09/22/2016
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: AF 09-0688
AF 09-0688
_________________
IN RE THE RULES OF PROFESSIONAL
ORDER
CONDUCT
_________________
The State Bar of Montana Board of Trustees petitioned this Court to revise
portions of the Montana Rules of Professional Conduct to provide guidance regarding
lawyers’ use of technology. The proposed revisions affect the Preamble, Rule 1.0 on
Terminology defining “writing,” Rule 1.6 on Confidentiality, and Rule 4.4(b) on Respect
for Rights of Third Persons. The Court allowed a public comment period on the
proposals.
At a September 20, 2016 public meeting, the Court voted to adopt the revisions as
proposed by the Montana Board of Trustees. In addition, the Court discussed a new
subsection to Rule 4.4, proposed by the State Bar Ethics Committee. The Court voted to
accept public comment on that proposed new subsection 4.4(c), which would read as
follows:
A lawyer shall not knowingly access or use electronically stored
information in a communication or document received from another
lawyer, for the purpose of discovering protected work product, privileged
or other confidential information unless the receiving lawyer has obtained
permission to do so from the author of the communication or document.
Communication or document as used in this rule excludes documents
produced in discovery and information that is the subject of criminal
investigation.
IT IS ORDERED that the above-referenced revisions to the Preamble, Rule 1.0,
Rule 1.6, and Rule 4.4(b) of the Montana Rules of Professional Conduct are ADOPTED,
effective January 1, 2017. The revisions are reflected in the complete text of the
Montana Rules of Professional Conduct which are appended to this Order.
IT IS FURTHER ORDERED that the Court will accept public comment on the
above proposed new 4.4(c) of the Montana Rules of Professional Conduct. The Court
directs the State Bar’s Ethics and Technology Committees to confer and submit
additional comment on the proposal within the time allowed. Comments must be filed in
writing with the Clerk of this Court on or before October 31, 2016.
This Order shall be published on the Montana Supreme Court website and notice
of this Order shall be posted on the website of the State Bar of Montana and in the next
available issue of the Montana Lawyer.
The Clerk is directed to provide copies of this Order to the Montana State Law
Library, the State Bar of Montana, and the Chairs of the Ethics and Technology
Committees.
Dated this 22nd day of September, 2016.
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
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MONTANA RULES OF PROFESSIONAL CONDUCT
PREAMBLE: A LAWYER’S RESPONSIBILITIES
(1) A lawyer shall always pursue the truth.
(2) A lawyer, as a member of the legal profession, is a representative of clients, an officer
of the legal system and a public citizen having special responsibility for the quality of
justice.
(3) As a representative of clients, a lawyer performs various functions. In performance of
any functions a lawyer shall behave consistently with the requirements of honest dealings
with others. As advisor, a lawyer endeavors to provide a client with an informed
understanding of the client’s legal rights and obligations and explains their practical
implications. As advocate, a lawyer asserts the client’s position under the rules of the
adversary system. As negotiator, a lawyer seeks a result advantageous to the client but
consistent with requirements under these Rules of honest dealings with others. As an
evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them.
(4) In addition to these representational functions, a lawyer may serve as a third-party
neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.
Some of these Rules apply directly to lawyers who are or have served as third-party
neutrals. See, e.g., Rules 1.12 and 2.3. In addition, there are Rules that apply to lawyers
who are not active in the practice of law or to practicing lawyers even when they are
acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the
conduct of a business is subject to discipline for engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.
(5) In all professional functions a lawyer should be competent, prompt and diligent.
Competence implies an obligation to keep abreast of changes in the law and its practice,
including the benefits and risks associated with relevant technology. A lawyer should
maintain communication with a client concerning the representation. A lawyer should
keep in confidence information relating to representation of a client except so far as
disclosure is required or permitted by the Rules of Professional Conduct or other law.
(6) A lawyer’s conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer’s business and personal affairs. A lawyer
should use the law’s procedures only for legitimate purposes and not to harass or
intimidate others. A lawyer should demonstrate respect for the legal system and for those
who serve it, including judges, other lawyers and public officials. While it is a lawyer’s
duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s
duty to uphold legal process.
(7) As a public citizen, a lawyer should seek improvement of the law, access to the legal
system, the administration of justice and the quality of service rendered by the legal
profession. As a member of a learned profession, a lawyer should cultivate knowledge of
the law beyond its use for clients, employ that knowledge in reform of the law and work
to strengthen legal education. In addition, a lawyer should further the public’s
understanding of and confidence in the rule of law and the justice system because legal
institutions in a constitutional democracy depend on popular participation and support to
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maintain their authority. A lawyer should be mindful of deficiencies in the administration
of justice and of the fact that the poor, and sometimes persons who are not poor, cannot
afford adequate legal assistance. Therefore, all lawyers should devote professional time
and resources and use civic influence to ensure equal access to our system of justice for
all those who because of economic or social barriers cannot afford or secure adequate
legal counsel. A lawyer should aid the legal profession in pursuing these objectives and
should help the bar regulate itself in the public interest.
(8) Many of a lawyer’s professional responsibilities are prescribed in the Rules of
Professional Conduct, as well as substantive and procedural law. However, a lawyer is
also guided by personal conscience and the approbation of professional peers. A lawyer
should strive to attain the highest level of skill, to improve the law and the legal
profession and to exemplify the legal profession’s ideals of public service.
(9) A lawyer’s responsibilities as a representative of clients, an officer of the legal system
and a public citizen are harmonious. A lawyer can be a dedicated advocate on behalf of a
client, even an unpopular one, but in doing so must comply with these Rules of
Professional Conduct. So also, a lawyer can be sure that preserving client confidences
ordinarily serves the public interest because people are more likely to seek legal advice,
and thereby heed their legal obligations, when they know their communications will be
private.
(10) In the nature of law practice, however, conflicting responsibilities are encountered.
Virtually all difficult ethical problems arise from conflict between a lawyer’s
responsibilities to clients, to the legal system and to the lawyer’s own interest. The Rules
of Professional Conduct often prescribe terms for resolving such conflicts. Within the
framework of these Rules, however, many difficult issues of professional discretion can
arise. Such issues must be resolved through the exercise of sensitive professional and
moral judgment guided by the basic principles underlying the Rules. These principles
include the lawyer’s obligation to protect and pursue a client’s legitimate interests, within
the bounds of the law, while maintaining a professional, courteous and civil attitude
toward all persons involved in the legal system.
(11) The legal profession is self-governing. Although other professions also have been
granted powers of self-government, the legal profession is unique in this respect because
of the close relationship between the profession and the processes of government and law
enforcement. This connection is manifested in the fact that ultimate authority over the
legal profession is vested in the courts.
(12) Self-regulation helps maintain the legal profession’s independence from government
domination. An independent legal profession is an important force in preserving
government under law, for abuse of legal authority is more readily challenged by a
profession whose members are not dependent on government for the right to practice.
(13) The legal profession’s relative autonomy carries with it special responsibilities of
self-government. The profession has a responsibility to assure that its regulations are
conceived in the public interest and not in furtherance of parochial or self-interested
concerns of the bar. Every lawyer is responsible for observance of the Rules of
Professional Conduct. A lawyer should also aid in securing their observance by other
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lawyers. Neglect of these responsibilities compromises the independence of the
profession and the public interest which it serves.
(14) Lawyers play a vital role in the preservation of society. The fulfillment of this role
requires an understanding by lawyers of their relationship to our legal system. All
lawyers understand that, as officers of the court, they have a duty to be truthful, which
engenders trust in both the profession and the rule of law. The Rules of Professional
Conduct, when properly applied, serve to define that relationship. Trust in the integrity of
the system and those who operate it is a basic necessity of the rule of law; accordingly
truthfulness must be the hallmark of the legal profession, and the stock-in-trade of all
lawyers.
(15) The Rules of Professional Conduct are rules of reason. They should be interpreted
with reference to the purposes of legal representation and of the law itself. Some of the
Rules are imperatives, cast in the terms “shall” or “shall not.” These define proper
conduct for purposes of professional discipline. Others, generally cast in the term “may,”
are permissive and define areas under the Rules in which the lawyer has discretion to
exercise professional judgment. No disciplinary action should be taken when the lawyer
chooses not to act or acts within the bounds of such discretion. Other Rules define the
nature of relationships between the lawyer and others. The Rules are thus partly
obligatory and disciplinary and partly constitutive and descriptive in that they define a
lawyer’s professional role. Many of the Comments use the term “should.” Comments do
not add obligations to the Rules but provide guidance for practicing in compliance with
the Rules.
(16) The Rules presuppose a larger legal context shaping the lawyer’s role. That context
includes court rules and statutes relating to matters of licensure, laws defining specific
obligations of lawyers and substantive and procedural law in general. The Comments are
sometimes used to alert lawyers to their responsibilities under such other law.
(17) Compliance with the Rules, as with all law in an open society, depends primarily
upon understanding and voluntary compliance, secondarily upon reinforcement by peer
and public opinion and finally, when necessary, upon enforcement through disciplinary
proceedings. The Rules do not, however, exhaust the moral and ethical considerations
that should inform a lawyer, for no worthwhile human activity can be completely defined
by legal rules. The Rules simply provide a framework for the ethical practice of law.
(18) Furthermore, for purposes of determining the lawyer’s authority and responsibility,
principles of substantive law external to these Rules determine whether a client-lawyer
relationship exists. Most of the duties flowing from the client-lawyer relationship attach
only after the client has requested the lawyer to render legal services and the lawyer has
agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6,
that attach when the lawyer agrees to consider whether a client-lawyer relationship shall
be established. See Rule 1.20. Whether a client-lawyer relationship exists for any specific
purpose can depend on the circumstances and may be a question of fact.
(19) Under various legal provisions, including constitutional, statutory and common law,
the responsibilities of government lawyers may include authority concerning legal
matters that ordinarily reposes in the client in private client-lawyer relationships. For
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example, a lawyer for a government agency may have authority on behalf of the
government to decide upon settlement or whether to appeal from an adverse judgment.
Such authority in various respects is generally vested in the attorney general and the
state’s attorney in state government, and their federal counterparts, and the same may be
true of other government law officers. Also, lawyers under the supervision of these
officers may be authorized to represent several government agencies in
intragovernmental legal controversies in circumstances where a private lawyer could not
represent multiple private clients. These Rules do not abrogate any such authority.
(20) Failure to comply with an obligation or prohibition imposed by a Rule is a basis for
invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a
lawyer’s conduct will be made on the basis of the facts and circumstances as they existed
at the time of the conduct in question and in recognition of the fact that a lawyer often has
to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules
presuppose that whether or not discipline should be imposed for a violation, and the
severity of a sanction, depend on all the circumstances, such as the willfulness and
seriousness of the violation, extenuating factors and whether there have been previous
violations.
(21) Violation of a Rule should not itself give rise to a cause of action against a lawyer
nor should it create any presumption in such a case that a legal duty has been breached. In
addition, violation of a Rule does not necessarily warrant any other nondisciplinary
remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed
to provide guidance to lawyers and to provide a structure for regulating conduct through
disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore,
the purpose of the Rules can be subverted when they are invoked by opposing parties as
procedural weapons. The fact that a Rule provides just basis for self-assessment by a
lawyer of his/her conduct or a basis for sanctioning a lawyer under the disciplinary
process does not imply that an opposing party or lawyer has standing to seek enforcement
of the Rules in a collateral proceeding or transaction outside of the disciplinary process.
RULE 1.0: TERMINOLOGY
(a) “Belief” or “believes” denotes that the person involved actually supposed the fact in
question to be true. A person’s belief may be inferred from circumstances.
(b) “Bona fide” denotes in or with good faith; honestly, openly, and sincerely; without
deceit or fraud.
(c) “Consult” or “consultation” denotes communication of information reasonably
sufficient to permit the client to appreciate the significance of the matter in question.
(d) “Confirmed in writing,” when used in reference to the informed consent of a person,
denotes informed consent that is given in writing by the person or a writing that a lawyer
promptly transmits to the person confirming an oral informed consent. See paragraph (g)
for the definition of “informed consent.” If it is not feasible to obtain or transmit the
writing at the time the person gives informed consent, then the lawyer must obtain or
transmit it within a reasonable time thereafter.
(e) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional
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corporation, sole proprietorship or other association authorized to practice law; or
lawyers employed in a legal services organization or the legal department of a
corporation or other organization.
(f) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or
procedural law of the applicable jurisdiction and has a purpose to deceive.
(g) “Informed consent” denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation about
the material risks of and reasonably available alternatives to the proposed course of
conduct.
(h) “Knowingly,” “known” or “knows” denotes actual knowledge of the fact in question.
A person’s knowledge may be inferred from circumstances.
(i) “Partner” denotes a member of a law partnership, a shareholder in a law firm
organized as a professional corporation, or a member of an association authorized to
practice law.
(j) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes
the conduct of a reasonably prudent and competent lawyer.
(k) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer
denotes that the lawyer believes the matter in question and that the circumstances are
such that the belief is reasonable.
(l) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer
of reasonable prudence and competence would ascertain the matter in question.
(m) “Screened” denotes the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably adequate
under the circumstances to protect information that the isolated lawyer is obligated to
protect under these Rules or other law.
(n) “Substantial” when used in reference to degree or extent denotes a material matter of
clear and weighty importance.
(o) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a
legislative body, administrative agency or other body acting in an adjudicative capacity.
A legislative body, administrative agency or other body acts in an adjudicative capacity
when a neutral official, after the presentation of evidence or legal argument by a party or
parties, will render a binding legal judgment directly affecting a party’s interests in a
particular matter.
(p) “Writing” or “written” denotes a tangible or electronic record of a communication or
representation, including handwriting, typewriting, printing, Photostatting, photography,
audio or video recording, and electronic communications. A “signed” writing includes
the electronic equivalent of a signature, such as an electronic sound, symbol or process,
which is attached to a writing and executed or adopted by a person with the intent to sign
the writing.
CLIENT-LAWYER RELATIONSHIP
RULE 1.1: COMPETENCE
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A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary
for the representation.
RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF
AUTHORITY BETWEEN CLIENT AND LAWYER
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions
concerning the objectives of representation and, as required by Rule 1.4, shall consult
with the client as to the means by which they are to be pursued. A lawyer may take such
action on behalf of the client as is impliedly authorized to carry out the representation. A
lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the
lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea
to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer’s representation of a client, including representation by appointment, does
not constitute an endorsement of the client’s political, economic, social or moral views or
activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable
under the circumstances and the client gives informed consent in writing.
(1) The client’s informed consent must be confirmed in writing unless:
(i) the representation of the client consists solely of telephone consultation;
(ii) the representation is provided by a lawyer employed by a nonprofit
legal services program or participating in a nonprofit court-annexed legal
services program and the lawyer’s representation consists solely of
providing information and advice or the preparation of court-approved
legal forms; or
(iii) the court appoints the attorney for a limited purpose that is set forth in
the appointment order.
(2) If the client gives informed consent in writing signed by the client, there shall
be a presumption that:
(i) the representation is limited to the attorney and the services described in
the writing; and
(ii) the attorney does not represent the client generally or in matters other
than those identified in the writing.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences
of any proposed course of conduct with a client and may counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or application of the
law.
RULE 1.3: DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a client.
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RULE 1.4: COMMUNICATION
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to
which the client’s informed consent, as defined in Rule 1.0(g), is required by these
Rules;
(2) reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct
when the lawyer knows that the client expects assistance not permitted by the
Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.
RULE 1.5: FEES
(a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved
and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation and ability of the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which
the client will be responsible shall be communicated to the client in writing, before or
within a reasonable time after commencing the representation, except when the lawyer
will charge a regularly represented client on the same basis or rate. Any changes in the
basis or rate of the fee or expenses shall also be communicated in writing. This paragraph
does not apply in any matter in which it is reasonably foreseeable that total cost to a
client, including attorney fees, will be $500 or less.
(c) A fee may be contingent on the outcome of the matter for which the service is
rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or
other law. A contingent fee agreement shall be in a writing signed by the client and shall
state the method by which the fee is to be determined, including the percentage or
percentages that shall accrue to the lawyer in the event of settlement, trial or appeal;
litigation and other expenses to be deducted from the recovery; and whether such
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expenses are to be deducted before or after the contingent fee is calculated. The
agreement must clearly notify the client of any expenses for which the client will be
liable whether or not the client is the prevailing party. Upon conclusion of a contingent
fee matter, the lawyer shall provide the client with a written statement stating the
outcome of the matter and, if there is a recovery, showing the remittance to the client and
the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or upon the amount of maintenance or
support or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only
if:
(1) the division is in proportion to the services performed by each lawyer or each
lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will
receive, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
RULE 1.6: CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in order to carry
out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent
the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to secure legal advice about the lawyer’s compliance with these Rules;
(3) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge or
civil claim against the lawyer based upon conduct in which the client was involved
or to respond to allegations in any proceeding concerning the lawyer’s
representation of the client; or
(4) to comply with other law or a court order.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to, information relating to the representation of a
client.
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
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materially limited by the lawyer’s responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a),
a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC
RULES
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire
an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing to the
client in a manner that can be reasonably understood by the client;
(2) in matters in which a lawyer wishes to assert a retaining lien against client
property, papers or materials in the lawyer’s possession to secure payment for the
lawyer’s services and costs advanced relating to such property, papers or
materials, a written agreement for such a lien shall expressly set forth the
limitations contained in paragraph (i)(3);
(3) the client is advised in writing of the desirability of seeking and is given a
reasonable opportunity to seek the advice of independent legal counsel on the
transaction; and
(4) the client gives informed consent, in a writing signed by the client, to the
essential terms of the transaction and the lawyer’s role in the transaction, including
whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the
disadvantage of the client unless the client gives informed consent, except as permitted or
required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary
gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to
the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to
the client. For purposes of this paragraph, related persons include a spouse, child,
grandchild, parent, grandparent or other relative.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or
negotiate an agreement giving the lawyer literary or media rights to a portrayal or account
based in substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending
or contemplated litigation, except that:
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(1) a lawyer may advance court costs and expenses of litigation, the repayment of
which may be contingent on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client;
(3) a lawyer may, for the sole purpose of providing basic living expenses,
guarantee a loan from a regulated financial institution whose usual business
involves making loans if such loan is reasonably needed to enable the client to
withstand delay in litigation that would otherwise put substantial pressure on the
client to settle a case because of financial hardship rather than on the merits,
provided the client remains ultimately liable for repayment of the loan without
regard to the outcome of the litigation and, further provided that neither the lawyer
nor anyone on his/her behalf offers, promises or advertises such financial
assistance before being retained by the client.
(f) A lawyer shall not accept compensation for representing a client from one other than
the client unless:
(1) the client gives written informed consent;
(2) there is no interference with the lawyer’s independence of professional
judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by
Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an
aggregate settlement of the claims of or against the clients, or in a criminal case an
aggregated agreement as to guilty or nolo contendere pleas, unless each client gives
informed consent, in a writing signed by the client. The lawyer’s disclosure shall include
the existence and nature of all the claims or pleas involved and of the participation of
each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer’s liability to a client for
malpractice unless the client is independently represented in making the
agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client
or former client unless that person is advised in writing of the desirability of
seeking and is given a reasonable opportunity to seek the advice of independent
legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except that the lawyer:
(1) may acquire and assert a charging lien only against causes of action or
counterclaims in litigation pursuant to and only to the extent specified in MCA 37-
61-420(2); such a charging lien does not extend to other client property, papers or
materials in the lawyer’s possession, to any matter not in litigation, or to any
matter otherwise not covered by the specific language of MCA 37-61-420(2);
(2) may contract with a client for a reasonable contingent fee in a civil case; and
(3) may not acquire or assert a retaining lien to secure payment due for the
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lawyer’s services against any client property, papers or materials other than those
related to the matter for which payment has not been made and, upon termination
of representation, shall deliver to the client any client property, papers or materials
reasonably necessary to protect the client’s interest in the matter to which the
property, papers or materials relate as provided in Rule 1.16(d).
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual
relationship existed between them when the client-lawyer relationship commenced.
(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a)
through (i) that applies to any one of them shall apply to all of them.
RULE 1.9: DUTIES TO FORMER CLIENTS
(a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client unless the
former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related
matter in which a firm with which the lawyer formerly was associated had previously
represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and
1.9(c) that is material to the matter; unless the former client gives informed
consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former
firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former
client except as these Rules would permit or require with respect to a client, or
when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would
permit or require with respect to a client.
RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE
(a) While lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so by Rules
1.7 or 1.9 unless the prohibition is based on a personal interest of the prohibited lawyer
and does not present a significant risk of materially limiting the representation of the
client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited
from thereafter representing a person with interests materially adverse to those of a client
represented by the formerly associated lawyer and not currently represented by the firm,
unless:
(1) the matter is the same or substantially related to that in which the formerly
associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and
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1.9(c) that is material to the matter.
(c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall
knowingly represent a person in a matter in which that lawyer is disqualified under Rule
1.9 unless:
(1) the personally disqualified lawyer is timely screened from any participation in
the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to any affected former client to enable it to
ascertain compliance with the provisions of this Rule.
(d) A disqualification prescribed by this Rule may be waived by the affected client under
the conditions stated in Rule 1.7.
(e) The disqualification of lawyers associated in a firm with former or current
government lawyers is governed by Rule 1.11.
RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND
CURRENT GOVERNMENT OFFICERS AND EMPLOYEES
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a
public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the
lawyer participated personally and substantially as a public officer or employee,
unless the appropriate government agency gives its informed consent, confirmed
in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a
firm with which that lawyer is associated may knowingly undertake or continue
representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to
enable it to ascertain compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the
lawyer knows is confidential government information about a person acquired when the
lawyer was a public officer or employee, may not represent a private client whose
interests are adverse to that person in a matter in which the information could be used to
the material disadvantage of that person. As used in this Rule, the term “confidential
government information” means information that has been obtained under governmental
authority and which, at the time this Rule is applied, the government is prohibited by law
from disclosing to the public or has a legal privilege not to disclose and which is not
otherwise available to the public. A firm with which that lawyer is associated may
undertake or continue representation in the matter only if the disqualified lawyer is timely
screened from any participation in the matter and is apportioned no part of the fee
therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public
officer or employee:
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(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental employment,
unless the appropriate government agency gives its informed consent,
confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a
party or as lawyer for a party in a matter in which the lawyer is
participating personally and substantially, except that a lawyer serving as a
law clerk to a judge, other adjudicative officer or arbitrator may negotiate
for private employment as permitted by Rule 1.12(b) and subject to the
conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation,
arrest or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate
government agency.
RULE 1.12: FORMER JUDGE, ARBITRATOR, SETTLEMENT MASTER,
MEDIATOR, OR OTHER THIRD-PARTY NEUTRAL
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection
with a matter in which the lawyer participated personally and substantially as a judge or
other adjudicative officer or law clerk to such a person or as an arbitrator, settlement
master, mediator or other third-party neutral, unless all parties to the proceeding give
informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a
party or as lawyer for a party in a matter in which the lawyer is participating personally
and substantially as a judge or other adjudicative officer or as an arbitrator, settlement
master, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge
or other adjudicative officer may negotiate for employment with a party or lawyer
involved in a matter in which the clerk is participating personally and substantially, but
only after the lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in the matter
unless:
(1) the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to
enable them to ascertain compliance with the provisions of this Rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not
prohibited from subsequently representing that party.
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RULE 1.13: ORGANIZATION AS CLIENT
(a) A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person
associated with the organization is engaged in action, intends to act or refuses to act in a
matter related to the representation that is a violation of a legal obligation to the
organization, or a violation of law which reasonably might be imputed to the
organization, and is likely to result in substantial injury to the organization, the lawyer
shall proceed as is reasonably necessary in the best interest of the organization. In
determining how to proceed, the lawyer shall give due consideration to the seriousness of
the violation and its consequences, the scope and nature of the lawyer’s representation,
the responsibility in the organization and the apparent motivation of the person involved,
the policies of the organization concerning such matters and any other relevant
considerations. Any measures taken shall be designed to minimize disruption of the
organization and the risk of revealing information relating to the representation to persons
outside the organization. Such measures may include among others:
(1) asking for reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation
to appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if
warranted by the seriousness of the matter, referral to the highest authority that can
act on behalf of the organization as determined by applicable law.
(c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority
that can act on behalf of the organization insists upon action, or a refusal to act, that is
clearly a violation of law and is likely to result in substantial injury to the organization,
the lawyer may resign in accordance with Rule 1.16.
(d) In dealing with an organization’s directors, officers, employees, members,
shareholders or other constituents, a lawyer shall explain the identity of the client when
the lawyer knows or reasonably should know that the organization’s interests are adverse
to those of the constituents with whom the lawyer is dealing.
(e) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of Rule
1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the
consent shall be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.
RULE 1.14: CLIENT WITH DIMINISHED CAPACITY
(a) When a client’s capacity to make adequately considered decisions in connection with
a representation is diminished, whether because of minority, mental impairment or for
some other reason, the lawyer shall, as far as reasonably possible, maintain a normal
client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk
of substantial physical, financial or other harm unless action is taken and cannot
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adequately act in the client’s own interest, the lawyer may take reasonably necessary
protective action, including consulting with individuals or entities that have the ability to
take action to protect the client and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is
protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the
lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client,
but only to the extent reasonably necessary to protect the client’s interests.
RULE 1.15: SAFEKEEPING PROPERTY
(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession
in connection with a representation separate from the lawyer’s own property. Funds shall
be kept in accordance with Rule 1.18 and this Rule. Other property shall be identified as
such and appropriately safeguarded. Complete records of such account funds and other
property shall be kept by the lawyer and shall be preserved for a period of five years after
termination of the representation.
(b) Upon receiving funds or other property in which a client or third person has an
interest, a lawyer shall promptly notify the client or third person. Except as stated in this
Rule or otherwise permitted by law or by agreement with the client, a lawyer shall
promptly deliver to the client or third person any funds or other property that the client or
third person is entitled to receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property.
(c) When in the course of representation a lawyer is in possession of property in which
both the lawyer and another person claim interests, the property shall be kept separate by
the lawyer until there is an accounting and severance of their interests. If a dispute arises
concerning their respective interests, the portion in dispute shall be kept separate by the
lawyer until the dispute is resolved.
RULE 1.16: DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct
or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s
ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client
if:
(1) withdrawal can be accomplished without material adverse effect on the
interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the
lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
15
(4) the client insists upon taking action that the lawyer considers repugnant or with
which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer’s services and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a
tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer
shall continue representation notwithstanding good cause for terminating the
representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client’s interests, such as giving reasonable notice to the client,
allowing time for employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee or expense that has
not been earned or incurred. A lawyer is entitled to retain and is not obliged to deliver to
a client or former client papers or materials personal to the lawyer or created or intended
for internal use by the lawyer except as required by the limitations on the retaining lien in
Rule 1.8(i). Except for those client papers which a lawyer may properly retain under the
preceding sentence, a lawyer shall deliver either the originals or copies of papers or
materials requested or required by a client or former client and bear the copying costs
involved.
RULE 1.17: GOVERNMENT EMPLOYMENT
An attorney employed full time by the State of Montana or a political subdivision shall
not accept other employment during the course of which it would be possible to use or
otherwise rely on information obtained by reason of government employment that is
injurious, confidential or privileged and not otherwise discoverable.
RULE 1.18: INTEREST ON LAWYER TRUST ACCOUNTS (IOLTA)
PROGRAM
(a) Purpose. The purpose of the Interest on Lawyer Trust Accounts (IOLTA) program is
to provide funds for the Montana Justice Foundation to pay the reasonable costs of
administering the program and to make grants to entities with missions within the
following general categories:
(1) Providing legal services, through both paid staff program(s) and pro bono
program(s), to Montana’s low income citizens who would otherwise be unable to
obtain legal assistance;
(2) promoting a knowledge and awareness of the law; and
(3) improving the administration of justice.
(b) Required participation. IOLTA program participation is mandatory, except as
provided in subsection (d), below. Every non-exempt lawyer admitted to practice in
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Montana, and/or every law firm composed of any such lawyers, which receives client
funds, shall establish and maintain an interest-bearing trust account for pooled client
funds, termed an “IOLTA Trust Account.” Each lawyer/firm shall also establish separate
interest-bearing trust accounts for individual clients, termed “Client Trust Accounts,”
when appropriate pursuant to this Rule.
(c) Administration.
(1) Deposits of clients’ funds.
(A) All client funds paid to a lawyer/firm, including advances for costs and
expenses, shall be deposited and maintained in one or more identifiable
interest-bearing trust accounts (Trust Accounts) in the State of Montana.
No funds belonging to the lawyer/firm shall be deposited into a Trust
Account except:
(i) funds reasonably sufficient to pay account charges not offset by
interest;
(ii) an amount to meet a minimum balance requirement for the
waiver of service charges; and/or
(iii) funds belonging in part to a client and in part presently or
potentially to the lawyer/firm, but the portion belonging to the
lawyer/firm shall be withdrawn when due unless the right of the
lawyer/firm to such funds is disputed by the client, in which event
the disputed portion shall remain in the account until the dispute is
resolved.
(B) The lawyer/firm shall comply with all Rules relating to preserving the
identity of clients’ funds and property.
(C) Every Trust Account shall be established with a federally-insured and
state or federally regulated financial institution authorized by federal or
state law to do business in Montana. Funds in each Trust Account shall be
subject to immediate withdrawal.
(D) The interest rate payable on a Trust Account shall not be less than the
rate paid to non-lawyer depositors. Higher rates offered for deposits
meeting certain criteria, such as certificates of deposit, may be obtained on
Trust Account funds if immediate withdrawal is available.
(E) Every Trust Account shall bear the name of the lawyer/firm and be
clearly designated as either an IOLTA Trust Account or a Client Trust
Account established under this Rule.
(2) IOLTA Trust Accounts. Every IOLTA Trust Account shall comply with the
following provisions:
(A) The lawyer/firm shall maintain all client funds that are either nominal
in amount or to be held for a short period of time in an IOLTA Trust
Account.
(B) No client may elect whether his/her funds should be deposited in an
IOLTA Trust Account, receive interest or dividends earned on funds in an
IOLTA Trust Account, or compel a lawyer/firm to invest funds that are
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nominal in amount or to be held for a short period of time in a Client Trust
Account.
(C) The determination of whether a client’s funds are nominal in amount or
to be held for a short period of time rests solely in the sound judgment of
each lawyer/firm. No charge of professional misconduct or ethical
impropriety shall result from a lawyer’s exercise of good faith judgment in
that regard.
(D) To determine if a client’s funds should be deposited in an IOLTA Trust
Account, a lawyer/firm may be guided by considering:
(i) the amount of interest the funds would earn during the period
they are expected to be deposited;
(ii) the costs of establishing and administering the account, including
the lawyer’s/firm’s fees, accounting fees and tax reporting
requirements;
(iii) the amount of funds involved, the period of time they are
expected to be held and the financial institution’s minimum balance
requirements and service charges;
(iv) the financial institution’s ability to calculate and pay interest to
individual clients; and
(v) the likelihood of delay in the relevant transaction or proceeding.
(E) The lawyer/firm shall require the financial institution in which the
IOLTA Trust Account is established to:
(i) remit to the Montana Justice Foundation, at least quarterly, all
interest or dividends on the average monthly balance in the IOLTA
Trust Account, or as otherwise computed according to the
institution’s standard accounting practices, less reasonable service
fees, if any;
(ii) with each remittance, provide the Montana Justice Foundation
and the lawyer/firm with a statement showing for which lawyer/firm
the remittance is sent, the period covered, the rate of interest applied,
the total amount of interest earned, any service fees assessed against
the account and the net amount of interest remitted;
(iii) charge no fees against an IOLTA Trust Account greater than
fees charged to non-lawyer depositors for similar accounts, or which
are otherwise unreasonable; and
(iv) collect no fees from the principal deposited in the IOLTA Trust
Account.
(F) Annually the Montana Justice Foundation shall make available a list of
all financial institutions offering IOLTA accounts and meeting this Rule’s
IOLTA depository qualifying requirements. Lawyers/firms shall be entitled
to rely on the most recently published list for purposes of IOLTA Rule
compliance. The Montana Justice Foundation shall pay all service charges
incurred in operating an IOLTA Trust Account from IOLTA funds, to the
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extent the charges exceed those incurred in operating non-interest-bearing
checking accounts at the same financial institution.
(G) Confidentiality. The Montana Justice Foundation shall protect the
confidentiality of information regarding Trust Accounts pursuant to this
Rule.
(3) Non-IOLTA client Trust Accounts. All client funds shall be deposited in an
IOLTA Trust Account, unless they are deposited in a separate interest-bearing
account for a particular client’s matter with the net interest paid to the client. Such
interest must be held in trust as the property of the client as provided in this Rule
for the principal funds of the client.
(d) A lawyer/firm is exempt from this Rule’s requirements if:
(1) the nature of their practice is such that no client funds are ever received
requiring a Trust Account;
(2) the lawyer practices law in another jurisdiction and not in Montana;
(3) the lawyer is a full-time judge, or government, military or inactive lawyer; or
(4) the Montana Justice Foundation’s Board of Directors, on its own motion,
exempts the lawyer/firm from participation in the program for a period of no more
than two years when:
(A) service charges on the lawyer’s/firm’s Trust Account equal or exceed
any interest generated; or
(B) no financial institution in the county where the lawyer/firm does
business will accept IOLTA accounts.
(e) Lawyer filings and records.
(1) Filings. Each lawyer/firm shall file an annual certificate of compliance with or
exemption from this Rule with the Montana Justice Foundation. The certification
must include the name of the lawyer/firm listed on the account, the account
number, and the financial institution name and address. The certification may be
made in conjunction with the annual dues billing process. Failure to provide the
certification may result in suspension from the practice of law in this state until the
lawyer complies with the requirements of this Rule.
(2) Records. Lawyer trust accounts shall be maintained as prescribed by the
Montana Supreme Court in the “Trust Account Maintenance and Audit
Requirements” (adopted February 27, 1989).
(f) Implementation. Implementation will be effected through this Rule and the Rules of
the State Bar of Montana, all as amended and approved by the Montana Supreme Court.
RULE 1.19: SALE OF LAW PRACTICE
A lawyer or a law firm may sell or purchase a law practice, including good will, if the
following conditions are satisfied:
(a) The seller ceases to engage in the private practice of law in the geographic area in
which the practice has been conducted.
(b) The entire practice is sold to one or more lawyers or law firms.
(c) Actual written notice is given to each of the seller’s clients regarding:
19
(1) the proposed sale;
(2) the client’s right to retain other counsel or to take possession of the file; and
(3) the fact that the client’s consent to the sale will be presumed if the client does
not take any action or does not otherwise object within ninety (90) days of receipt
of the notice.
If a client cannot be given notice, the representation of that client may be transferred to
the purchaser only upon entry of an order so authorizing by a court having jurisdiction.
The seller may disclose to the court in camera information relating to the representation
only to the extent necessary to obtain an order authorizing the transfer of a file.
(d) The fees charged clients shall not be increased by reason of the sale.
RULE 1.20: DUTIES TO PROSPECTIVE CLIENTS
(a) A person who consults with or has had consultations with a lawyer about the
possibility of forming a client-lawyer relationship with respect to a matter is a
prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had consultations
with a prospective client shall not use or reveal information learned in the consultation(s),
except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially related matter if the
lawyer received information from the prospective client that could be significantly
harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is
disqualified from representation under this paragraph, no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in such a
matter, except as provided in paragraph (d).
(d) Representation is permissible if both the affected client and the prospective client
have given informed consent, confirmed in writing, or:
(1) the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the prospective client.
COUNSELOR
RULE 2.1: ADVISOR
In representing a client, a lawyer shall exercise independent professional judgment and
render candid advice. In rendering advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social and political factors that may be relevant
to the client’s situation.
RULE 2.2: EVALUATION FOR USE BY THIRD PERSONS
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of
someone other than the client if the lawyer reasonably believes that making the
evaluation is compatible with other aspects of the lawyer’s relationship with the client.
20
(b) When the lawyer knows or reasonably should know that the evaluation is likely to
affect the client’s interests materially and adversely, the lawyer shall not provide the
evaluation unless the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation,
information relating to the evaluation is otherwise protected by Rule 1.6.
RULE 2.3: LAWYERS SERVING AS THIRD-PARTY NEUTRAL
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons
who are not clients of the lawyer to reach a resolution of a dispute or other matter that has
arisen between them. Service as a third-party neutral may include service as an arbitrator,
settlement master, mediator or in such other capacity as will enable the lawyer to assist
the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform all parties that the lawyer is not
representing them. The lawyer shall explain the difference between the lawyer’s role as a
third-party neutral and a lawyer’s role as one who represents a client.
ADVOCATE
RULE 3.1: MERITORIOUS CLAIMS AND CONTENTIONS
(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein:
(1) without having first determined through diligent investigation that there is a
bona fide basis in law and fact for the position to be advocated;
(2) for the purpose of harassment, delay, advancement of a nonmeritorious claim
or solely to gain leverage; or
(3) to extend, modify or reverse existing law unless a bona fide basis in law and
fact exists for advocating doing so.
(b) A lawyer for the defendant in a criminal proceeding, or the respondent in a
proceeding that could result in incarceration, may nevertheless so defend the proceeding
as to require that every element of the case be established.
RULE 3.2: EXPEDITING LITIGATION
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests
of the client.
RULE 3.3: CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s
21
client, or a witness called by the lawyer has offered material evidence and the
lawyer comes to know of its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse
to offer evidence, other than the testimony of a defendant in a criminal matter, that
the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts
known to the lawyer that will enable the tribunal to make an informed decision, whether
or not the facts are adverse.
RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence, unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value, or counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement
to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the justness of
a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person’s interests will not be adversely
affected by refraining from giving such information.
RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited
by law;
(b) communicate ex parte with such a person except as permitted by law; or
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(c) engage in conduct intended to disrupt a tribunal.
RULE 3.6: TRIAL PUBLICITY
(a) A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary
thereto;
(6) a warning of danger concerning the behavior of a person involved, when there
is reason to believe that there exists the likelihood of substantial harm to an
individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in
apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue prejudicial
effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement
made pursuant to this paragraph shall be limited to such information as is necessary to
mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to
paragraph (a) shall make a statement prohibited by paragraph (a).
RULE 3.7: LAWYER AS WITNESS
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is
likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
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RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to,
and the procedure for obtaining, counsel and has been given reasonable opportunity to
obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights,
such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in
connection with sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the prosecutor is relieved of
this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present
evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable
privilege;
(2) the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent
of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain
from making extrajudicial comments that have a substantial likelihood of heightening
public condemnation of the accused and exercise reasonable care to prevent investigators,
law enforcement personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that the prosecutor
would be prohibited from making under Rule 3.6 or this Rule consistent with the
Confidential Criminal Justice Information Act.
RULE 3.9: ADVOCATE IN NONADJUDICATIVE PROCEEDINGS
A lawyer representing a client before a legislative body or administrative agency in a
nonadjudicative proceeding shall disclose that the appearance is in a representative
capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through
(c), and 3.5.
OTHER THAN CLIENTS
RULE 4.1: TRUTHFULNESS IN STATEMENT TO OTHERS
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule
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1.6.
RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY
COUNSEL
(a) In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by
law or a court order.
(b) An otherwise unrepresented person to whom limited representation is being provided
or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for
purposes of this Rule unless the opposing party or lawyer has been provided with a
written notice of appearance under which, or a written notice of time period during
which, he or she is to communicate only with the limited representation lawyer as to the
subject matter within the limited scope of the representation.
RULE 4.3: DEALING WITH UNREPRESENTED PERSON
(a) In dealing on behalf of a client with a person who is not represented by counsel, a
lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or
reasonably should know that the unrepresented person misunderstands the lawyer’s role
in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
The lawyer shall not give legal advice to an unrepresented person, other than the advice
to secure counsel, if the lawyer knows or reasonably should know that the interests of
such a person are or have a reasonable possibility of being in conflict with the interests of
the client.
(b) An otherwise unrepresented person to whom limited representation is being provided
or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for
purposes of this Rule unless the opposing party or lawyer has been provided with a
written notice of appearance under which, or a written notice of time period during
which, he or she is to communicate only with the limited representation lawyer as to the
subject matter within the limited scope of the representation.
RULE 4.4: RESPECT FOR RIGHTS OF THIRD PERSONS
(a) In representing a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay or burden a third person, or use methods of obtaining
evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the
representation of the lawyer’s client and knows or reasonably should know that the
document or electronically stored information was inadvertently sent shall promptly
notify the sender.
LAW FIRMS AND ASSOCIATIONS
RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS, AND
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SUPERVISORY LAWYERS
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable efforts to
ensure that the firm has in effect measures giving reasonable assurance that all lawyers in
the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional
Conduct.
(c) A lawyer within a firm shall be responsible for another lawyer in the firm’s violation
of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies or
ignores the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm
in which the other lawyer practices, or has direct supervisory authority over the
other lawyer, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
RULE 5.2: RESPONSIBILITIES OF A SUBORDINATE LAWYER
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the
lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if the lawyer
acts in accordance with the supervisory lawyer’s reasonable resolution of an arguable
question of professional duty.
RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm, shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that the person’s conduct
is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make
reasonable efforts to ensure that the person’s conduct is compatible with the professional
obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of
the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies or
ignores the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm
in which the person is employed, or has direct supervisory authority over the
person, and knows of the conduct at a time when its consequences can be avoided
or mitigated but fails to take reasonable remedial action.
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RULE 5.4: PROFESSIONAL INDEPENDENCE OF A LAWYER
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm, partner or associate may
provide for the payment of money, over a reasonable period of time after the
lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled or disappeared
lawyer may, pursuant to the provisions of Rule 1.19, pay to the estate or other
representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-
sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that
employed, retained or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the
partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to
render legal services for another to direct or regulate the lawyer’s professional judgment
in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or
association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of
the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable
time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position
of similar responsibility in any form of association other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of a
lawyer.
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW
(a) A lawyer shall not:
(1) practice law in a jurisdiction where doing so violates the regulation of the legal
profession in that jurisdiction; or
(2) assist a person who is not a member of the bar in the performance of activity
that constitutes the unauthorized practice of law.
(b) A lawyer admitted in another jurisdiction, and not disbarred or suspended from
practice in any jurisdiction, may provide legal services in this state to the lawyer’s
employer or its organizational affiliates provided that those legal services are not services
for which Montana requires pro hac vice admission and, when provided by a foreign
lawyer and requiring advice on the law of this or another jurisdiction of the United States,
such advice shall be based upon the advice of a lawyer who is duly licensed and
authorized by the jurisdiction to provide such advice.
For purposes of this subsection, the foreign lawyer must be a member in good standing of
a recognized legal profession in a foreign jurisdiction, the members of which are admitted
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to practice as lawyers or counselors at law or the equivalent, and are subject to effective
regulation and discipline by a duly constituted professional body or a public authority.
RULE 5.6: RESTRICTIONS ON RIGHT TO PRACTICE
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of
agreement that restricts the right of a lawyer to practice after termination of the
relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer’s right to practice is part of the
settlement of a client controversy.
PUBLIC SERVICE
RULE 6.1: PRO BONO PUBLICO SERVICE
Every lawyer has a professional responsibility to provide legal services to those unable to
pay. A lawyer should render at least fifty (50) hours of pro bono publico legal services
per year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the fifty (50) hours of legal services without fee or
expectation of fee to:
(1) persons of limited means; or
(2) charitable, religious, civic, community, governmental and educational
organizations in matters that are designed primarily to address the needs of
persons of limited means; and
(b) provide additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals,
groups or organizations seeking to secure or protect civil rights, civil liberties or
public rights, or charitable, religious, civic, community, governmental and
educational organizations in matters in furtherance of their organizational
purposes, where the payment of standard legal fees would significantly deplete the
organization’s economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited
means; or
(3) participation in activities for improving the law, the legal system or the legal
profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that
provide legal services to persons of limited means.
RULE 6.2: ACCEPTING APPOINTMENTS
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except
for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional
Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the
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lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-
lawyer relationship or the lawyer’s ability to represent the client.
RULE 6.3: MEMBERSHIP IN LEGAL SERVICES ORGANIZATION
A lawyer may serve as a director, officer or member of a legal services organization,
apart from the law firm in which the lawyer practices, notwithstanding that the
organization serves persons having interests adverse to a client of the lawyer. The lawyer
shall not knowingly participate in a decision or action of the organization:
(a) if participating in the decision would be incompatible with the lawyer’s obligations to
a client under Rule 1.7; or
(b) where the decision could have a material adverse effect on the representation of a
client of the organization whose interests are adverse to a client of the lawyer.
RULE 6.4: LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS
A lawyer may serve as a director, officer or member of an organization involved in
reform of the law or its administration notwithstanding that the reform may affect the
interests of a client of the lawyer. When the lawyer knows that the interests of a client
may be materially benefitted by a decision in which the lawyer participates, the lawyer
shall disclose that fact but need not identify the client.
RULE 6.5: NONPROFIT AND COURT-ANNEXED LIMITED LEGAL
SERVICES PROGRAMS
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization
or court, provides short-term limited legal services to a client without expectation by
either the lawyer or the client that the lawyer will provide continuing representation in the
matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the
representation of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated
with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to
the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation
governed by this Rule.
INFORMATION ABOUT LEGAL SERVICES
RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
A lawyer shall not make a false or misleading communication about the lawyer or the
lawyer’s services. A communication is false if it contains a material misrepresentation of
fact or law. A misleading communication includes, but is not limited to those that:
(a) omits a fact as a result of which the statement considered as a whole is materially
misleading;
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(b) is likely to create an unjustified expectation about results the lawyer can achieve;
(c) proclaims results obtained on behalf of clients, such as the amount of a damage award
or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that
past results afford no guarantee of future results and that every case is different and must
be judged on its own merits;
(d) states or implies that the lawyer can achieve results by means that violate the Rules of
Professional Conduct or other law;
(e) compares the quality of a lawyer’s or a law firm’s services with other lawyers’
services, unless the comparison can be factually substantiated;
(f) advertises for a specific type of case concerning which the lawyer has neither
experience nor competence;
(g) indicates an area of practice in which the lawyer routinely refers matters to other
lawyers, without conspicuous identification of such fact;
(h) contains any paid testimonial about, or endorsement of, the lawyer without
conspicuous identification of the fact that payments have been made for the testimonial
or endorsement;
(i) contains any simulated portrayal of a lawyer, client, victim, scene, or event without
conspicuous identification of the fact that it is a simulation;
(j) provides an office address for an office staffed only part time or by appointment only,
without conspicuous identification of such fact;
(k) states that legal services are available on a contingent or no-recovery, no-fee basis
without stating conspicuously that the client may be responsible for costs or expenses, if
that is the case; or
(l) advertises for legal services without identifying the jurisdictions in which the lawyer is
licensed to practice.
RULE 7.2: ADVERTISING
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services
through written, recorded or electronic communication, including public media.
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s
services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by
this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral
service; and
(3) pay for a law practice in accordance with Rule 1.19.
(c) Any communication made pursuant to this rule shall include the name and office
address of at least one lawyer or law firm responsible for its content.
RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit
professional employment from a prospective client when a significant motive for the
lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:
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(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by
written, recorded or electronic communication or by in-person, telephone or real-time
electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited
by the lawyer;
(2) the solicitation involves coercion, duress or harassment;
(3) the lawyer knows or reasonably should know that the physical, emotional or
mental state of the person is such that the person cannot exercise reasonable
judgment in employing a lawyer; or
(4) the lawyer reasonably should know that the person is already represented by
another lawyer.
(c) Every written, recorded or electronic communication from a lawyer soliciting
professional employment from a prospective client known to be in need of legal services
in a particular matter shall include the words “Advertising Material” on the outside
envelope, if any, and at the beginning and ending of any recorded or electronic
communication, unless the recipient of the communication is a person specified in
paragraphs (a)(1) or (a) (2).
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a
prepaid or group legal service plan operated by an organization not owned or directed by
the lawyer that uses in-person or telephone contact to solicit memberships or
subscriptions for the plan from persons who are not known to need legal services in a
particular matter covered by the plan. Lawyers who participate in a legal services plan
must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and
7.3(b). See Rule 8.4(a).
RULE 7.4: COMMUNICATION OF FIELDS OF PRACTICE AND
SPECIALIZATION
(a) A lawyer may communicate the fact that the lawyer does or does not practice in
particular fields of law. A lawyer may also communicate that his/her practice is limited to
or concentrated in a particular field of law, if such communication does not imply an
unwarranted expertise in the field so as to be false or misleading under Rule 7.1.
(b) A lawyer admitted to engage in patent practice before the United States Patent and
Trademark Office may use the designation “Patent Attorney” or a substantially similar
designation.
(c) A lawyer engaged in Admiralty practice may use the designation “Admiralty,”
“Proctor in Admiralty” or a substantially similar designation.
(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular
field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been
approved by an appropriate state authority or that has been accredited by the
American Bar Association; and
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(2) the name of the certifying organization is clearly identified in the
communication.
RULE 7.5: FIRM NAMES AND LETTERHEADS
(a) A lawyer shall not use a firm name, letterhead or other professional designation that
violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not
imply a connection with a government agency or with a public or charitable legal services
organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name or other
professional (e.g., website) designation in each jurisdiction, but identification of the
lawyers in an office of the firm shall indicate the jurisdictional limitations on those not
licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law
firm, or in communications on its behalf, during any substantial period in which the
lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization
only when that is the fact.
MAINTAINING THE INTEGRITY OF THE PROFESSION
RULE 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS
An applicant for admission to the bar, or a lawyer in connection with a bar admission
application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to
have arisen in the matter, or knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority, except that this Rule does not
require disclosure of information otherwise protected by Rule 1.6.
RULE 8.2: JUDICIAL AND LEGAL OFFICIALS
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or appointment
to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable
provisions of the code of judicial conduct.
RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of
Professional Conduct that raises a substantial question as to that lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate
professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable code of
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judicial conduct that raises a substantial question as to the judge’s fitness for office shall
inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6
or information gained by a lawyer or judge while participating in an approved lawyers
assistance program.
RULE 8.4: MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to
achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable
code of judicial conduct or other law.
RULE 8.5: JURISDICTION AND CERTIFICATION
A lawyer who is not an active member in good standing of the State Bar of Montana and
who seeks to practice in any state or federal court located in this State pro hac vice, by
motion, or before being otherwise admitted to the practice of law in this State, shall, prior
to engaging in the practice of law in this State, certify in writing and under oath to this
Court that, except as to Rules 6.1 through 6.4, he or she will be bound by these Rules of
Professional Conduct in his or her practice of law in this State and will be subject to the
disciplinary authority of this State. A copy of said certification shall be mailed,
contemporaneously, to the business offices of the State Bar of Montana in Helena,
Montana.
A lawyer not admitted to practice in this State is subject to the disciplinary authority of
this State for conduct that constitutes a violation of these Rules and that: (1) involves the
practice of law in this State by that lawyer; (2) involves that lawyer holding himself or
herself out as practicing law in this State; (3) advertises, solicits, or offers legal services
in this State; or (4) involves the practice of law in this State by another lawyer over
whom that lawyer has the obligation of supervision or control.
A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules
of a jurisdiction in which the lawyer reasonably believes the predominant effect of the
lawyer’s conduct will occur.
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