Mont. R. Prof'l Conduct pmbl.

(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 sh ould

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.

For example, a lawyer may counsel and assist a client regarding Montana’s

cannabis-related laws. In the event Montana law conflicts with federal or tribal law, the

lawyer shall also advise the client regarding related federal and tribal law and policy.

(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 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 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 relation ship 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 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 nond isciplinary

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 c ivil 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.