Alaska R. Prof. Conduct Scope

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 this 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.

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 this other law.

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.

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 1.18. Whether a client-lawyer relationship exists for any

specific purpose can depend on the circumstances and may be

a question of fact.

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 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. They also may have

authority to represent the “public interest” in circumstances

where a private lawyer would not be authorized to do so.

These Rules do not abrogate any such authority. See Botelho

v. Griffin, 25 P.3d 689 (Alaska 2001).

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 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.

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 is a just basis for a

lawyer’s self-assessment, or for sanctioning a lawyer under the

administration of a disciplinary authority, does not imply that

an antagonist in a collateral proceeding or transaction has

standing to seek enforcement of the Rule. Nevertheless, since

the Rules do establish standards of conduct by lawyers, a

lawyer’s violation of a Rule may be evidence of breach of the

applicable standard of conduct.

The COMMENT accompanying each Rule explains and

illustrates the meaning and purpose of the Rule. The Preamble

and this note on Scope provide general orientation. The

COMMENTS are intended as guides to interpretation, but the

text of each Rule is authoritative.

CLIENT-LAWYER RELATIONSHIP