Letter to President Kimberly Knox 122013 With Attachments

8/13/2019 Letter to President Kimberly Knox 122013 With Attachments

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30 Bank Street

PO Box 350

New Britain

CT 06050-0350

0605?for 30 Ban

Professional Ethics Committee

P:(860) 223-4400

F:(860) 223-4488

VIA FACSIMILE

December20, 2013

KimberlyKnox,Esq.President

Connecticut Bar Association

30BanlcStreet

P.O.Box 350

NewBritain,CT06050-0350Re:Proposed Changes to the Rules of Professional Responsibility

a. Proposed Amendments to RulesofProfessional Conduct 1.18, 5.5,7.1, 7.2 and 7.3 re

Technology andClientDevelopment;

b. Proposed Amendments to Rules ofProfessionalConduct 8.5 reConflictsofLaw; and

c. Proposed Amendments to Rules ofProfessionalConduct reMedicalMarijuana.

DearPresidentKnox:

Pleasebe advised that the Standing Committee on Professional Ethics at its December 18,2013meeting approved recommendations of a subcommittee consisting ofMarcy Stovall andKate Stith regarding changes to the Rules of Professional Conduct as recommended by the

ABA's20/20 commission [See items a & b above]. We anticipate an additional packagewhich

should be considered at our January meeting. That set ofchanges will mark the end of our

Committee'sworkon the 20/20 Commission's proposals.

www. ctbar

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KimberlyKnox,Esq.December20, 2013

Page2/2

The Ethics committee also approved a recommendation to amend the Rules of

ProfessionalConduct so as to providesomeclarity regarding attorneysproviding legal services

to clients pursuant to Connecticut'sMedicalMarijuana Act.

Attached to this letter are reports regarding these proposals together with the exact

language of the rules as approved (showing additions and deletions). As is customary, the

committeesubmits theseproposed rules to the Connecticut Bar Association for approval by the

governing body. I f approved, these mles would then be submitted to the judiciary's Rules

Committee. It is my understanding that theresponsibilityto communicate Ethics Rules proposals

to the Rules Committee nowfallsto the chairoftheStanding Committee on Professional Ethics.Therefore, Iwould request that I be advised as to when the House ofdelegates and/or

Board of Governors will be addressing theseproposed mles changesand I am happy to attend

such meeting to answer any and all questions related to the same. Last, I asked that I be

immediatelyadvised as to the action ofthe governing body. At that juncture, Iwill communicate

anyproposals as adopted by theCBA to thejudiciary'sRules Committee.

JRL/jp

Enclosure

Cc: MarcyStovall,Esq., Pullinan &Comley, LLCProfessorKateStith,Vice^hair ofthe Committee on Professional Ethics

X /I f you haveany questions regardingthesamepleasefeel free to contact me.

www, elbar org


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Technology and Client Development

Summaryand Explanation of Proposed20/20Amendments to the Rules reTechnologyand Client Development

Previouslyadopted as changes to the Model Rules of Professional

Conductat theABAHouse ofDelegatesAugust2012 meeting

TheCommittee on Professional Responsibility has examined more of theABA'sAugust

2012amendments oftheModelRules and Comments to determine whether the ConnecticutRulesshould besimilarlyamended inlightoflawyers'regular use ofthe Internet to advise the

publicabout legalissuesand legal services and to attract new clients. The proposed amendments

(whichtheABAadopted under the heading of Technology and Client Development) include

changesto twoRules1.18(Duties to Prospective Clients) and 7.3 (Direct ContactwithProspectiveClients);achangeof atitleforRule 7.3; and additions to the Commentary to Rules

1.18,7.1 (Communications Concerning a Lawyer's Services), 7.2(Advertising);7.3, and 5.5(Unauthorized Practice ofLaw).

TheCommittee supports adoption ofall ofthe Technology and Client Developmentamendments,whichclarifyhow the Rules apply to Internet and other electronic advertisements

andcommunications.

Rule1.18and Commentary. The proposed amendments to Rule1.18and itsCommentaryclarifyunder what conditions electronic communications result in a "prospective

client-lawyer"relationship,withits attendant duties. In order to make clear that such a

relationship can be formed even when there is no oral communication, theword"discusses"

wouldbe changed to "consults." (Inadditionthe proposedchangesto the Commentary use the

word"consultation" instead of "conversation.") The revised Commentary fleshes out the

meaningofconsultationmakingclear thatabsentwarnings to the contrary, a prospectiveclient-lawyerrelationship isformedwhen, inresponseto the lawyer'sinvitation forsubmissionofinformation,a person providesinformationto the lawyer. On the other hand, no such

relationship isformedwhen a persontakestheinitiativeto sendinformationto a lawyer in

responseto general advertisements that do notinvitesubmission ofinformation. Finally,a new

sentencein the Commentarywouldmakesclear that so-called "taint"effortsdo notcreatea

prospectiveclient-lawyer relationship: "Moreover, a person who communicates witha lawyer for

thepuiposesofdisqualifyingthe lawyer is not a 'prospective client."Rule 5.5 and Commentary. Forclarification,the"safeharbor"provisionof Rule 5.5

should be amended by adding "or rule," so that itwouldprovide that a lawyer licensed in another

jurisdictioncould provide legal services in Connecticut where "authorized by federal or other

laworrule."Thiswould bringthe Rule inconformitywiththe Commentary.

TheCommittee also supports theABA'saddition of asentenceto the Commentary

remindinglawyers that they should not aid another lawyer in practicing law beyond thelimitsof

his or her authorization to do so. The proposed addition is asfollows:"For example, a lawyer

maynotassista person in practicing law inviolationof the rules governing professional conduct

inthatperson'sjurisdiction."

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Commentary to Rule5.5and Rule7.1. The Committee supports technicalconformingchangesinlightofthe proposed changesto Rule1.18: the term "prospective client"wouldbereplacedthroughoutwiththe terms "thepublic"or "the person."

Commentary to Rule1.2.The amendments to the Commentary of the Rule dealingwith

advertising are intended to more precisely define the term "recommendation" and thereby

eliminatesomeof theconfusionabout the use of Internet-based leadgeneratorsand other client

developmenttools. New Commentary language woulddefine theword "recommendation" as

follows:a "communication . . .[that]endorsesor vouches for a lawyer's credentials, abilities,

competence,character, or other professional qualities." The new Commentary language also

specificallyprovides that a lawyer is allowed to use "lead generation" services as long as the

lawyerensuresthat the lead generator doesnotengagein conduct constituting a

"recommendation,"and the lawyer complieswithRule1.5(e)regardingdivisionoffees,Rule

5.4regarding contingentfees,and Rule 7.1prohibitingfalse or misleading communications, and

otherethical obligations. The amendments wouldalso refer to "protecting thepublic"rather than

"protectingprospective clients," given that the latter is a narrowerclassthan the former.

Wenote that at therequestof Statewide Bar Counsel and completely independent of the20/20proposals concerning the advertising rules, theJudgesadded a newprovisionto Rule 7.2 -

embodied in7.2(j)and ineffectas of January 1,2013- that expressly approves attorneyparticipationin "internet-based client to lawyer matching service" so long as certain

requirementsare met

Changesto Rule7.3. The currenttitleof Connecticut Rule 7.3 is "Personal ContactwithProspectiveClients." The proposed newtitlewouldbe"SolicitationofClients"inlightof the

proposedchangesin Rule1.18,whichcan be understood to limittheclassof "prospectiveclients"tothosewhohaveshared informationwiththe lawyer. Rule 7.3, on the other hand, is

intended to cover contacts withallpossiblefutureclients, not justthosewhohavebecome

"prospectiveclients" to whom duties are owed under Rule1.18. The text of Rule 7.3wouldlikewiseremove the term "prospective client"fromsubsection (a), replace itwiththe term

"targetof the solicitation"in subsection (b),and replace itwiththeword"anyone" in subsection

(c). We alsosuggestcorrection ofatypo in subsection (d) by the removal of a comma after the

word "send."

NewCommentarywouldclarifywhen a lawyer's online communications are

"solicitations"governed by the Rule. Mosthelpfully,the proposed new Commentarywould

define"solicitation"to be a "targeted communicationinitiatedby the lawyer that is directed to a

specificperson and thatoffersto provide, or can reasonably be understood asofferingto provide,

legalservices." Other new Commentarywouldmake clear that neither advertisements generated

inresponseto an Internetsearchnor a lawyer'sresponseto arequestforinformationconstitutesolicitations.

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ProposedAmendments to Rules of Professional Conduct re Technology and ClientDevelopment

Changesto:

(a) the black letter and Commentary to Rule1.18(Duties to Prospective Client);(b)the Commentary to Rule 5.5 (Unauthorized Practice ofLaw;MultijurisdictionalPractice ofLaw);

(c)the Commentary to Rule 7.1 (Communications Concerning a Lawyer's Services);

(d)the Commentary to Rule 7.2(Advertising);and

(e)thetitle,black letter, and Commentary to Rule 7.3 (Direct ContactwithProspective Clients);

[Deletionsin brackets]; additions underlined. Where language is underlined andbold it waspartof the Model Rules prior to the20/20amendments but not previously adopted in

Connecticut.

Rule1.18:Duties to Prospective Clients(a) A person who[discussesor communicates] consultswitha lawyer concerning thepossibility

offorminga client-lawyer relationshipwithrespectto a matter is a prospective client.

(b)Even when no client-lawyer relationshipensues,a lawyer who has [had discussions with]

learnedinformationfroma prospective client shall not use or reveal thatinformation[learned in

theconsultation], except as Rule1.9wouldpermitwithrespecttoinformationof a former client.(c)A lawyer subject to subsection (b) shall notrepresenta clientwithinterests materially

adversetothoseof a prospective client in thesameor a substantially related matter i fthe lawyer

receivedinformationfromthe prospective client that could besignificantly harmfulto thatpersonin the matter, except as provided in subsection (d). I fa lawyer isdisqualifiedfrom

representationunder this paragraph, no lawyer in af i rmwithwhichthat lawyer isassociatedmayknowinglyundertake or continue representation in such a matter, except as provided in

subsection(d).

(d)When the lawyer has receiveddisqualifying informationas defined in subsection (c),

representationis permissible if:

(1)both the affected client and the prospective clienthavegiveninformedconsent,confirmedin

writing,or

(2)the lawyer who received theinformationtookreasonablemeasuresto avoidexposureto more

disqualifying informationthan was reasonably necessaryto determine whether torepresentthe

prospectiveclient; and

(i)thedisqualifiedlawyer istimelyscreenedfromany participation in the matter; and

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Technologyand Client Development

(ii)writtennotice ispromptlygiven to the prospective client.

OFFICIAL COMMENTARY

Prospectiveclients,likeclients, may disclose informationto a lawyer, place documents or other

property in the lawyer's custody, orrelyon the lawyer's advice. A lawyer's [discussions]

consultationswitha prospective client usually arelimitedin time and depth and leave both theprospectiveclient and the lawyer free (and sometimes required) to proceed no further. Hence,

prospectiveclients should receivesomebut notall of the protectionaffordedclients.

[Notallpersonswho transmitinformationto a lawyer are entitled to protection under this Rule.]

Apersonbecomesa prospective client by consultingwitha lawyer about thepossibilityof

formingaclient-lawyerrelationshipwithrespectto a matter. Whether communications,includingwritten,oral or electronic communications, constitute a consultationdependson the

circumstances. For example, a consultation islikelytohaveoccurred i fa lawyer, either in

personor through the lawyer's advertising in any medium,specificallyrequestsor invites the

submissionofinformationabout a potential representation withoutclear and reasonably

understandablewarnings and cautionarystatementsthat limitthe lawyer's obligations, and apersonprovidesinformationinresponse.In contrast, a consultationdoesnot occur i f aperson

providesinformationto a lawyer inresponseto advertising that merelydescribesthe lawyer's

education,experience,areasofpractice,and contact information,or provides legalinformation

ofgeneral interest. [Aperson who transmits] Such a person communicates information

unilaterallyto a lawyer,withoutanyreasonableexpectation that the lawyer iswillingtodiscuss

thepossibilityofformingaclient-lawyerrelationship, and is thus not a "prospective client"

[withinthe meaning of subsection (a)]. Moreover, a person who communicates witha lawyer for

thepurpose ofdisqualifyingthe lawyer is not a "prospective client."

Itisoftennecessaryfor a prospective client to revealinformationto the lawyer during aninitial

consultationpriorto the decision aboutformationof aclient-lawyerrelationship. The lawyeroftenmust learn such informationto determine whether there is aconflictof interestwithan

existingclient and whether the matter is one that the lawyer is willingto undertake. Subsection

(b)prohibits the lawyerfromusing or revealing that information,except as permitted by Rule

1.9,even i fthe client or lawyerdecidesnot to proceedwiththe representation. The duty existsregardlessof how brieftheinitial [conference] consultation may be.

Inorder to avoid acquiringdisqualifyinginformationfroma prospective client, a lawyer

considering whether or not to undertake a new matter shouldlimittheinitial [interview]

consultationtoonlysuch informationas reasonably appears necessaryfor thatpuipose.Wheretheinformationindicates that aconflictof interest or otherreasonfor non-representation exists,

thelawyer should soinformthe prospective client or decline the representation. I ftheprospectiveclient wishes to retain the lawyer, and i fconsent is possible under Rule1.7,thenconsentfromall affectedpresentor former clients must be obtained before accepting the

representation.

Alawyer may condition [conversations] consultationswitha prospective client on theperson's

informedconsent that no informationdisclosed during the consultationwill prohibitthe lawyer

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fromrepresenting adifferentclient in the matter. See Rule1.0(f)for thedefinitionofinformedconsent. I ftheagreementexpressly so provides, the prospective client mayalso consentto the

lawyer'ssubsequentuse ofinformationreceivedfromthe prospective client.

Even in theabsenceof anagreement,under subsection (c),the lawyer is not prohibitedfrom

representinga clientwith interests adversetothoseoftheprospective client in thesameor asubstantially related matterunlessthe lawyer has received fromthe prospective clientinformationthat could besignificantly harmfuli fusedinthe matter.

Under subsection (c),theprohibitionin this Rule is imputed to other lawyers as provided in Rule

1.10,but, under subsection (d) (1), imputation may be avoided i fthe lawyer obtains theinformed

consent,confirmedinwriting,of both the prospective and affected clients. In the alternative,

imputationmay be avoided i fthe conditions of subsection (d) (2) are met and alldisqualified

lawyersaretimelyscreenedandwrittennotice is promptly given to the prospective client. See

Rule 1.0 (1) (requirements for screening procedures).

Notice,includinga general description of the subject matter aboutwhichthe lawyer was

consulted, and of the screeningproceduresemployed, generally should be given as soon aspracticableafter theneedfor screening becomesapparent.

For the duty ofcompetenceof a lawyer who givesassistanceon the merits of a matter to a

prospectiveclient, see Rule 1.1. For a lawyer's duties when a prospective cliententrusts

valuablesorpapersto the lawyer'scare,see Rule1.15.

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Rule5.5. Unauthorized Practice ofLaw

(a) A lawyer shall not practice law inajurisdictioninviolationof the regulationofthe legal

profession in thatjurisdiction,orassistanother in doing so. The practice oflawin this

jurisdictionis defined in Practice Book Section2-44A.Conduct described insubsections(c) and

(d)in anotherjurisdictionshall not be deemed the unauthorized practice oflawforpurposesof

this paragraph (a).

(b)A lawyer who is not admitted to practice in thisjurisdiction,shall not:

(1)except as authorized by law, establish anofficeor other systematic and continuouspresence

inthisjurisdictionfor the practice oflaw;or

(2)holdout to the public or otherwiserepresentthat the lawyer is admitted to practice lawinthis

jurisdiction.

(c)A lawyer admitted in anotherUnitedStatesjurisdiction whichaccordssimilar privileges to

Connecticut lawyers in itsjurisdiction,and provided that the lawyer is not disbarred orsuspendedfrompractice in anyjurisdiction,may provide legal services on a temporarybasisin

thisjurisdiction,that:

(1)are undertaken in associationwitha lawyer who is admitted to practice in thisjurisdiction

andwhoactivelyparticipates in the matter;

(2)are in or reasonably related to a pending or potential proceeding before atribunalin this or

anotherjurisdiction, i fthe lawyer, or a person the lawyer is assisting, is authorized by law or

ordertoappearin such proceeding or reasonablyexpectsto be so authorized;

(3)are in or reasonably related to a pending or potential mediation or other alternative disputeresolutionproceeding in this or anotherjurisdiction,withrespectto a matter that is substantially

related to, orarisesin,ajurisdictioninwhichthe lawyer is admitted to practice and are not

servicesforwhichtheforumrequires pro hac vice admission; or

(4)are notwithinsubdivisions (c) (2) or (c) (3) and arise out of or are substantially related to the

legalservices provided to an existing client of the lawyer's practice in ajurisdictioninwhichthe

lawyeris admitted to practice.

(d)A lawyer admitted to practice in anotherjurisdiction,and not disbarred orsuspendedfrom

practicein anyjurisdiction,may provide legal services through anofficeor other systematic and

continuouspresencein thisjurisdictionthat:

(1)the lawyer is authorized to provide pursuant to Practice Book Section 2-15A and the lawyer

is an authorizedhousecounsel as provided in that section; or

(2)the lawyer is authorized by federal or other law or rule to provideinthisjurisdiction.

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(e) A lawyer not admitted to practice in thisjurisdictionand authorized by the provisionsofthis

Ruletoengageinprovidinglegal services on a temporarybasisin thisjurisdictionis thereby

subjectto thedisciplinaryrules ofthisjurisdictionwithrespectto the activities in thisjurisdiction.

(f)A lawyer desirous ofobtainingthe privileges set forthinsubsections(c) (3) or(4),(1) shall

notifythe statewide bar counsel as toeachseparatematterpriorto any such representation inConnecticut, (2) shallnotifythe statewide bar counsel upon termination ofeachsuch

representationin Connecticut, and (3) shall pay suchfeesas may be prescribed by the Judicial

Branch.

OFFICIAL COMMENTARY

Alawyer may practice lawonlyinajurisdictioninwhichthe lawyer is authorized to practice. A

lawyermay be admitted to practice law inajurisdictionon a regularbasisor may be authorized

bycourt rule or order or by law to practice for alimitedpurpose or on a restrictedbasis.

Subsection(a) applies to unauthorized practice oflawby a lawyer, whether through the lawyer's

directaction or by the lawyer's assisting another person.

Alawyer may provide professional advice and instructionto nonlawyers whose employment

requiresknowledgeofthe law; for example, claims adjusters, employees offinancialor

commercialinstitutions,social workers, accountants andpersonsemployed in government

agencies.Lawyers also mayassistindependent nonlawyers, such as paraprofessionals, who are

authorized by the law of ajurisdictionto provide particular law-related services. Inaddition,a

lawyermay counsel nonlawyers whowishto proceed asself-representedparties.Otherthan as authorized by law or this Rule, a lawyer who is not admitted to practice generally

inthisjurisdictionviolates subsection (b)(1) i fthe lawyerestablishesanofficeor other

systematicand continuouspresencein thisjurisdictionforthe practice oflaw.Presencemay be

systematicand continuous even i fthe lawyer is notphysicallypresenthere. Such a lawyer mustnotholdout to the public or otherwiserepresentthat the lawyer is admitted to practice law in this

jurisdiction.See also Rules 7.1 (a) and 7.5 (b). A lawyer not admitted to practice in this

jurisdictionwhoengagesin repeated and frequent activities of a similar nature in thisjurisdiction

suchas the preparation and/or recording oflegaldocuments (loans and mortgages) involving

residentsor property in thisstatemay be considered tohavea systematic and continuous

presencein thisjurisdiction which wouldnot be authorized by this Rule and could thereby be

consideredto constitute unauthorized practice oflaw.

Thereare occasions inwhicha lawyer admitted to practice in another UnitedStatesjurisdiction,andnot disbarred orsuspendedfrompractice in anyjurisdiction,may provide legal services on a

temporarybasisin thisjurisdictionunder circumstances that do notcreateanunreasonablerisktotheinterests oftheirclients, the public or the courts. Subsection (c)identifiesfour such

circumstances.The fact that conduct is not soidentifieddoesnotimplythat the conduct is or is

notauthorized.Withthe exception of subdivisions (d) (1) and (d) (2), this Ruledoesnot

authorizea lawyer to establish anofficeor other systematic and continuouspresencein this

jurisdiction withoutbeing admitted to practice generally here.

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Thereis no singletestto determine whether a lawyer'sservicesare provided on a "temporary

basis"inthisjurisdictionand may, therefore, be permissible under subsection (c). Services may

be"temporary" even though the lawyer providesservicesin thisjurisdictionfor an extended

periodoftime,as when the lawyer is representing a client in a single lengthy negotiation or

litigation.

Subsection(c) applies to lawyers who are admitted to practice law in any United Statesjurisdiction, whichincludes theDistrictofColumbiaand anystate,territory or commonwealth of

theUnitedStates.Theword"admitted" in subsection (c) contemplates that the lawyer is

authorized to practice in thejurisdictioninwhichthe lawyer is admitted and excludes a lawyer

who, whiletechnically admitted, is not authorized to practice,because,for example, the lawyer

is in an inactivestatus.

Subdivision(c) (1) recognizes that the interests of clients and the public are protected i fa lawyer

admittedonly in another jurisdictionassociateswitha lawyer licensed to practice in this

jurisdiction.For this subdivision to apply, however, the lawyer admitted to practice in this

jurisdictionmust actively participate in andshareresponsibility for the representation ofthe

client.

Lawyers not admitted to practice generally in ajurisdictionmay be authorized by law or order of

atribunalor an administrativeagencytoappearbefore the tribunal oragency.This authority may

begranted pursuant toformalrules governing admission pro hac vice or pursuant toinformal

practice of thetribunaloragency.Under subdivision (c) (2), a lawyerdoesnot violate this Rule

whenthe lawyerappearsbefore atribunaloragencypursuant to such authority. To the extent

that a court rule or other law ofthisjurisdictionrequires a lawyer who is not admitted to practice

inthisjurisdictionto obtain admission pro hac vice before appearing before atribunalor

administrativeagency,this Rule requires the lawyer to obtain that authority.

Subdivision(c) (2)alsoprovides that a lawyer renderingservicesin thisjurisdictionon atemporarybasisdoesnot violate this Rule when the lawyerengagesin conduct in anticipation of

aproceeding or hearing inajurisdictioninwhichthe lawyer is authorized to practice law or in

whichthe lawyer reasonably expectsto be admitted pro hac vice. Examples of such conduct

includemeetings withthe client, interviewsofpotentialwitnesses,and the review of documents.

Similarly,a lawyer admitted only in another jurisdictionmayengagein conduct temporarily in

thisjurisdictionin connectionwithpending litigationin anotherjurisdictioninwhichthe lawyer

is or reasonably expectsto be authorized toappear,includingtaking depositions in this

jurisdiction.

Whena lawyer hasbeenor reasonably expectsto be admitted toappearbefore a court or

administrativeagency,subdivision (c) (2)alsopermits conduct by lawyers who areassociatedwiththat lawyer in the matter, but who do not expect toappearbefore the court or administrative

agency.For example, subordinate lawyers may conductresearch,review documents, and attend

meetingswithwitnessesin support of the lawyer responsible for the litigation.

Subdivision(c) (3) permits a lawyer admitted to practice law in another jurisdictionto perform

serviceson a temporarybasisin thisjurisdiction i fthoseservicesare in or reasonably related to a

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pending or potential mediation or other alternative dispute resolution proceeding in this or

anotherjurisdiction, i ftheservicesarewithrespectto a matter that is substantially related to, or

arisesout of,ajurisdictioninwhichthe lawyer is admitted to practice. The lawyer, however,

mustobtain admission pro hac vice in thecaseof a court-annexed arbitration or mediation or

otherwise i fcourt rules or law so require.

Subdivision(c) (4) permits a lawyer admitted in anotherjurisdictionto provide certain legal

serviceson a temporarybasisin thisjurisdiction i ftheyariseout of or are substantially related to

thelawyer's practice inajurisdictioninwhichthe lawyer is admitted but are notwithin

subdivisions (c) (2) or (c) (3).These servicesinclude both legalservicesandservicesthat

nonlawyersmayperformbut that are considered the practice oflawwhen performed by lawyers.

Subdivision(c) (3) requires that theservicesbewithrespectto a matter that is substantially

relatedto, orarisesout of,ajurisdictioninwhichthe lawyer is admitted. A variety of factors

mayevidence such a relationship. However, the matter, althoughinvolvingotherjurisdictions,

musthaveasignificantconnectionwiththejurisdictioninwhichthe lawyer is admitted to

practice.Asignificantaspectof the lawyer'sworkmight be conducted in thatjurisdictionor a

significantaspectof the matter mayinvolvethe law of thatjurisdiction.Thenecessaryrelationship mightarisewhen the client's activities and the resulting legalissuesinvolvemultiple

jurisdictions.Subdivision (c) (4) requires that theservicesprovided in thisjurisdictioninwhich

thelawyer is not admitted to practice be for (1) an existing client, i.e., onewithwhom the lawyer

hasa previous relationship and not arising solely out of a Connecticut-based matter and (2)arise

out of or be substantially related to the legalservicesprovided to that client inajurisdictionin

whichthe lawyer is admitted to practice. Without both, the lawyer is prohibitedfrompracticing

lawin thejurisdictioninwhichthe lawyer is not admitted to practice.

Subdivision(d) (2) recognizes that a lawyer may provide legalservicesin ajurisdictioninwhich

thelawyer is not licensed when authorized to do so by federal or other law, which includes

statute,courtrule,executive regulation orjudicialprecedent.

A lawyer who practices law in thisjurisdictionpursuant tosubsections(c) or (d) or otherwise is

subjectto the disciplinary authority of thisjurisdiction.See Rule 8.5 (a).

Insomecircumstances, a lawyer who practices law in thisjurisdictionpursuant tosubsections(c)

or (d) mayhavetoinformthe client that the lawyer is not licensed to practice law in this

jurisdiction.

Subsections(c) and (d) do not authorize communications advertising legalservices[to

prospectiveclients] in thisjurisdictionby lawyers who are admitted to practice in other

jurisdictions.Whether and how lawyers may communicate the availability of their servicesinthis jurisdiction is governed by Rules 7.1 to 7.5.

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Technology andClientDevelopment

Rule7.1. Communications Concerning aLawyer'sServicesAlawyer shall not make a false or misleading communication about the lawyer or the lawyer's

services.A communication is false or misleadingif itcontains a material misrepresentation of

factorlaw, or omits a factnecessaryto make the statement considered as a whole notmaterially

misleading.

OFFICIAL COMMENTARY

ThisRule governs all communications about a lawyer's services, includingadvertising permitted

byRule 7.2. Whatevermeansare used to make known a lawyer's services, statementsabout

them must betruthful.

Statementseven i fliterallytrue that are misleading are alsoprohibitedby this Rule. Atruthful

statementis misleading if itomits a factnecessaryto make the lawyer's communication

consideredas a whole not materially misleading. Atruthfulstatement is also misleadingi fthere

is a substantial likelihoodthat itwill lead areasonableperson to formulate a specific conclusion

aboutthe lawyer or the lawyer's services for whichthere is noreasonablefactual foundation.

An advertisement thattruthfullyreports a lawyer's achievements on behalf of clients orformer

clients may be misleadingi fpresented so as to lead areasonableperson toformanunjustified

expectation that thesameresults could be obtained for other clients in similar matters without

referenceto the specific factual and legal circumstances ofeachclient'scase.Similarly,an

unsubstantiatedcomparison of the lawyer's services orfeeswiththe services orfeesof other

lawyers may be misleadingi fpresented withsuchspecificityaswouldlead areasonableperson

toconclude that the comparison can be substantiated. Theinclusionof an appropriate disclaimer

orqualifyinglanguage may preclude afindingthat a statement islikelytocreateunjustified

expectationsor otherwise mislead [a prospectiveclient]thepublic.Seealso Rule 8.4 (5) for theprohibitionagainst stating orimplyinganabilityto influence

improperlya government agency orofficialor to achieve results bymeansthatviolatethe Rules

ofProfessional Conduct or other law.

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Rule7.2. Advertising(a)Subjectto the requirements set forthin Rules 7.1 and 7.3, a lawyer may advertise servicesthroughwritten,recorded or electronic communication,includingpublic media.

(b)(1) A copy or recording of an advertisement or communication shall be kept for threeyears

afterits last dissemination alongwitha record ofwhenand where it was used. An electronic

advertisementor communication shall be copiedonceevery three months on a compact disc or

similartechnology and kept for threeyearsafter its last dissemination.

(2)A lawyer shall complywiththe mandatory filing requirement of Practice Book Section 2-

28A.

(c)A lawyer shall not give anything ofvalueto a person for recommendingthelawyer'sservices,except that a lawyer may

(1)pay thereasonablecost of advertisements or communications permitted by this Rule;

(2)pay the usualchargesof anot-for-profitorqualifiedlawyerreferralservice. Aqualified

lawyer referralservice is a lawyerreferralservice that hasbeenapproved by an appropriate

regulatory authority;

(3)pay for a law practice inaccordancewithRule 1.17.

(d)Any advertisement or communicationmadepursuant to this Rule shall include thenameof at

leastone lawyer admitted in Connecticut responsible for its content. In thecaseoftelevision

advertisements,the name,addressand telephone number of the lawyer admitted in Connecticut

shallbe displayed inbold printforfifteensecondsor the duration of the commercial, whichever

isless,and shall be prominent enough to be readable.

(e) Advertisements on the electronic media such as television and radio may contain thesame

factualinformationandillustrationsas permitted in advertisements in theprintmedia.

(f)Every advertisement andwrittencommunication that containsinformationabout the lawyer's

fee,includingthoseindicatingthat the charging of a fee is contingent on outcome, or that no fee

willbe charged in theabsenceof a recovery, or that the feewill be apercentageof the recovery,

shalldisclose whether and to what extent the clientwil l be responsible for any courtcostsand

expensesoflitigation.The disclosure concerning courtcostsandexpensesoflitigationshall be

inthesameprintsize and type as the informationregarding the lawyer's fee and, i f broadcast,

shallappearfor thesameduration as theinformationregarding the lawyer's fee.I ftheinformationregarding the fee is spoken, the disclosure concerning courtcostsandexpensesof

litigationshall also be spoken.

(g)A lawyer who advertises a specific fee orrangeoffeesfor a particular service shall honor the

advertisedfee orrangeoffeesfor atleastninetydays unlessthe advertisement specifies a shorter

period;provided that, for advertisements in theyellowpagesoftelephone directories or other

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medianot published morefrequentlythan annually, the advertised fee orrangeoffeesshall behonored for nolessthan one yearfollowingpublication.

(h)No lawyers shall directly orindirectlypay all or part of the cost of an advertisement by a

lawyernot in thesamef i rmunlessthe advertisement disclosesthenameandaddressofthenonadvertising lawyer, and whether the advertising lawyer may refer anycasereceived through

theadvertisement to the nonadvertising lawyer.

(i)Thefollowinginformationin advertisements andwrittencommunications shall be presumed

not to violate the provisions of Rule 7.1:(1)Subjectto the requirements of Rule 7.3, thenameofthe lawyer or lawf i rm alistingoflawyersassociatedwiththe f i rm officeaddressesand telephone numbers, officeand telephoneservicehours, fax numbers, website and e-mailaddressesand domainnames,and a designation

suchas "attorney" or "law firm."

(2)Date of admission to the Connecticut bar and any otherbarsand alistingof federal courts

andjurisdictionswhere the lawyer is licensed to practice.(3)Technical and professionallicensesgranted by thestateor other recognized licensing

authorities.

(4)Foreignlanguageability.

(5)Fields oflawinwhichthe lawyer practices or is designated, subject to the requirements of

Rule 7.4, or iscertifiedpursuant to Rule 7.4A.

(6)Prepaid or group legal service plans inwhichthe lawyer participates.

(7)Acceptance of creditcards.

(8)Fee forinitialconsultation and fee schedule.

(9)Alistingof thenameand geographic location of a lawyer or law firm as asponsorofapublic

serviceannouncement or charitable,civicor community program or event.

10)Nothing in this Rule prohibits a lawyer or law firm frompermittingthe inclusion in the lawdirectories intendedprimarilyfor the useofthelegal profession of suchinformationas hastraditionallybeenincluded inthesepublications.

(j)Notwithstanding the provisions of subsection (d), a lawyer and service may participate in an

internet-basedclient to lawyer matching service provided the service otherwise complieswith

theRules of Professional Conduct. I fthe service provides an exclusive referral to a lawyer or law

firm fora particular practiceareain a particular geographical region, then the service must

complywithsubsection (d).

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OFFICIAL COMMENTARY

Toassistthe public in learning about and obtaining legal services, lawyers should be allowed to

makeknowntheir services notonlythrough reputation but also through organizedinformation

campaignsin theformofadvertising.Advertisinginvolves an activequestfor clients, contrary to

thetraditionthat a lawyer should notseekclientele. However, the public's need to know about

legalservices can befulfilledin part through advertising. This need isparticularlyacutein the

caseofpersonsof moderatemeanswhohavenotmadeextensive use oflegalservices. The

interestin expanding publicinformationabout legal services ought to prevail over considerations

oftradition.Nevertheless, advertising by lawyers entails therisk ofpractices that are misleading

or overreaching.

ThisRule permits public dissemination ofinformationconcerning a lawyer'snameorf i rmname,address,emailaddress,website, and telephone number; the kinds of services the lawyer will

undertake;thebasisonwhichthe lawyer'sfeesare determined,includingprices for specific

servicesand payment and credit arrangements; whether and to what extent the clientwil lberesponsiblefor any courtcostsandexpensesoflitigation;lawyer'sforeignlanguage ability;

namesof referencesand,withtheir consent,namesof clients regularly represented; and other

informationthat mightinvitethe attention ofthoseseeking legalassistance.

Questionsofeffectivenessandtastein advertising are matters of speculation and subjective

judgment. Somejurisdictionshavehad extensiveprohibitionsagainst television advertising and

otherforms of advertising, against advertising going beyond specified facts about a lawyer, or

against"undignified"advertising.Television,the Internet, and otherformsof electronic

communicationare [is]now [oneof] among the mostpowerfulmedia for gettinginformationto

thepublic,particularlypersonsoflow and moderate income;prohibitingtelevision,Internet, andotherforms of electronic advertising, therefore,wouldimpede theflowofinformationabout

legalservices to manysectorso f thepublic.Limitingtheinformationthat may be advertised has

asimilareffectandassumesthat the bar can accurately forecast thekindofinformationthat the

publicwouldregard as relevant.

Neitherthis Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to

membersof aclassinclassactionlitigation.

RecordofAdvertising.Subsection (b) requires that a record of the content and use of

advertising be kept in order tofacilitateenforcement of this Rule. Itdoesnot require thatadvertisingbe subject to reviewpriorto dissemination. Such a requirementwouldbe

burdensomeand expensive relative to its possible benefits, and may be ofdoubtful

constitutionality.

PayingOthers to Recommend aLawyer. Except as permitted under subsection c) T)- c) 3),lawyers are not permitted to pay others forrecommending the lawyer's services or for

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channeling professionalworkin a manner that violates Rule7.3. A communication contains arecommendation i f itendorsesor vouches for a lawyer'scredentials,abilities, competence,character,or other professional qualities.Subsection (c)(1), however, allows a lawyer to pay

for advertising and communications permitted by thisRule,including thecostsofprint

directory listings, on-line directory listings, newspaper ads, television and radio airtime,

domain-nameregistrations, sponsorshipfees,ads, Internet-based advertisements, and

groupadvertising.Alawyer may compensate employees, agentsand vendors who areengagedto provide marketing or client development services, such as publicists, public-

relations personnel, business development staff and website designers.Moreover, a lawyer

may pay others for generating client leads, such as Internet-based client leads, as long as the lead

generatordoesnot recommend the lawyer, any payment to the lead generator is consistent with

Rules1.5(e)(divisionof fees) and5.4(professional independence ofthelawyer),and the leadgenerator'scommunications are consistent withRule7.1(communications concerning alawyer's services) and subsection (p. To complywithRule7.1,a lawyer must not pay a lead

generatorthatstates,implies, orcreatesareasonableimpression that it is recommending the

lawyer,is making thereferralwithoutpayment fromthe lawyer, or has analyzed aperson'slegal

problems when determiningwhichlawyer should receive thereferral.See also Rule 5.3 for the

(dutiesof lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a)(dutyto avoid violating the Rules through the acts of another).

Alawyer may pay the usualchargesof a legal service plan or anot-for-profitorqualifiedlawyer

referralservice. A legal service plan is a prepaid or group legal service plan or a similar delivery

systemthatassists[prospective clients] people whoseektosecurelegal representation. A lawyer

referralservice, on the other hand, is any organization that holdsitselfout to the public as a

lawyer referralservice. Suchreferralservices are understood by [laypersons] the public to be

consumer-orientedorganizations that provide unbiased referrals to lawyerswithappropriate

experiencein the subject matter ofthe representation andaffordother client protections, such as

complaintprocedures or malpractice insurance requirements. Consequently, this Ruleonly

permits a lawyer to pay the usualchargesof anot-for-profitorqualifiedlawyerreferralservice.Aqualifiedlawyer referral service is one that is approved by an appropriate regulatory authority

asaffordingadequateprotections for [prospective clients] thepublic.See e.g., the American Bar

Association'sModelSupreme Court Rules Governing Lawyer Referral Services andModel

Lawyer ReferralandInformationServiceQualityAssurance Act(requiringthat organizations

that areidentifiedas lawyerreferralservices (i)permit theparticipationofalllawyers who are

licensedandeligibleto practice in thejurisdictionand who meetreasonableobjectiveeligibility

requirementsas may be established by thereferralserviceforthe protection of [prospective

clients]thepublic;(ii)requireeachparticipatinglawyer to carry reasonably adequatemalpractice

insurance;(iii)act reasonably toassessclient satisfaction andaddressclient complaints; and(iv)

donot make referrals [prospective clients] to lawyers who own,operateor are employed by the

referralservice.)

Alawyer whoacceptsassignmentsor referralsfroma legal service plan or referralsfroma

lawyer referralservice must act reasonably toassurethat the activities of the plan or service are

compatiblewiththe lawyer's professionalobligations.See Rule 5.3. Legal service plans and

lawyer referralservices may communicatewith [prospective clients] thepublic,but such

communicationmust be inconformitywiththeseRules. Thus, advertising must not be false or

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misleading, aswouldbe thecasei fthe communications ofagroup advertising program or a

grouplegalservicesplanwouldmislead [prospective clients] the public tothinkthat it was a

lawyer referralservice sponsored by astateagencyor bar association. Nor could the lawyer

allowin-person, telephonic, or real-timecontactsthatwouldviolate Rule 7.3.

Rule7.3. [Personal Contact with Prospective] Solicitation of Clients

(a) A lawyer shall not initiate personal, livetelephone, or real-time electronic contact, including

telemarketing contact[,witha prospective client]forthepurposeofobtainingprofessional

employment, except in thefollowing circumstances:

(1) I fthe [prospectiveclient]targetofthesolicitationis a close friend,relative, former client oronewhom the lawyer reasonably believes to be a client;

(2)Under theauspicesof a public or charitable legalservicesorganization;

(3)Under theauspicesof a bonafidepolitical,social,civic,fraternal, employee ortradeorganization whosepurposesinclude but are notlimitedtoprovidingor recommending legal

services, i fthe legalservicesare related to theprincipalpurposesofthe organization;

(4) I fthe prospective client is abusinessorganization, anot-for-profitorganization or

governmental body and the lawyerseeksto provideservicesrelated to the organization.

(b)A lawyer shall not contact, orsendawrittenor electronic communication we had a typohere,

didn'twe!a prospective client]for thepurposeofobtainingprofessional employment if:

(1)The lawyer knows or reasonably should know that the physical, emotional or mentalstateof

thepersonmakesitunlikelythat the personwould exercise reasonablejudgmentin employing alawyer;

(2)It hasbeen madeknown to the lawyer that the persondoesnot want to receive such

communicationsfromthe lawyer;

(3)The communication involves coercion,duress,fraud,overreaching,harassment,intimidation

or undue influence;

(4)Thewrittencommunicationconcernsa specific matter and the lawyer knows or reasonably

should know that the person to whom the communication is directed isrepresentedby a lawyer

inthe matter; or

(5)Thewrittenor electronic communicationconcernsan action for personal injuryorwrongful

deathor otherwiserelatesto an accident ordisasterinvolvingthe person to whom the

communicationisaddressedor a relativeofthat person,unlessthe accident ordisasteroccurred

morethanfortydaysprior to themailingofthe communication.

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(c)Everywrittencommunication, aswellas any communication by audio or video recording, or

otherelectronicmeans,usedby a lawyerfor thepurposeofobtainingprofessional employment

from[a prospective client]anyone loiownto be inneedoflegalservicesin a particular matter,

mustbe clearly and prominently labeled"AdvertisingMaterial"in red ink on thefirstpageof

anywrittencommunication and the lowerleftcorner of the outside envelope or container, i fany,

andat the beginning and ending of any communication by audio or video recording or other

electronicmeans.I fthewrittencommunication is in the formofa self-mailingbrochure orpamphlet,the label"AdvertisingMaterial"in red ink shallappearon theaddresspanel of the

brochureor pamphlet. Brochures solicited by clients or prospective clientsneednot contain such

mark. No reference shall bemadein the communication to the communication having anykind

ofapprovalfromthe Connecticut bar.Writtencommunications mailed to prospective clients

shallbesentonly by regular UnitedStatesmail,not by registeredmailor other forms of

restricted delivery.

(d)Thefirstsentenceof anywrittencommunication concerning a specific matter shall be: "I f

youhavealready retained a lawyer for this matter,pleasedisregard this letter."

(e) Awrittencommunication seeking employment by a specific prospective client in a specificmattershall not reveal on the envelope, or on the outside of aself-mailingbrochure or pamphlet,

thenature of the client's legal problem.

(f) I fa contract for representation is mailedwiththe communication, the top ofeachpageof the

contractshall be marked "Sample" inboldletters in red ink in a typesizeonesizelarger than the

largesttypeusedin the contract and the words "Do Not Sign" inbold letters shallappearon the

clientsignature line.

(g)Writtencommunications shall be on letter-sizedpaperrather than legal-sizedpaperand shall

not bemadetoresemblelegal pleadings or other legal documents. This provisiondoesnot

precludethemailingof brochures and pamphlets.

(h) I fa lawyer other than the lawyer whosenameor signatureappearson the communicationwill

actuallyhandle thecaseor matter, or i fthecaseor matter willbe referred to another lawyer or

law f i rm anywrittencommunication concerning a specific matter shall include astatementsoadvisingthe client.

(i)Notwithstanding the prohibitions in subsection (a), a lawyer may participatewitha prepaid or

group legal service plan operated by an organization not owned or directed by the lawyerwhich

usesin-person or telephone contact tosolicitmemberships or subscriptions for the planfrom

personswho are not known toneedlegalservicesin a particular matter covered by the plan.

OFFICIAL COMMENTARY

A solicitationis a targeted communicationinitiatedby the lawyer that is directed to a specific

personand that offers to provide, or can reasonably be understood asofferingto provide, legal

services.In contrast, a lawyer's communicationtypicallydoesnot constitute asolicitation if itis

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TechnologyandClientDevelopment

directedto the generalpublic,such as through abillboard,an Internetbanneradvertisement, a

websiteor atelevisioncommercial,or i f itis inresponseto arequestforinformationor is

automaticallygenerated inresponseto Internetsearches.

Unrestrictedsolicitationinvolvesdefinitesocial harms.Amongtheseareharassment,

overreaching,provocationof nuisance litigationandschemesfor systematic fabricationof

claims,all ofwhichwere experiencedpriorto adoption ofrestrictionsonsolicitation.Measuresreasonablydesigned tosuppress theseharms areconstitutionally legitimate.At thesametime,

measuresgoing beyond realization of suchobjectiveswouldappearto beinvalidunder relevantdecisionsoftheUnitedStatesSupreme Court.

Thepotential for abuse inherent in direct in-person, livetelephone or real-time electronic

solicitation justifies their prohibition, particularlv since lawyers have alternative means of

conveying necessary information to those who may be in need of legal services. In

particular, communications can be mailed or transmitted by email or other electronic

means that do not involve real-time contact and do not violate other laws governing

solicitations. These forms of communications and solicitations make it possible for the

public to be informed about the need for legal services, and about the qualifications ofavailable lawyers and law firms, without subjecting the public to direct in-person,

telephoneor real-time electronic persuasion that may overwhelm a person's judgment.

The use of general advertising andwritten,recorded and electronic communications to transmit

informationfromlawyer to [prospectiveclient]thepublic,rather than direct in-person,live

telephone, or real-time electronic contact,wil lhelp toassurethat theinformation flowscleanly

aswellasfreely.The contents of advertisements and communications permitted under Rule 7.2

can be permanently recorded so that they cannot be disputed and may be shared withothers who

knowthelawyer.This potentialfor informalreview isitself likelyto help guard against

statementsand claims thatmightconstitute false and misleading communications, inviolationof

Rule7.1.The contents ofdirectin-person,livetelephone, or real-time electronic conversations[betweena lawyer to a prospectiveclient]contact can be disputed and are notsubjectto athird-party scrutiny.Consequently, they are much morelikelyto approach (and occasionally cross) the

dividinglinebetweenaccuraterepresentations andthosethat are false and misleading.

Thereis farlesslikelihood that a lawyer wouldengagein abusive practices against a

formerclient, or a person with whom the lawyer hasclosepersonal or family relationship,

orin situations in which the lawyer is motivated by considerations other than the lawyer's

pecuniarygain. Nor is there a serious potential for abuse when the person contacted is a

lawyer.Consequently, the general prohibition inRule7.3(a) and the requirements ofRule

7.3(c)are not applicable inthosesituations. Also, nothing in this Commentary is intended

toprohibit a lawyer from participating in constitutionally protected activities ofpublicorcharitablelegal service organizations or bona fide political, social, civic, fraternal,

employeeor trade organizationswhosepurposes include providing or recommending legal

services to its their members or beneficiaries.

Indeterminingwhether a contact is permissible under Rule 7.3 (b), it is relevant to consider the

timeand circumstances underwhichthe contact isinitiated.For example, a person undergoing

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active medical treatment for traumaticinjuryisunlikelyto be in an emotionalstateinwhich

reasonablejudgment aboutemployinga lawyer can be exercised. Moreover,i faftersending a

letter or other communication to a [client]member of the public as permitted by Rule 7.2 the

lawyerreceives noresponse,anyfurthereffortto communicatewiththe [prospectiveclient]

personmay violate the provisions ofRule7.3 (b).

Therequirement in Rule 7.3 (c) that certain communications be marked"AdvertisingMaterial"doesnot apply to communicationssentinresponsetorequestsof potential clients or their

spokespersonsorsponsors.General announcements by lawyers,includingchangesin personnel

orofficelocation,do not constitute communicationssolicitingprofessional employmentfroma

clientloiownto be in need oflegalservices withinthe meaning of this Rule.ThisRule is not intended toprohibita lawyerfromcontacting representatives of organizations or

groupsthat may be interested in establishing a group or prepaid legal planfortheir members,

insureds,beneficiaries or otherthirdpartiesforthepuiposeofinformingsuch entitiesoftheavailabilityof and details concerning the plan or arrangement whichthe lawyer or lawyer's f i rmiswillingtooffer.Thisformof communication is not directed to [a prospective client]people

whoare seeking legal services for themselves. Rather, i t is usuallyaddressedto anindividualactingin afiduciarycapacity seeking a supplier oflegalservices for others who may, i fthey

choose,become prospective clients of the lawyer. Underthesecircumstances, theactivity which

thelawyer undertakes in communicatingwithsuch representatives and the type ofinformation

transmitted to the individualarefunctionally similarto andservethesamepurpose as advertising

permitted under Rule 7.2. Subsection (i)ofthis Rulewouldpermit an attorney to participatewith

anorganizationwhichusespersonal contact tosolicitmembers for its group or prepaid legal

serviceplan, provided that the personal contact is not undertaken by any lawyer whowouldbe a

provider oflegalservices through the plan.

Subsection(i) of thisRulepermits a lawyer to participate with an organization which usespersonal contact to solicit members for its group or prepaid legal service plan, providedthatthe personal contact is not undertaken by any lawyer who would be a provider of legal

servicesthrough the plan. The organization must not be owned by or directed (whether as

manageror otherwise) by any lawyer or lawfirmthat participates in the plan. For

example,subsection (i) would not permit a lawyer to create an organization controlled

directly or indirectly by the lawyer and use the organization for the in-person ortelephone

solicitationof legal employment of the lawyer through memberships in the plan or

otherwise.The communication permitted bytheseorganizations also must not be directed

toa person known to need legal services in aparticularmatter, but is to be designed to

informpotential plan members generally of another means of affordable legal services.

Lawyerswho participate in a legal service plan must reasonably assure that the plansponsorsare in compliance with Rules 7.1, 7.2 and 7.3(b). See 8.4(a).

ACTIVE/7.1507/MSTOV ALL/4354169v1 18


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Summary and Explanation of20/20Amendments to the ConnecticutRules

ProfessionalConduct reChoiceof Law

Previously adopted aschanges to theModelRules ofProfessionalConduct at the

ABAHouse of Delegates February2 13 meeting

The20/20 Sub-Committee has examined the ABA's February2013amendment oftheCommentary to Rule 8.5 (Disciplinary authority; choice of law)ofthe Model Rules ofProfessionalConduct MRPC) and concludes that the Commentary to Rule 8.5 of theConnecticutRules of Professional Conduct (RPC) should be similarly amended.

Theproposed amendment would add the following language to the Commentary to

Rule 8.5: "With respect to conflicts of interest, in determining a lawyer's reasonable

beliefunder paragraph (b)(2), a written agreement between the lawyer and client that

reasonablyspecifies a particular jurisdiction as within the scope of that paragraph may

beconsidered if the agreement was obtained with the client's informed consent

confirmed in the agreement."

By giving some weight to an agreement between lawyer and client to be bound by the

conflict rules of a particular jurisdiction, the proposed amendment would provide lawyers

(and clients) with some guidance and predictability in regard to choice of law problems

in applying rules of professional conduct inmulti-jurisdictionalmatters.


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ProposedAmendments to Rules of ProfessionalConduct re Conflictsof Law

Changesto:

(a) the Comments to Rule 8.5 (Disciplinary Authority; Choice of Law)

[Deletions and brackets]; additions underlined.

(a)Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to

thedisciplinary authority of this jurisdiction, regardless of where the lawyer's conduct

occurs.A lawyer not admitted in this jurisdiction is also subject to the disciplinary

authorityof this jurisdiction if the lawyer provides or offers to provide any legal services

inthis jurisdiction. A lawyer may be subject to the disciplinary authority of both this

jurisdictionand another jurisdiction fo r the same conduct.(b)Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the

rulesof professional conduct to be applied shall be as follows:

(1) For conduct in connection with a matter pending before a tribunal, the rules ofthejurisdictionin which the tribunal sits, unless the rulesof the tribunal provide otherwise;and

(2) For any other conduct, the rulesofthe jurisdiction in which the lawyer's conductoccurred,or, if the predominant effectoftheconduct is in a different jurisdiction, therulesof that jurisdiction shall be applied to the conduct. A lawyer shall not be subject todisciplineif the lawyer's conduct conforms to the rules of a jurisdiction in which the

lawyer reasonably believes the predominant effectof the lawyer's conduct will occur.OFFICIAL COMMENTARY

DisciplinaryAuthority. It is longstanding law that the conduct of a lawyer admitted to

practicein this jurisdiction is subject to the disciplinary authority of this jurisdiction.

Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or

offer to provide legal services in this jurisdiction is for the protection of the citizens of

this jurisdiction. Reciprocal enforcement of a jurisdiction's disciplinary findings and

sanctionswill further advance the purposes of this Rule. See Rules 6 and 22. ABAModel Rules for Lawyer Disciplinary Enforcement. A lawyer who is admitted pursuant to

Practice Book Sections 2-16 or2-17et seq. is subject to the disciplinary authority of thisjurisdictionunder Rule 8.5 (a) and appoints an official to be designated by this Court to

receiveservice of process in this jurisdiction. The fact that the lawyer is subject to the

disciplinaryauthority of this jurisdiction may be a factor in determining whether personal

jurisdictionmay be asserted over the lawyer for civil matters.

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Choiceof Law. A lawyer may be potentially subject to more than one set of rules of

professionalconduct which impose different obligations. The lawyer may be licensed to

practice in more than one jurisdiction with differing rules, or may be admitted to practice

beforea particular court with rules that differ from those of the jurisdiction or jurisdictions

inwhich the lawyer is licensed to practice. Additionally, the lawyer's conduct may

involvesignificant contacts with more than one jurisdiction.

Subsection (b) seeks to resolve such potential conflicts. Its premise is that minimizing

conflicts between rules, as well as uncertainty about which rules are applicable, is in the

best interest of both clients and the profession (as well as the bodies having authority to

regulatethe profession). Accordingly, it takes the approach of (i) providing that any

particular conduct of a lawyer shall be subject to only one set of rules of professional

conduct and (ii) making the determination of which set of rules applies to particular

conductas straightforward as possible, consistent with recognition of appropriate

regulatory interests of relevant jurisdictions.

Subsection (b) (1) provides that as to a lawyer's conduct relating to a proceedingpendingbefore a tribunal the lawyer shall be subject only to the rules of the jurisdiction

inwhich the tribunal sits unless the rulesofthe tribunal, including its choice of law rule,provides otherwise. As to all other conduct, including conduct in anticipation of a

proceeding not yet pending before a tribunal, subsection (b) (2) provides that a lawyer

shallbe subject to the rules of the jurisdiction in which the lawyer's conduct occurred,

or, if the predominant effectof theconduct is in another jurisdiction, the rules of thatjur isdict ion shall be applied to the conduct. So long as the lawyer's conduct conforms to

therules of a jurisdiction in which the lawyer reasonably believes the predominant effect

will occur, the lawyer shall not be subject to discipline under this Rule.

Whena lawyer's conduct involves significant contacts with more than one jurisdiction, itmay not be clear whether the predominant effect of the lawyer's conduct will occur in a

jur isdict ion other than the one in which the conduct occurred. So long as the lawyer's

conductconforms to the rules of a jurisdiction in which the lawyer reasonably believes

thepredominant effect will occur, the lawyer shall not be subject to discipline under this

Rule. With respect to conflicts of interest, in determining a lawyer's reasonable belief

undersubsection (b)(2), a written agreement between the lawyer and client that

reasonablyspecifies a particular jurisdiction as within the scope of that paragraph may

beconsidered if the agreement was obtained with the client's informed consent

confirmed in the agreement.

If two admitting jurisdictions were to proceed against a lawyer for the same conduct,theyshould, applying this Rule, identify the same governing ethics rules. They should

take all appropriate steps to see that they do apply the same rule to the same conduct,

and in all events should avoid proceeding against a lawyer on the basis of two

inconsistent rules.

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The choice of law provision applies to lawyers engaged in transnational practice, unless

international law, treaties or other agreements between competent regulatory authorities

in the affected jurisdictions provide otherwise.

ACTIVE/7.1507/MSTOVALL/4352998V14


25/32

1 Summary and Explanation of Proposed Amendments to the Connecticut Rules

2 Professional Conduct re Medicinal Marijuana

3

4 As the Committee learned in adopting Informal Opinion 2013-02 (Providing Legal5 Services to Clients Seeking Licenses under the Connecticut Medial Marijuana Law), the

6 legislature's adoption of An Act Concerning the Palliative Use of Marijuana, Public Act

7 12-55, effective Oct. 1, 2012 ("the Act") , creates a dilemma for lawyers. Patients,8 caregiver groups, health professionals and persons interested in business activities

9 under the new law will need, and should be expected to seek, legal advice concerning

10 the requirements of the Act, as well as the operation of a business under the Act. For11 example, individuals or businesses expecting to operate under the Act will need advice12 on, among other things, setting up the appropriate business entity; potential liability they

13 may face; zoning and land use issues; and appropriate record-keeping, a particularly14 thorny issue given the possibility of federal criminal prosecution. See, Mark Dubois,

15 Opinion: Marijuana Moneyball Connecticut Law Tribune, November 26,2013 (copy16 attached) (describing range of topics on which members of the public might seek advice17 about the Act) .

18 But a lawyer advising a client about conduct permitted under the Act runs the risk19 of advising a client about conduct that, while legal under Connecticut law, is illegal20 under federal law. Such conduct could conceivably subject the attorney to discipline

21 under either Rule 1.2 (Scope of Representat ion and Allocation of Authori ty Between

22 Client and Lawye r ) or 8.4 (Misconduct).23 The conclusion to the Committee's Informal Opinion was as follows: "It is our

24 opinion that lawyers may advise clients of the requirements of the Connecticut Palliative

25 Use of Marijuana Act. Lawyers may not assist clients in conduct that is in violation of


26/32

26 federal criminal law. Lawyers should carefully assess where the line is between those

27 functions and not cross it." But what lawyers need to know, of course, is where the line

28 is.

29 Very sight adjustments to Rule1.2 d)and the Official Commentary to Rule 8.4,30 may help lawyers in knowing where that line is.

31 The Committee proposes amending Rule1.2 d) as follows, additions underlined,32 [deletions in brackets]:

33 (d) A lawyer shall not counsel a client to engage, or assist a client, in

34 conduct that the lawyer knows is criminal or fraudulent, but a lawyer may (1)

35 discuss the legal consequences of any proposed course of conduct with a client

36 [and may]; (2) counsel or assist a client to make a good faith effort to determine37 the validity, scope, meaning or applicationofthe law; or (3) counsel or assist a38 client regarding conduct expressly permitted by Connect icut law.

39

40 The Committee proposes changing the second to last paragraph of the

41 Commentary to Rule 1.2as follows:42 . . . [The last clause of s]Subsection (d) 2 ) recognizes that determining the43 validity or interpretation of a statute or regulation may require a course of action

44 involving disobedience of the statute or regulation or of the interpretation placed

45 upon it by governmental authorities. Subsection (d)(3) is intended to permit46 counsel to provide legal services to clients regarding An Act Concerning the

47 Palliat ive Use of Mar i iuana,Public Act 12-55, effective Oct. 1, 2012, without48 being subject to discipline under these Rules, notwithstanding any conflict with

49 federal law.

50

51 The Committee also proposes amending the 8.4 Commentary, by adding, at the

52 end of the second paragraph of the Commentary the following, additions underlined:

53 Counseling or assisting a client with regard to conduct expressly permitted under

54 Connecticut law is not conduct that reflects adversely on a lawyer's fitness,55 notwithstanding any conflict with federal law.

56

57 Full copies of Rules 1.2 and 8.4 showing the proposed amendment in context, are58 attached.

2


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59 Proposed Amendment of Connecticut Rules of Professional Conduct, Rule 1.2 (Scope60 of Representation and Allocation of Authority Between Client and Lawyer), additions

61 underlined, [deletions in brackets]:

62

636465 Rule1.2 (Scope of Representation and Allocation of Authority Between Client and66 Lawyer)

67

68 (a)Subject to subsections (c) and (d), a lawyer shall abide by a client's decisions

69 concerning the objectives of representation and, as required by Rule1.4,shall consult70 with the client as to the means by which they are to be pursued. A lawyer may take

71 such action on behalf of the client as is impliedly authorized to carry out the

72 representation. A lawyer shall abide by a client's decision whether to settle a matter. In

73 a criminal case, the lawyer shall abide by the client's decision, after consultation with

74 the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client

75 will testify. Subject to revocation by the client and to the terms of the contract, a client's76 decision to settle a matter shall be implied where the lawyer is retained to represent the

77 client by a third party obligated under the terms of a contract to provide the client with a

78 defense and indemnity for the loss, and the third party elects to settle a matter without

79 contribution by the client.

80

81 (b)A lawyer's representation of a client, including representation by appointment, does

82 not constitute an endorsement of the client's political, economic, social or moral views

83 or activities.

84

85 (c) A lawyer may limit the scope of the representation if the limitation is reasonable

86 under the circumstances and the client gives informed consent. Such informed consent87 shall not be required when a client cannot be located despite reasonable efforts where

88 the lawyer is retained to represent a client by a third party which is obligated by contract

89 to provide the client with a defense.

90

91 (d)A lawyer shall not counsel a client to engage, or assist a client, in conduct that the

92 lawyer knows is criminal or fraudulent, but a lawyer may (1) discuss the legal

93 consequences of any proposed course of conduct with a client: (2) [and may] counsel or

94 assist a client to make a good faith effort to determine the validity, scope, meaning or

95 application of the law: or (3) counsel or assist a client regarding conduct expressly

,96 permitted by Connect icut law.

97

98

99 OFFICIAL COMMENTARY

100101 Allocation of Authority between Client andLawyer.Subsection (a) confers upon the102 client the ultimate authority to determine the purposes to be served by legal103 representation, within the limits imposed by law and the lawyer's professional

104 obligations. The decisions specified in subsection (a), such as whether to settle a civil

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105 matter, must also be made by the client. See Rule1.4 a) 1) for the lawyer's duty to106 communicate with the client about such decisions. With respect to the means by which107 the client's objectives are to be pursued, the lawyer shall consult with the client as108 required by Rule1.4 a) 2) and may take such action as is impliedly authorized to carry109 out the representation.

110

111 On occasion, however, a lawyer and a client may disagree about the means to be used112 to accomplish the client's objectives. Clients normally defer to the special knowledge113 and skill of their lawyer with respect to the means to be used to accomplish their114 objectives, particularly with respect to technical, legal and tactical matters. Conversely,115 lawyers usually defer to the client regarding such questions as the expense to be116 incurred and concern for third persons who might be adversely affected. Because of the117 varied nature of the matters about which a lawyer and client might disagree and118 because the actions in question may implicate the interests of a tribunal or other119 persons, this Rule does not prescribe how such disagreements are to be resolved.120 Other law, however, may be applicable and should be consulted by the lawyer. The

121 lawyer should also consult with the client and seek a mutually acceptable resolution of

122 the disagreement. If such efforts are unavailing and the lawyer has a fundamental123 disagreement with the client, the lawyer may withdraw from the representation. See124 Rule1.16 b) 4).Conversely, the client may resolve the disagreement by discharging the125 lawyer. See Rule 1.16(a)(3).

126127 At the outset of a representation, the client may authorize the lawyer to take specific

128 action on the client's behalf without further consultation. Absent a material change in

129 circumstances and subject to Rule 1.4, a lawyer may rely on such an advance

130 authorization. The client may, however, revoke such authority at any time.

131

132 In a case in which the client appears to be suffering diminished capacity, the lawyer's

133 duty to abide by the client's decisions is to be guided by reference to Rule 1.14.134

135 IndependencefromClient'sViews or Activities. Legal representation should not be136 denied to people who are unable to afford legal services, or whose cause is

137 controversial or the subject of popular disapproval. By the same token, representing a

138 client does not constitute approval of the client's views or activities.139140 Agreements LimitingScope of Representation.The scope of services to be provided

141 by a lawyer may be limited by agreement with the client or by the terms under which the

142 lawyer's services are made available to the client. For example, when a lawyer has

143 been retained by an insurer to represent an insured, the representation may be limited

144 to matters related to the insurance coverage. A limited representation may be145 appropriate because the client has limited objectives for the representation. In addition,

146 the terms upon which representat ion is undertaken may exclude specific means that

147 might otherwise be used to accomplish the client's objectives. Such limitations may

148 exclude actions that the client thinks are too costly or that the lawyer regards as

149 repugnant or imprudent. Nothing in Rule 1.2 shall be construed to authorize limited150 appearances before any tribunal unless otherwise authorized by law or rule.

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151

152 Although this Rule affords the lawyer and client substantia l latitude to limit the scope of153 representation, the limitation must be reasonable under the circumstances. If, for

154 example, a client's objective is limited to securing general information about the law the155 client needs in order to handle a common and typically uncomplicated legal problem,

156 the lawyer and client may agree that the lawyer's services will be limited to a brief

157 telephone consultation. Such a limitation, however, would not be reasonable if the time158 allotted was not sufficient to yield advice upon which the client could rely. Although an

159 agreement for a limited representation does not exempt a lawyer from the duty to160 provide competent representation, the limitation is a factor to be considered when

161 determining the legal knowledge, skill, thoroughness and preparation reasonably

162 necessary for the representation. See Rule 1.1.

163

164 All agreements concerning a lawyer's representation of a client must accord with the

165 Rules of Professional Conduct and other law. See, e.g., Rules 1.1,1.8and 5.6.166

167 Criminal, Fraudulent and Prohibited Transactions. Subsection (d) prohibits a lawyer

168 from knowingly counseling or assisting a client to commit a crime or fraud. This169 prohibit ion, however, does not preclude the lawyer from giving an honest opinion about

170 the actual consequences that appear likely to result from a client's conduct. Nor does171 the fact that a client uses advice in a course of action that is criminal or fraudulent of172 itself make a lawyer a party to the course of action. There is a critical distinct ion173 between presenting an analysis of legal aspects of questionable conduct and174 recommending the means by which a crime or fraud might be commit ted.175176 When the client's course of action has already begun and is continuing, the lawyer's177 responsibility is especially delicate. The lawyer is required to avoid assisting the client,

178 for example, by drafting or delivering documents that the lawyer knows are fraudulent or179 by suggesting how the wrongdoing might be concealed. A lawyer may not continue180 assisting a client in conduct that the lawyer originally believed legally proper but then181 discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the182 representation ofthe client in the matter. See Rule 1.16(a). In some cases, withdrawal183 alone might be insuffic ient. It may be necessary for the lawyer to give notice of the fact184 of withdrawal and to disaff irm any opinion, document, affirmation or the like. See Rule

185 4.1.

186

187 Where the client is a fiduciary, the lawyer may be charged with special obligations in

188 dealings with a beneficiary.189

190 Subsection (d) applies whether or not the defrauded party is a party to the transaction.191 Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent192 avoidance of tax liability. Subsection (d) does not preclude undertaking a criminal193 defense incident to a general retainer for legal services to a lawful enterprise. [The last194 clause of sJSubsection (d){2} recognizes that determining the validity or interpretation of195 a statute or regulation may require a course of action involving disobedience of the196 statute or regulation or of the interpretation placed upon it by governmental authorit ies.

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197 Subsection (d)(3) is intended to permit counsel to provide legal services to clients

198 regarding An Act Concerning the Palliative Use of Marijuana, Public Act 12-55,effective199 Oct. 1, 2012,without being subject to discipline under these Rules, notwithstanding any200 conflict with federal law.

201

202 If a lawyer comes to know or reasonably should know that a client expects assistance

203 not permitted by the Rules of Professional Conduct or other law or if the lawyer intends204 to act contrary to the client's instructions, the lawyer must consult with the client

205 regarding the limitations on the lawyer's conduct. See Rule 1.4(a)(5).

206

207

208

209

210

211

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212 Proposed amendment of Connecticut Rules of Professional Conduct, Rule 8.4 Official

213 Commentary, additions underlined, [deletions in brackets]:214

215216

217 Rule 8.4 (Misconduct)218219 It is professional misconduct for a lawyer to:220

221 (1)Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or

222 induce another to do so, or do so through the acts of another;

223

224 (2)Commit a criminal act that reflects adversely on the lawyer's honesty,

225 trustworthiness or fitness as a lawyer in other respects;

226

227 (3)Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

228

229 (4) Engage in conduct that is prejudicial to the administration of justice;230

231 (5) State or imply an ability to influence improperly a government agency or official or to

232 achieve results by means that violate the Rules of Professional Conduct or other law; or

233

234 (6) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable

235 rules of judicial conduct or other law.

236

237 OFFICIAL COMMENTARY

238

239 Lawyers are subject to discipl ine when they violate or attempt to violate the Rules of

240 Professional Conduct, knowingly assist or induce another to do so or do so through the241 acts of another, as when they request or instruct an agent to do so on the lawyer's

242 behalf. Subdivision (1), however, does not prohibit a lawyer from advising a client

243 concerning action the client is legally entitled to take.

244

245 Many kinds of illegal conduct reflect adversely on fitness to pract ice law, such as

246 offenses involving fraud and the offense of willful failure to file an income tax return.

247 However, some kinds of offenses carry no such implication. Traditionally, the distinction

248 was drawn in terms of offenses involving "moral turpitude." That concept can be

249 construed to include offenses concerning some matters of personal morality, such as

250 adultery and comparable offenses, that have no specific connection to fitness for the

251 practice of law. Although a lawyer is personally answerable to the entire criminal law, a252 lawyer should be professionally answerable only for offenses that indicate lack of those

253 characteristics relevant to law practice. Offenses involving violence, dishonesty, breach

254 of trust, or serious interference with the administration of just ice are in that category. A

255 pattern of repeated offenses, even ones of minor significance when considered

256 separately, can indicate indifference to legal obligation. Counseling or assisting a client

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257 with regard to conduct expressly permitted under Connecticut law is not conduct that

258 reflects adversely on a lawyer's fitness notwithstanding any conflict with federal law.

259

260 A lawyer who, in the course of representing a client, knowingly manifests by words or

261 conduct bias or prejudice based upon race, sex, religion, national origin, disability, age,

262 sexual orientation or socioeconomic status, violates subdivision (4) when such actions

263 are prejudicial to the administration of justice. Legitimate advocacy respecting the264 foregoing factors does not violate subdivision (4).

265

266 A lawyer may refuse to comply with an obligat ion imposed by law upon a good faith

267 belief that no valid obligation exists. The provisions of Rule1.2 d)concerning a good268 faith challenge to the validity, scope, meaning or application of the law apply to

269 challenges of legal regulat ion of the practice of law.

270

271 Lawyers holding public office assume legal responsibilities going beyond those of other

272 citizens. A lawyer's abuse of public office can suggest an inability to fulfill the

273 professional role of lawyers. The same is true of abuse of positions of private trust such

274 as trustee, executor, administrator, guardian, agent and officer, director or manager of a275 corporation or other organization.276

277

Letter to President Kimberly Knox 122013 With Attachments

Documents

Transcript of Letter to President Kimberly Knox 122013 With Attachments