing with all aspects of the (17) Estate planning and probate: The practice
formation, operation and dissolution of corpora- of law dealing with all aspects of the analysis and
tions, partnerships (general and limited), agency planning for the conservation and disposition of
and other forms of business organizations. estates, giving due consideration to the applicable
(13) Corporate finance and securities: The tax consequences, both federal and state; the
practice of law dealing with all matters arising preparation of legal instruments in order to effec-
under the Securities Act of 1933, Securities tuate estate plans; administering estates, includ-
Exchange Act of 1934, Investment Advisors Act ing tax related matters, both federal and state.
(or the Federal Securities Code, if adopted) and (18) Family and matrimonial: The practice of
other federal and state securities statutes; financ- law dealing with all aspects of antenuptial and
ing corporate activities; mergers and acquisitions; domestic relationships, separation and divorce,
practice before the Securities and Exchange alimony and child support, distribution of assets,
Commission and state securities commissions. child custody matters and adoption, giving due
(14) Criminal: The practice of law dealing with consideration to the tax consequences, and court
the prosecution or representation of persons proceedings relating thereto.
accused of crimes at all stages of criminal pro- (19) Government contracts and claims: The
ceedings in federal or state courts including, but practice of law dealing with all aspects of the
not limited to, the protection of the accused’s con- negotiation and administration of contracts with
stitutional rights. federal and state governmental agencies.
60
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 7.4B

(20) Immigration and naturalization: The prac- residential dwellings when the client uses such
tice of law dealing with obtaining and retaining dwelling or expresses in writing the intent to use
permission to enter and remain in the United such dwelling as the client’s primary or other resi-
States including, but not limited to, such matters dence including, but not limited to, real estate
as visas, change of status, deportation and natu- conveyances, title searches and property trans-
ralization; representation of aliens before courts fers, leases, condominiums, cooperatives, and
and governmental agencies; protection of aliens’ other common interest communities, planned unit
constitutional rights. developments, mortgages, condemnation and
(21) International: The practice of law dealing eminent domain, zoning and land use planning,
with all aspects of the relations among states, property taxes, and determination of property
international business transactions, international rights.
taxation, customs and trade law and foreign and (B) Commercial Real Estate: The practice of
comparative law. law dealing with all aspects of real property trans-
(22) Labor: The practice of law dealing with actions except for residential real estate as
all aspects of employment relations (public and defined in subparagraph (A) of this subdivision,
private) including, but not limited to, unfair labor including, but not limited to, real estate convey-
practices, collective bargaining, contract adminis- ances, title searches and property transfers,
tration, the rights of individual employees and leases, condominiums, cooperatives and other
union members, employment discrimination; all common interest communities, planned unit
matters arising under the National Labor Rela- developments, mortgages, condemnation and
tions Act (Wagner Act), Labor Management Rela- eminent domain, zoning and land use planning,
tions Act (Taft-Hartley Act), Labor Management property taxes, real estate development and
Reporting and Disclosure Act (Landrum-Griffin financing (with due consideration to tax and secu-
Act), Fair Labor Standards Act, Title VII of The rities consequences) and determination of prop-
Civil Rights Act of 1964, Occupational Safety and erty rights.
Health Act (OSHA), Employee Retirement Income (27) Taxation: The practice of law dealing with
Security Act (ERISA), other federal statutes and all matters arising under the Internal Revenue
analogous state statutes; practice before the Code, Employee Retirement Income Security Act
National Labor Relations Board, analogous state (ERISA), state and local tax laws and foreign tax
boards, federal and state courts, and arbitrators. laws, including counseling with respect thereto;
(23) Military: The practice of law dealing with practice before federal and state courts and gov-
the presentation of parties before courts-martial ernmental agencies.
and other military tribunals in disputes arising (28) Workers’ Compensation: The practice of
under the uniform code of military justice; the rep- law dealing with the representation of parties
resentation of veterans and their dependents in before federal and state agencies, boards and
seeking government benefits due to them on courts in actions to determine eligibility for work-
account of military service; handling civil law prob- ers’ compensation, and disability.
lems of the military. (P.B. 1978-1997, Rule 7.4A.) (Amended June 20, 2005, to
(24) Natural Resources: The practice of law take effect Jan. 1, 2006; amended June 29, 2007, to take
effect Jan. 1, 2008; amended June 30, 2008, to take effect,
dealing with all aspects of the regulation of natural Jan. 1, 2009; amended June 13, 2014, to take effect Jan.
resources such as coal, oil, gas, minerals, water 1, 2015.)
and public lands; the rights and responsibilities
relating to the ownership and exploitation of such Rule 7.4B. Legal Specialization Screening
natural resources. Committee
(25) Patent, trademark and copyright: The prac- (a) The chief justice, upon recommendation of
tice of law dealing with all aspects of the registra- the Rules Committee of the superior court, shall
tion, protection and licensing of patents, appoint a committee of five members of the bar
trademarks or copyrights; practice before federal of this state which shall be known as the ‘‘Legal
and state courts in actions for infringement and Specialization Screening Committee.’’ The Rules
other actions; the prosecution of applications Committee of the superior court shall designate
before the United States Patent and Trademark one appointee as chair of the Legal Specialization
Office; counseling with regard to the law of unfair Screening Committee and another as vice chair
competition as it relates to patents, trademarks to act in the absence or disability of the chair.
and copyrights. (b) When the committee is first selected, two
(26) (A) Residential Real Estate: The practice of its members shall be appointed for a term of
of law dealing with all aspects of real property one year, two members for a term of two years,
transactions involving single one-to-four family and one member for a term of three years, and
61
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 7.4B RULES OF PROFESSIONAL CONDUCT

thereafter all regular terms shall be three years. the ability to further distribute an electronic copy for the consid-
Terms shall commence on July 1. In the event eration of Committee members will increase efficiency and
cut costs.
that a vacancy arises in this position before the
end of a term, the Chief Justice, upon recommen- Rule 7.5. Firm Names and Letterheads
dation of the Rules Committee of the superior
court, shall appoint a member of the bar of this (a) A lawyer shall not use a firm name, letter-
state to fill the vacancy for the balance of the term. head or other professional designation that vio-
The Legal Specialization Screening Committee lates Rule 7.1. A trade name may be used by a
shall act only with a concurrence of a majority of its lawyer in private practice if it does not imply a
members, provided, however, that three members connection with a government agency or with a
shall constitute a quorum. public or charitable legal services organization
(c) The Legal Specialization Screening Com- and is not otherwise in violation of Rule 7.1.
mittee shall have the power and duty to: (b) A law firm with offices in more than one
(1) Receive applications from boards or other jurisdiction may use the same name in each juris-
entities for authority to certify lawyers practicing diction, but identification of the lawyers in an office
in this state as being specialists in a certain area of the firm shall indicate the jurisdictional limita-
or areas of law. tions on those not licensed to practice in the juris-
(2) Investigate each applicant to determine diction where the office is located.
whether it meets the criteria set forth in Rule (c) The name of a lawyer holding a public office
7.4A (a). shall not be used in the name of a law firm, or in
(3) Submit to the Rules Committee of the supe- communications on its behalf, during any substan-
rior court a written recommendation, with reasons tial period in which the lawyer is not actively and
therefor, for approval or disapproval of each appli- regularly practicing with the firm.
cation, or for the termination of any prior approval (d) Lawyers may state or imply that they prac-
granted by the Rules Committee. tice in a partnership or other organization only
(4) Adopt regulations and develop forms neces- when that is the fact.
sary to carry out its duties under this section. The (P.B. 1978-1997, Rule 7.5.)
regulations and forms shall not become effective COMMENTARY: A firm may be designated by the names
until first approved by the Rules Committee of the of all or some of its members, by the names of deceased
members where there has been a continuing succession in
superior court.
the firm’s identity or by a trade name such as the ‘‘ABC Legal
(5) Consult with such persons deemed by the Clinic.’’ Although the United States Supreme Court has held
committee to be knowledgeable in the fields of that legislation may prohibit the use of trade names in profes-
law to assist it in carrying out its duties. sional practice, use of such names in law practice is acceptable
(P.B. 1978-1997, Rule 7.4B.) so long as it is not misleading. If a private firm uses a trade
name that includes a geographical name such as ‘‘Springfield
Rule 7.4C. Application by Board or Entity to Legal Clinic,’’ an express disclaimer that it is a public legal
Certify Lawyers as Specialists aid agency may be required to avoid a misleading implication.
Any board or entity seeking the approval of the It may be observed that any firm name including the name of
a deceased partner is, strictly speaking, a trade name. The
Rules Committee of the superior court for author- use of such names to designate law firms has proven a useful
ity to certify lawyers practicing in this state as means of identification. However, it is misleading to use the
being specialists in a certain field or fields of law name of a lawyer not associated with the firm or a predecessor
as set forth in Rule 7.4A (e), shall file an original of the firm.
and six copies of its application with the Legal With regard to subsection (d), lawyers sharing office facili-
Specialization Screening Committee pursuant to ties, but who are not in fact partners, may not denominate
Rule 7.4B on form JD-ES-63. The application themselves as, for example, ‘‘Smith and Jones,’’ for that title
materials shall be filed in a format prescribed by suggests partnership in the practice of law.
the Legal Specialization Screening Committee, MAINTAINING THE INTEGRITY OF
which may require them to be filed electronically. THE PROFESSION
(P.B. 1978-1997, Rule 7.4.) (Amended June 30, 2008, to
take effect Jan. 1, 2009; amended June 12, 2015, to take Rule 8.1. Bar Admission and Disciplinary
effect Jan. 1, 2016.)
HISTORY—2016: In 2016, ‘‘on form JD-ES-63’’ was added
Matters
to the first sentence after ‘‘Rule 7.4B.’’ Also in 2016, what is An applicant for admission to the bar, or a law-
now the second sentence was added. yer in connection with a bar admission application
AMENDMENT NOTE: The amendment to this rule gives or in connection with a disciplinary matter, shall
the Legal Specialization Screening Committee the option to
require that applications be filed electronically because appli- not:
cations are voluminous and are required to be filed in multiple (1) Knowingly make a false statement of mate-
copies for further distribution by the Judicial Branch. Having rial fact; or
62
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 8.3

(2) Fail to disclose a fact necessary to correct Rule 8.3. Reporting Professional Mis-
a misapprehension known by the person to have conduct
arisen in the matter, or knowingly fail to respond (a) A lawyer who knows that another lawyer has
to a lawful demand for information from an admis- committed a violation of the Rules of Professional
sions or disciplinary authority, except that this rule Conduct that raises a substantial question as to
does not require disclosure of information other- that lawyer’s honesty, trustworthiness or fitness
wise protected by Rule 1.6. as a lawyer in other respects, shall inform the
(P.B. 1978-1997, Rule 8.1.) appropriate professional authority. A lawyer may
COMMENTARY: The duty imposed by this Rule extends not condition settlement of a civil dispute involving
to persons seeking admission to the bar as well as to lawyers. allegations of improprieties on the part of a lawyer
Hence, if a person makes a material false statement in connec- on an agreement that the subject misconduct not
tion with an application for admission, it may be the basis for
subsequent disciplinary action if the person is admitted, and
be reported to the appropriate disciplinary
in any event may be relevant in a subsequent admission appli- authority.
cation. The duty imposed by this Rule applies to a lawyer’s (b) A lawyer who knows that a judge has com-
own admission or discipline as well as that of others. Thus, it mitted a violation of applicable rules of judicial
is a separate professional offense for a lawyer to knowingly conduct that raises a substantial question as to
make a misrepresentation or omission in connection with a the judge’s fitness for office shall inform the appro-
disciplinary investigation of the lawyer’s own conduct. Subdivi- priate authority.
sion (2) of this Rule also requires correction of any prior mis-
statement in the matter that the applicant or lawyer may have
(c) This Rule does not require disclosure of
made and affirmative clarification of any misunderstanding on information otherwise protected by Rule 1.6 or
the part of the admissions or disciplinary authority of which General Statutes § 51-81d (f) or obtained while
the person involved becomes aware. serving as a member of a bar association ethics
This Rule is subject to the provisions of the fifth amendment committee or the Judicial Branch Committee on
to the United States Constitution and corresponding provisions Judicial Ethics.
of state constitutions. A person relying on such a provision in (P.B. 1978-1997, Rule 8.3.) (Amended June 26, 2006, to
response to a question, however, should do so openly and take effect Jan. 1, 2007; amended June 30, 2008, to take
not use the right of nondisclosure as a justification for failure effect Aug. 1, 2008.)
to comply with this Rule. COMMENTARY: Self-regulation of the legal profession
A lawyer representing an applicant for admission to the requires that members of the profession initiate a disciplinary
bar, or representing a lawyer who is the subject of a disciplinary investigation when they know of a violation of the Rules of
inquiry or proceeding, is governed by the rules applicable to Professional Conduct. Lawyers have a similar obligation with
the client-lawyer relationship, including Rule 1.6 and, in some respect to judicial misconduct. An apparently isolated violation
cases, Rule 3.3. may indicate a pattern of misconduct that only a disciplinary
investigation can uncover. Reporting a violation is especially
Rule 8.2. Judicial and Legal Officials important where the victim is unlikely to discover the offense.
A report about misconduct is not required where it would
(a) A lawyer shall not make a statement that involve violation of Rule 1.6. However, a lawyer should encour-
the lawyer knows to be false or with reckless disre- age a client to consent to disclosure where prosecution would
gard as to its truth or falsity concerning the qualifi- not substantially prejudice the client’s interests.
cations or integrity of a judge, adjudicatory officer If a lawyer were obliged to report every violation of the
or public legal officer, or of a candidate for election Rules, the failure to report any violation would itself be a
professional offense. Such a requirement existed in many
or appointment to judicial or legal office. jurisdictions but proved to be unenforceable. This Rule limits
(b) A lawyer who is a candidate for judicial office the reporting obligation to those offenses that a self-regulating
shall comply with the applicable provisions of the profession must vigorously endeavor to prevent. A measure
Code of Judicial Conduct. of judgment is, therefore, required in complying with the provi-
(P.B. 1978-1997, Rule 8.2.) sions of this Rule. The term ‘‘substantial’’ refers to the seri-
ousness of the possible offense and not the quantum of
COMMENTARY: Assessments by lawyers are relied on in
evidence of which the lawyer is aware. A report should be
evaluating the professional or personal fitness of persons
made to the bar disciplinary agency unless some other agency,
being considered for election or appointment to judicial office
such as a peer review agency, is more appropriate in the
and to public legal offices, such as attorney general, prosecut-
circumstances. Similar considerations apply to the reporting
ing attorney and public defender. Expressing honest and can- of judicial misconduct.
did opinions on such matters contributes to improving the The duty to report professional misconduct does not apply
administration of justice. Conversely, false statements by a to a lawyer retained to represent a lawyer whose professional
lawyer can unfairly undermine public confidence in the admin- conduct is in question. Such a situation is governed by the
istration of justice. Rules applicable to the client-lawyer relationship.
When a lawyer seeks judicial office, the lawyer should be Information about a lawyer’s or judge’s misconduct or fit-
bound by applicable limitations on political activity. ness may be received by a lawyer in the course of that lawyer’s
To maintain the fair and independent administration of jus- participation in an approved lawyers or judges assistance pro-
tice, lawyers are encouraged to continue traditional efforts to gram. In that circumstance, providing for an exception to the
defend judges and courts unjustly criticized. reporting requirements of subsections (a) and (b) of this Rule

63
 Copyrighted by the Secretary of the State of the State of Connecticut
Rule 8.3 RULES OF PROFESSIONAL CONDUCT

encourages lawyers and judges to seek treatment through when such actions are prejudicial to the administration of jus-
such a program. Conversely, without such an exception, law- tice. Legitimate advocacy respecting the foregoing factors
yers and judges may hesitate to seek assistance from these does not violate subdivision (4).
programs, which may then result in additional harm to their A lawyer may refuse to comply with an obligation imposed
professional careers and additional injury to the welfare of by law upon a good faith belief that no valid obligation exists.
clients and the public. The provisions of Rule 1.2 (d) concerning a good faith chal-
lenge to the validity, scope, meaning or application of the law
Rule 8.4. Misconduct apply to challenges of legal regulation of the practice of law.
Lawyers holding public office assume legal responsibilities
It is professional misconduct for a lawyer to: going beyond those of other citizens. A lawyer’s abuse of
(1) Violate or attempt to violate the Rules of public office can suggest an inability to fulfill the professional
Professional Conduct, knowingly assist or induce role of a lawyer. The same is true of abuse of positions of
another to do so, or do so through the acts of private trust, such as trustee, executor, administrator, guard-
another; ian, agent and officer, director or manager of a corporation or
other organization.
(2) Commit a criminal act that reflects adversely
on the lawyer’s honesty, trustworthiness or fitness Rule 8.5. Disciplinary Authority; Choice of
as a lawyer in other respects; Law
(3) Engage in conduct involving dishonesty, (Amended June 26, 2006, to take effect Jan. 1, 2007.)
fraud, deceit or misrepresentation; (a) Disciplinary Authority. A lawyer admitted to
(4) Engage in conduct that is prejudicial to the practice in this jurisdiction is subject to the disci-
administration of justice; plinary authority of this jurisdiction, regardless of
(5) State or imply an ability to influence improp- where the lawyer’s conduct occurs. A lawyer not
erly a government agency or official or to achieve admitted in this jurisdiction is also subject to the
results by means that violate the Rules of Profes- disciplinary authority of this jurisdiction if the law-
sional Conduct or other law; or yer provides or offers to provide any legal services
(6) Knowingly assist a judge or judicial officer in this jurisdiction. A lawyer may be subject to the
in conduct that is a violation of applicable rules disciplinary authority of both this jurisdiction and
of judicial conduct or other law. another jurisdiction for the same conduct.
(P.B. 1978-1997, Rule 8.4.) (Amended June 26, 2006, to (b) Choice of Law. In any exercise of the disci-
take effect Jan. 1, 2007.) plinary authority of this jurisdiction, the rules of
COMMENTARY: Lawyers are subject to discipline when professional conduct to be applied shall be as
they violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so or do
follows:
so through the acts of another, as when they request or instruct (1) For conduct in connection with a matter
an agent to do so on the lawyer’s behalf. Subdivision (1), pending before a tribunal, the rules of the jurisdic-
however, does not prohibit a lawyer from advising a client tion in which the tribunal sits, unless the rules of
concerning action the client is legally entitled to take. the tribunal provide otherwise; and
Many kinds of illegal conduct reflect adversely on fitness (2) For any other conduct, the rules of the juris-
to practice law, such as offenses involving fraud and the diction in which the lawyer’s conduct occurred, or,
offense of wilful failure to file an income tax return. However,
some kinds of offenses carry no such implication. Traditionally,
if the predominant effect of the conduct is in a
the distinction was drawn in terms of offenses involving ‘‘moral different jurisdiction, the rules of that jurisdiction
turpitude.’’ That concept can be construed to include offenses shall be applied to the conduct. A lawyer shall not
concerning some matters of personal morality, such as adul- be subject to discipline if the lawyer’s conduct
tery and comparable offenses, which have no specific connec- conforms to the rules of a jurisdiction in which
tion to fitness for the practice of law. Although a lawyer is the lawyer reasonably believes the predominant
personally answerable to the entire criminal law, a lawyer effect of the lawyer’s conduct will occur.
should be professionally answerable only for offenses that (P.B. 1978-1997, Rule 8.5.) (Amended June 26, 2006, to
indicate lack of those characteristics relevant to law practice. take effect Jan. 1, 2007.)
Offenses involving violence, dishonesty, breach of trust, or COMMENTARY: Disciplinary Authority. It is longstanding
serious interference with the administration of justice are in law that the conduct of a lawyer admitted to practice in this
that category. A pattern of repeated offenses, even ones of jurisdiction is subject to the disciplinary authority of this jurisdic-
minor significance when considered separately, can indicate tion. Extension of the disciplinary authority of this jurisdiction
indifference to legal obligation. Counseling or assisting a client to other lawyers who provide or offer to provide legal services
with regard to conduct expressly permitted under Connecticut in this jurisdiction is for the protection of the citizens of this
law is not conduct that reflects adversely on a lawyer’s fitness jurisdiction. Reciprocal enforcement of a jurisdiction’s disciplin-
notwithstanding any conflict with federal or other law. Nothing ary findings and sanctions will further advance the purposes
in this commentary shall be construed to provide a defense of this Rule. See Rules 6 and 22, ABA Model Rules for Lawyer
to a presentment filed pursuant to Practice Book Section 2-41. Disciplinary Enforcement. A lawyer who is admitted pursuant
A lawyer who, in the course of representing a client, know- to Practice Book Sections 2-16 or 2-17 et seq. is subject to
ingly manifests by words or conduct, bias or prejudice based the disciplinary authority of this jurisdiction under Rule 8.5 (a)
upon race, sex, religion, national origin, disability, age, sexual and appoints an official to be designated by this court to receive
orientation or socioeconomic status, violates subdivision (4) service of process in this jurisdiction. The fact that the lawyer

64
 Copyrighted by the Secretary of the State of the State of Connecticut
 RULES OF PROFESSIONAL CONDUCT Rule 8.5

is subject to the disciplinary authority of this jurisdiction may shall be subject to the rules of the jurisdiction in which the
be a factor in determining whether personal jurisdiction may lawyer’s conduct occurred, or, if the predominant effect of the
be asserted over the lawyer for civil matters. conduct is in another jurisdiction, the rules of that jurisdiction
Choice of Law. A lawyer may be potentially subject to shall be applied to the conduct. So long as the lawyer’s conduct
more than one set of rules of professional conduct which conforms to the rules of a jurisdiction in which the lawyer
impose different obligations. The lawyer may be licensed to reasonably believes the predominant effect will occur, the law-
practice in more than one jurisdiction with differing rules, or yer shall not be subject to discipline under this Rule.
may be admitted to practice before a particular court with rules When a lawyer’s conduct involves significant contacts with
that differ from those of the jurisdiction or jurisdictions in which more than one jurisdiction, it may not be clear whether the
the lawyer is licensed to practice. Additionally, the lawyer’s predominant effect of the lawyer’s conduct will occur in a
conduct may involve significant contacts with more than jurisdiction other than the one in which the conduct occurred.
one jurisdiction. So long as the lawyer’s conduct conforms to the rules of a
Subsection (b) seeks to resolve such potential conflicts. Its jurisdiction in which the lawyer reasonably believes the pre-
premise is that minimizing conflicts between rules, as well as dominant effect will occur, the lawyer shall not be subject to
uncertainty about which rules are applicable, is in the best discipline under this Rule. With respect to conflicts of interest,
interest of both clients and the profession (as well as the bodies in determining a lawyer’s reasonable belief under subsection
(b) (2), a written agreement between the lawyer and client
having authority to regulate the profession). Accordingly, it
that reasonably specifies a particular jurisdiction as within the
takes the approach of (i) providing that any particular conduct
scope of that paragraph may be considered if the agreement
of a lawyer shall be subject to only one set of rules of profes- was obtained with the client’s informed consent confirmed in
sional conduct, and (ii) making the determination of which set the agreement.
of rules applies to particular conduct as straightforward as If two admitting jurisdictions were to proceed against a
possible, consistent with recognition of appropriate regulatory lawyer for the same conduct, they should, applying this Rule,
interests of relevant jurisdictions. identify the same governing ethics rules. They should take all
Subsection (b) (1) provides that, as to a lawyer’s conduct appropriate steps to see that they do apply the same rule to
relating to a proceeding pending before a tribunal, the lawyer the same conduct, and in all events should avoid proceeding
shall be subject only to the rules of the jurisdiction in which against a lawyer on the basis of two inconsistent rules.
the tribunal sits unless the rules of the tribunal, including its The choice of law provision applies to lawyers engaged in
choice of law rule, provide otherwise. As to all other conduct, transnational practice, unless international law, treaties or
including conduct in anticipation of a proceeding not yet pend- other agreements between competent regulatory authorities
ing before a tribunal, subsection (b) (2) provides that a lawyer in the affected jurisdictions provide otherwise.

65
 Copyrighted by the Secretary of the State of the State of Connecticut
 CODE OF JUDICIAL CONDUCT

CODE OF JUDICIAL CONDUCT

Preamble
Scope
Terminology
Application
Canons
Rules
Comments

For the Code of Judicial Conduct as it read prior their professional and personal lives by general
to 2011, see editions of the Practice Book prior ethical standards as well as by the law, which
to the 2011 edition. includes this Code, it is intended to assist judges
AMENDMENT NOTE: This is a major rewrite of the Code in maintaining the highest standards of profes-
of Judicial Conduct, adopted by the judges of the superior sional and personal conduct, as it affects their
court on June 21, 2010, the judges of the appellate court on judicial work.
July 15, 2010, and the justices of the supreme court on July
1, 2010, to take effect January 1, 2011. It is based on the SCOPE
Model Code adopted by the ABA in 2007. Our prior Code,
which was adopted with an effective date of October 1, 1974, (1) The Code of Judicial Conduct consists of
was based on the Model Code adopted by the ABA in 1972. four Canons, numbered Rules1 under each
In the early 1990s, the ABA adopted a revised Model Code; Canon, and Comments that generally follow and
however, the major changes in the Model Code were not explain each Rule. Scope and Terminology sec-
adopted by the judges of Connecticut. tions provide additional guidance in interpreting
PREAMBLE and applying the Code. An Application section
establishes when the various Rules apply to a
(1) An independent, fair and impartial judiciary judge.
is indispensable to our system of justice. The (2) The Canons state overarching principles of
United States legal system is based on the princi- judicial ethics that all judges must observe.
ple that an independent, impartial, and competent Although a judge may be disciplined hereunder
judiciary, composed of men and women of integ- only for violating a Rule, the Canons provide
rity, will interpret and apply the law that governs important guidance in interpreting the Rules.
our society. Thus, the judiciary plays a central role Where a Rule contains a permissive term, such
in preserving the principles of justice and the rule as ‘‘may’’ or ‘‘should,’’ the conduct being
of law. Inherent in all the Rules contained in this
addressed is committed to the sound personal
Code are the precepts that judges, individually
and professional discretion of the judge in ques-
and collectively, must respect and honor the judi-
tion, and no disciplinary action shall be taken for
cial office as a public trust and strive to maintain
action or inaction within the bounds of such dis-
and enhance confidence in the legal system.
(2) Judges should maintain the dignity of judicial cretion.
office at all times and avoid both impropriety and (3) The Comments that accompany the Rules
the appearance of impropriety in their professional serve two functions. First, they provide guidance
and personal lives. They should aspire at all times regarding the purpose, meaning, and proper
to conduct that ensures the greatest possible pub- application of the Rules. They contain explanatory
lic confidence in their independence, impartiality, material and, in some instances, provide exam-
integrity, and competence. ples of permitted or prohibited conduct. Com-
(3) The Code of Judicial Conduct establishes ments neither add to nor subtract from the binding
standards for the ethical conduct of judges in mat- obligations set forth in the Rules. Therefore, when
ters affecting the performance of their judicial a Comment contains the term ‘‘must,’’ it does not
duties and the fair and efficient operation of the mean that the Comment itself is binding or
courts or other tribunals on which they serve. enforceable; it signifies that the Rule in question,
Although it is not intended as an exhaustive guide 1
References herein to numbered Rules are to the Rules of
for the conduct of judges, who must be guided in this Code, unless stated otherwise.

66
 Copyrighted by the Secretary of the State of the State of Connecticut
 CODE OF JUDICIAL CONDUCT

properly understood, is obligatory as to the con- ‘‘De minimis,’’ in the context of interests per-
duct at issue. taining to disqualification of a judge, means an
(4) Second, the Comments identify aspirational insignificant interest that could not raise a reason-
goals for judges. To implement fully the principles able question regarding the judge’s impartiality.
of this Code as articulated in the Canons, judges See Rule 2.11.
should strive to exceed the standards of conduct ‘‘Domestic partner’’ means a person with whom
established by the Rules, holding themselves to another person maintains a household and an
the highest ethical standards and seeking to intimate relationship, other than a spouse. See
achieve those aspirational goals, thereby enhanc- Rules 2.11, 2.13, 3.13, and 3.14.
ing the dignity of the judicial office. ‘‘Economic interest’’ means ownership of more
(5) The Rules of the Code of Judicial Conduct than a de minimis legal or equitable interest.
are rules of reason that should be applied consis- Except for situations in which the judge partici-
tently with constitutional requirements, statutes, pates in the management of such a legal or equita-
other court rules, and decisional law, and with due ble interest, or the interest could be substantially
regard for all relevant circumstances. The Rules affected by the outcome of a proceeding before
should not be interpreted in such a