Ind. Prof. Cond. Rule 1.0

Effective January 1, 2005

(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) “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 (n) for

the definition of “writing.” See paragraph (e) 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.

(c) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional 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.

(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.

(e) “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.

(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

(g) “Partner” denotes a member of a partnership, a shareholder in a law firm organized as a

professional corporation, or a member of an association authorized to practice law.

(h) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the

conduct of a reasonably prudent and competent lawyer.

(i) “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.

(j) “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.

(k) “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.

(l) “Substantial” when used in reference to degree or extent denotes a material matter of

clear and weighty importance.

(m) “Tribunal” denotes a court, an arbitrator, or any other neutral body or neutral individual

making a decision, based on evidence presented and the law applicable to that evidence,

which decision is binding on the parties involved.

(n) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostatting, photography, audio

or videorecording or e-mail. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person

with the intent to sign the writing.

Comment

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives

informed consent, then the lawyer must obtain or transmit it within a reasonable time

thereafter. If a lawyer has obtained a client's informed consent, the lawyer may act in reli-

ance on that consent so long as it is confirmed in writing within a reasonable time thereafter.

Firm

[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the

specific facts. For example, two practitioners who share office space and occasionally

consult or assist each other ordinarily would not be regarded as constituting a firm.

However, if they present themselves to the public in a way that suggests that they are a

firm or conduct themselves as a firm, they should be regarded as a firm for purposes of

the Rules. The terms of any formal agreement between associated lawyers are relevant

in determining whether they are a firm, as is the fact that they have mutual access to

information concerning the clients they serve. Furthermore, it is relevant in doubtful cases

to consider the underlying purpose of the Rule that is involved. A group of lawyers could

be regarded as a firm for purposes of the Rule that the same lawyer should not represent

opposing parties in litigation, while it might not be so regarded for purposes of the Rule

that information acquired by one lawyer is attributed to another.

[3] With respect to the law department of an organization, including the government, there

is ordinarily no question that the members of the department constitute a firm within the

meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to

the identity of the client. For example, it may not be clear whether the law department of a

corporation represents a subsidiary or an affiliated corporation, as well as the corporation

by which the members of the department are directly employed. A similar question can

arise concerning an unincorporated association and its local affiliates.

[4] Similar questions can also arise with respect to lawyers in legal aid and legal services

organizations. Depending upon the structure of the organization, the entire organization

or different components of it may constitute a firm or firms for purposes of these Rules.

Fraud

[5] When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct that is

characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For

purposes of these Rules, it is not necessary that anyone has suffered damages or relied

on the misrepresentation or failure to inform.

Informed Consent

[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed

consent of a client or other person (e.g., a former client or, under certain circumstances, a

prospective client) before accepting or continuing representation or pursuing a course of

conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to

obtain such consent will vary according to the Rule involved and the circumstances giving

rise to the need to obtain informed consent. The lawyer must make reasonable efforts to

ensure that the client or other person possesses information reasonably adequate to

make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and

disadvantages of the proposed course of conduct and a discussion of the client's or other

person's options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need

not inform a client or other person of facts or implications already known to the client or

other person; nevertheless, a lawyer who does not personally inform the client or other

person assumes the risk that the client or other person is inadequately informed and the

consent is invalid. In determining whether the information and explanation provided are

reasonably adequate, relevant factors include whether the client or other person is exper-

ienced in legal matters generally and in making decisions of the type involved, and

whether the client or other person is independently represented by other counsel in giving

the consent. Normally, such persons need less information and explanation than others,

and generally a client or other person who is independently represented by other counsel

in giving the consent should be assumed to have given informed consent.

[7] Obtaining informed consent will usually require an affirmative response by the client or

other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules

require that a person's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a

definition of “writing” and “confirmed in writing,” see paragraphs (n) and (b). Other Rules

require that a client's consent be obtained in a writing signed by the client. See, e.g.,

Rules 1.8(a) and (g). For a definition of “signed,” see paragraph (n).

Screened

[8] This definition applies to situations where screening of a personally disqualified lawyer

is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or

1.18.

[9] The purpose of screening is to assure the affected parties that confidential information

known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the

other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who

are working on the matter should be informed that the screening is in place and that they

may not communicate with the personally disqualified lawyer with respect to the matter.

Additional screening measures that are appropriate for the particular matter will depend

on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as

a written undertaking by the screened lawyer to avoid any communication with other firm

personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with

the screened lawyer relating to the matter, denial of access by the screened lawyer to firm

files or other materials relating to the matter and periodic reminders of the screen to the

screened lawyer and all other firm personnel.

[10] In order to be effective, screening measures must be implemented as soon as prac-

tical after a lawyer or law firm knows or reasonably should know that there is a need for

screening.

Client-Lawyer Relationship